National Housing Development Corporation v Danwill Construction Ltd, Warren Sibblies and Donovan Hill

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 04 May 2007
• Judgment citation (vLex): [2007] 5 JJC 0401
• Date: 04 May 2007
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NOS. 2004 HCV 000361 & 2004 HCV 000362

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NOS. 2004 HCV 000361 & 2004 HCV 000362

BETWEEN

NATIONAL HOUSING DEVELOPMENT CORPORATION

CLAIMANT/RESPONDENT

AND

DANWILL CONSTRUCTION LIMITED

1 ^ST DEFENDANT/APPLICANT

AND

WARREN SIBBLES

2 ^ND DEFENDANT

AND

DONOVAN HILL

3 ^RD DEFENDANT

^st

^{nd rd}

IN CHAMBERS

CIVIL PROCEDURE - Statement of case - Application to amend after Case Management conference

1 Practice and Procedure - Application to amend Statement of Defence after first Case Management Conference - Principles guiding application - Application for order to deliver further information

BROOKS, J

2 The extensive amendments made in 2006 to the Civil Procedure Rules 2002 (CPR) have resulted in a welcome change to the provisions concerning applications to amend a party's statement of case after a first Case Management Conference. In this two-part application Danwill Construction Limited has, firstly, applied to amend its statement of defence. It wishes, it says, to state more particulars in its defence. The application is opposed by the National Housing Development Corporation ("the NHDC") which has brought this claim against Danwill. The NHDC's attorney, Mr. Powell submitted that the amendments sought, do not raise any new arguable claim and ought to be refused under the court's guiding principle of seeking to deal with cases justly.

3 The questions which arise are firstly, what principles guide the court in assessing such applications, in the context of the amended CPR, and secondly, how should these principles be applied to these circumstances.

4 The factual background

5 Danwill had separate contracts with two developers to construct houses and infrastructure works on lands which the developers controlled. The NHDC was the developer's financier in each case. The construction contracts were terminated and this claim by the NHDC seeks to recover a total sum in excess of $200,000,000.00 it says it has paid to Danwill on behalf of the developers.

6 The NHDC alleges that the payments were induced by fraudulent misrepresentations made by Danwill and the other Defendants in the context of an unlawful conspiracy between the Defendants to injure the NHDC. The alleged misrepresentations are claims for payment for and certification of, work said to have been done by Danwill, when that work was in fact either not done, or was significantly overvalued. Danwill denies the allegations made against it, and says that it has provided value for money.

7 It is significant to note that there was no contract between the NHDC and Danwill.

8 The Statement of Case

9 Danwill's original defence, asserted four general positions:

• a. It was not aware of the arrangements between the NHDC and the individual developers.

• b. It proceeded with the construction, and claimed payments in respect of work done, on the basis of specific engineering designs and bills of quantities and in accordance with the "internationally accepted "Conditions of Contract for works of Civil Engineering Construction of the Federation International DES Ingenierus-Consuls"".

• c. There were variations to the project because of faulty and inadequate design plans, additional requests made by the developer, natural occurrences and unexpected characteristics in the project lands. These increased the cost of the work done.

• d. The NHDC improperly interfered in the contract between Danwill and each developer, wrongly sought to terminate the contracts on behalf of the developers and failed to afford the parties to each contract the opportunity of proceeding to arbitration, as was stipulated by the contract.

10 The Application

11 The application to amend the defence touches on four areas:

• a. Specifying what was provided for in the bills of quantities (paragraph 8A)

• b. Specifying what was provided for in the contract between Danwill and each developer (paragraphs 16A and 21A).

• c. Presenting an alternative offer by Danwill to perform all its obligations under the contract (paragraph 18A).

• d. Alleging the NHDC's failure to follow the terms of the contract concerning discrepancies and overpayments (paragraph 21 A).

12 Some of the proposed amendments are quite lengthy and I do not think it is necessary to set them out in full.

13 The affidavit in support of the application is sworn to by Mr. Danhai Williams, the Managing Director of Danwill. He asserts that Danwill was obliged to prepare and file its statement of defence within a time limit, which in the circumstances, did not allow for all the relevant documentation to be located. Since that filing, "numerous additional documents" have been located which provide Danwill, "with more precise and particular means by which to defend the claim...". The preparation and filing of the document were done after the first case management conference and therefore Danwill did not have an opportunity to amend its statement of defence without permission, as is provided for in the CPR. Mr. Williams asserts that the NHDC will not suffer any prejudice as a result of the proposed amendments.

14 The Law

15 The relevant provision of the amended CPR concerning this application is rule 20.4. It states, in part, as follows:

• "(1) An application for permission to amend a statement of case may be made at the case management conference.

• (2) Statements of case may only be amended after a case management conference with the permission of the court.

16 Apart from the overriding objective, there is no guidance provided in the rules in respect of the principles governing the grant or refusal of permission to amend. The relevant rule which existed prior to the amendment of the CPR was quite restrictive, as it provided that the court could not give permission unless the applicant could show some change in circumstances since the date of the Case Management Conference. That restriction produced some hardship and even some curious results. The amended rule gives the court far more latitude, but of course, there should be some guiding principles which will allow for parties and their legal representatives to proceed with a degree of assurance as to the likely outcome of such applications.

17 The purpose of statements of case is essentially to determine what each party says about the case. In his work; A Practical Approach to Civil Procedure, 7 ^th Edition, Stuart Sime, at p. 134 outlines the functions of statements of case to include:

• "(a) Informing the other parties of the...