Medley-Rowe (t/a Wireless Talk) v Saturn Sales Manufacturing Company Ltd and another

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 22 April 2008
• Judgment citation (vLex): [2008] 4 JJC 2201
• Docket Number: CLAIM NO. 2006 HCV 00705
• Court: Supreme Court (Jamaica)
• Date: 22 April 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2006 HCV 00705

IN CHAMBERS

BETWEEN

CYNTHIA MEDLEY-ROWE (trading as Wireless Talk)

CLAIMANT

AND

SATURN SALES MANUFACTURING COMPANY LIMITED

1 ^ST DEFENDANT

AND

ALTHEA CROSDALE

2 ^ND DEFENDANT

Practice and Procedure - Application for relief from sanctions - Judgment entered because of failure to attend Case Management Conference - Application to set aside judgment - Factors to be considered - CPR rule 26.8

Practice and Procedure - Consent Order referring accounts to accountant - Whether parties estopped from objecting to the findings of the accountants

CIVIL PROCEDURE - Consent Order - Order referring accounts to accountant - Whether parties estopped from objecting to the findings of the accountant

CIVIL PROCEDURE - Sanctions - Relief from sanctions - Application - Failure to attend Case Management conference - Judgment entered - Application to set aside - Factors to be considered - Civil Procedure Rules 26.8

BROOKS, J

1 Mrs. Cynthia Medley-Rowe is a wholesaler of cellular phone cards to the public. She, for her part, purchased the cards from Saturn Sales Manufacturing Co. Ltd. In February 2006, Mrs. Medley-Rowe filed the present claim against Saturn Sales and one of its employees Althea Crosdale. The particulars of claim allege that because of deliberate mishandling of her account with Saturn Sales, she had overpaid Saturn Sales sums in excess of $22,000,000.00. Saturn Sales, in turn, asserts that it is she who owes it over $8,000,000.00 on a taking of accounts between the two.

2 On 21 ^st February 2008, Master Lindo struck out her claim and ordered judgment on the counter-claim, because of Mrs. Medley-Rowe's failure to attend a case management conference. She now applies for relief from sanctions on the basis that the non-attendance at the appointed time was due to a mistake as to the time of the conference. Mr. Philpotts-Brown, on behalf of the Defendants, vigorously opposed the application, highlighting, among other things, a history of previous defaults by Mrs. Medley-Rowe.

3 The issue to be determined is whether Mrs. Medley-Rowe has satisfied the requirements of rule 26.8 of the Civil Procedure Rules (CPR), to allow the court to grant her the relief which she seeks.

4 Assessment of the application

5 Rule 26.8 governs the matter of relief from sanctions. I shall examine the application in the context of the provisions of the rule.

6 Rule 26.8(1)

7 The application was filed the day following the Master's order. I shall treat the terms of rule 26.8 (1) as having been complied with, as the application was filed promptly and was supported by an affidavit.

8 Rule 26.8 (2)

9 Rule 26.8 (2) provides:

"The court may grant relief only if it is satisfied that -

• (a) the failure to comply was not intentional;

• (b) there is a good explanation for the failure; and

• (c) the party in default has generally complied with all other relevant rules, practice directions orders and directions." (Emphasis supplied.)

10 Mrs. Medley-Rowe is obliged to satisfy all three requirements of the rule. (See the judgment of P. Harrison J. A. (as he then was) in International Hotels Jamaica Ltd. v. New Falmouth Resorts Ltd. (SCCA 56 and 95 of 2003, delivered November 18, 2005) (page 3). I have highlighted the word "only" because it imposes a severe restriction which will be considered later.

11 In respect of the first requirement, Mr. Stewart, her attorney-at-law deposed that he and Mrs. Medley-Rowe failed to attend at the appointed time because of a scheduling error. They attended at the Master's chambers at 3:00 p.m. on the 21 ^st in the mistaken belief, that the hearing was scheduled for 3:30 p.m. Mrs. Medley-Rowe had in fact driven to the Supreme Court from Montego Bay, over a hundred miles away, in order to attend. She had complied with the other orders made by the Master on 4 February, which was the date of the hearing, when the order to attend on the 21 ^st had been made. Having got to the Master's chambers, at 3:00 p.m., it was then that the Master informed Mr. Stewart of the order made at 9:30 a.m. I am prepared to accept, on this explanation, that the failure was not intentional.

12 I am also prepared to accept that there is a good explanation for the failure. Inadvertence has been accepted as a good explanation for the failure of counsel to attend a hearing. In Edward Seaga v Western Broadcasting and others C.L. S. 243 of 1999 (delivered 15/12/2006) Campbell, J. granted relief from sanctions where the failure to attend was due to a misapprehension as to the date of the hearing. In the instant case, it is noteworthy that Mr. Stewart was not the attorney who represented Mrs. Medley-Rowe on 4 ^th February 2008, when the Master made the order to attend. I also note that the first order on the minute of order then made, speaks to a deadline of 3:00 p.m. It is conceivable that that also was a basis for the mistake being made. I do not seek to provide an excuse for Mrs. Medley-Rowe, but I adopt the words of Campbell J, in saying, it "is safe to assume that the misapprehension [by the attorney-at-law] contributed to the absence of the [party]" (paragraph 20 of Seaga v Western Broadcasting ).

13 Although the English cases on this issue must be read with a careful appreciation of the differences between the relevant rules, one may note that relief was granted, in circumstances similar to the instant case, in Southwark London Borough Council v Onayomake [2007] EWCA Civ. 1426. There, Mr. Onayomake's statement of case had been struck out for failure to attend a further case management conference. It was not his first...