Melissa Lewis v Noel Lewis

• Jurisdiction: Jamaica
• Judge: Master T. Dickens
• Judgment Date: 30 January 2023
• Docket Number: CLAIM NO. 2018HCV036
• Court: Supreme Court (Jamaica)

Between

Melissa Lewis

1 ^st Claimant

and

Joan Lindsay Lewis

2 ^nd Claimant

and

Noel Lewis

1 ^st Defendant

and

Jennifer Elaine Roye

2 ^nd Defendant

[2023] JMSC Civ. 124

Master T. Dickens (AG.)

CLAIM NO. 2018HCV036

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Civil Procedure — Relief from Sanction — whether the application was promptly made — whether the failure to comply was not intentional — whether there is a good explanation for the failure to comply

IN CHAMBERS

Georgia Hamilton instructed by Georgia Hamilton and Company Attorneys-at-Law for the Claimant

Jamila Thomas and Judith Clarke instructed by Judith Clarke and Company for the 2 ^nd Defendant

Master T. Dickens (AG.)

INTRODUCTION

1 This is the Claimants' application for relief from sanction for failure to file and serve witness statements within the time prescribed by Case Management Order.

2 The substantive claim was filed on September 26, 2018, wherein the Claimants seek declaratory relief and damages, inter alia, on account of certain alleged fraudulent acts carried out by the Defendants in relation to lands forming part of Lynch and Ballards Patent called Dunder Hill in the parish of St. Elizabeth comprised in the Certificate of Title registered at Volume 1490 Folio 884 of the Register Book of Titles.

3 The matter came on for Case Management Conference on July 19, 2021 before Stamp J., who ordered that witness statements be filed and exchanged by July 1, 2022. On December 6, 2021, Master Orr (as she then was), in order to facilitate an early trial of the claim, varied the orders of Stamp J. in part, ordered that witness statements were to be filed and served by May 13, 2022 and scheduled a Pre-Trial Review Hearing for June 15, 2022 at 10:00 a.m.

4 The Claimants filed their witness statements on November 9, 2022 and now seek relief from sanction for failure to file and serve witness statements in keeping with the orders of the Court.

THE APPLICATION

5 The Claimants' application for relief from sanction was filed on November 4, 2022 and is supported by the Affidavit of Gytanna Pinnock sworn and filed November 4, 2022, the Affidavit of Ashley Clarke sworn and filed November 11, 2022 and a further Affidavit of Ashley Clarke filed November 28, 2022.

6 The Court finds it apposite at the outset to state that the relevant court order for the purpose of this application for relief from sanction is that of Master Orr (as she then was) dated December 6, 2021, which required witness statements to be filed and served by May 13, 2022. This is necessary as the Affidavit of Gytanna Pinnock identifies the order of Stamp J. dated July 19, 2021 as the order which the Claimants failed to comply with, regarding the filing of their witness statements.

7 The said Affidavit of Gytana Pinnock outlines that the Claimants were not able to complete their witness statements in time due to a series of “unexpected and unfortunate events”. Ms Pinnock depones that in June 2022, the 1 ^st Claimant contracted Covid-19 and was unwell for a considerable time thereafter. She also depones that counsel, Ms Hamilton, also contracted Covid-19 in late June 2022, which resulted in junior counsel, Ms Ashley Clarke, being the only attorney in office and she was unable to meet the firm's deadlines. Ms Pinnock further depones that on August 17, 2022, the Firm (Georgia Hamilton & Co.), made a request for information from the Defendants' (sic) attorneys-at-law and that they responded, refusing to produce documents.

8 The Affidavit of Ashley Clarke filed November 11, 2022, outlines that service of the Claimants' witness statements filed November 9, 2022, was attempted at the office of the 2 ^nd Defendants' attorneys-at-law on the same day, but said service was rejected. The Affidavit of Ashley Clarke filed November 28, 2022, chronicles challenges faced by the Claimants and counsel for the Claimants, between June to October 2022.

9 The 2 ^nd Defendant has not filed any affidavit in response to the Claimants' application for relief from sanction.

10 I have had regard to the written submissions of the Claimants contained in Bundle filed November 11, 2022, further submissions filed February 3, 2022, as well as oral submissions before the Court. I have equally had regard to the written submissions of the 2 ^nd Defendant contained in Bundle filed January 10, 2023 and further submissions of the 2 ^nd Defendant filed February 7, 2023 and oral submissions on the application before the Court.

THE CLAIMANTS' SUBMISSIONS

11 The Claimants' counsel submits that the application was made promptly. Counsel further submits that the Claimants' application for inspection was made long before an order for the filing and service of witness statements was made. By that application, the Claimants seek to inspect and take copies of all deeds, instruments and documents retained by the Registrar of Titles evidencing the 1 ^st Defendant's title to property comprised in Certificate of Title registered at Volume 1490 Folio 884 of the Register Book of Titles. The said application was filed on June 11, 2021, amended on June 23, 2021 and further amended on May 20, 2022. The Claimants' counsel submits that as there was no inspection they were unable to file witness statements.

12 Counsel further submits that the question of “promptitude” must be assessed by reference to the circumstances of the case and asks the Court to view the application for relief from sanction filed on 4 November 2022, in the context of an earlier application seeking an extension of time to file witness statement filed May 20, 2022, as well as the notice given in their Listing Questionnaire. Counsel relies on the decision of Nardia Beatrice Clarke (Executrix of the Will of Erolita Rancharan) v Nairoba Rancharan, unreported, decision of the Supreme Court of Belize, decided April 2, 2019.

13 The Claimants' counsel also submits that the failure to file witness statement was not intentional and that there is a good explanation for the failure. In particular, she highlights that the developments which hindered the Claimants in complying with the order to file and serve witness statements should be accepted as good explanations for their failure to file witness statements, namely, the death of the 1 ^st Claimant's brother in June 2022 and counsel for the Claimants contracting Covid-19 in the same month.

14 Counsel submits that the Claimants have filed all that is required of them and the only documents to be served have not been served as the 2 ^nd Defendant has refused to accept service and asks that they be treated as being generally compliant in the circumstances of this case.

THE 2 ^ND DEFENDANT'S SUBMISSIONS

15 Counsel for the 2 ^nd Defendant, Ms. Thomas, submits that the Claimants have failed to comply with rule 26.8(1) of the Civil Procedure Rules (“the CPR”), in that the application was not made promptly and the evidence they seek to rely on in support of their application for relief from sanction in the Affidavit of Gytana Pinnock filed on November 4, 2022 does not comply with rule 30.3 of the CPR and therefore cannot be considered by the Court.

16 Counsel further submits that even if the Claimants were to be found to have satisfied the requirement of promptitude, they would also have to satisfy the requirements of rule 26.8(2), failing which the Court would be unable to proceed to consider the requirements of rule 26.8(3) and to grant the relief sought.

17 The 2 ^nd Defendant's counsel submits that the Claimants are unable to pass the three (3) requirements set out in rule 26.8(2), and therefore this Court would be unable to exercise its discretion in favour of their application since a failure to meet just one of these three (3) requirements is fatal to an application for relief from sanctions. The 2 ^nd Defendant's counsel relies on the authority of H.B. Ramsay and Associates Limited et al v Jamaica Redevelopment Foundation and Another [2013] JMCA Civ 1.

ISSUE (S)

18 The issue to be determined by this Court is whether the Claimants should be granted relief from sanction and in particular:

• i) whether the application for relief from sanction was made promptly;

• ii) whether the failure to comply was not intentional;

• iii) whether there is a good explanation for the failure to comply; and

• iv) whether the Claimants have generally complied with rules, orders and directions of the court.

LAW AND ANALYSIS

19 Pursuant to rule 29.11 of the CPR, a party who has failed to serve a witness statement within the time specified by the Court may not call that witness unless the Court permits and the party is required to seek relief from sanction pursuant to rule 26.8 of the CPR.

20 Rule 26.8 of the CPR, treats with applications for relief from sanction and provides that:

“26.8 (1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be–

• (a) made promptly; and

• (b) supported by evidence on affidavit.

(2) 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.

(3) In considering whether to grant relief, the Court must have regard to–

• (a) the interests of the administration of justice;

• (b) whether the failure to comply was due to the party or that party's attorney-at-law;

• (c) whether the failure to comply has been or can be remedies within a reasonable time;

• (d) whether the trial date or any likely trial date can still be met if relief is granted;

• (e) the effect which the granting of relief or not would have on each party.

(4)…”

21 Rule 26.8(1)(a) and (b) require that an application for relief from sanction be made promptly and be supported by affidavit...