National Housing Trust v YP Seaton & Associates Company Ltd
| Jurisdiction | Jamaica |
| Judge | FRASER J. |
| Judgment Date | 07 March 2011 |
| Judgment citation (vLex) | [2011] 3 JJC 3101 |
| Docket Number | CLAIM NO. 2009 HCV 05733 |
| Court | Supreme Court (Jamaica) |
| Date | 07 March 2011 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Amendment of Statement of Claim after Case Management Conference – Extension of Time to file Affidavit outside of time stipulated by Case Management Order – Principles to be applied
I wish at the outset to thank counsel for their very helpful submissions which provided valuable assistance to the court in deciding the issues raised in this application.
The Application
On February 24, 2011 the claimant, National Housing Trust, filed a Notice of Application for Court Orders. In the application the claimant sought permission to (a) amend its Fixed Dated Claim Form dated and filed the 5 th of November, 2009 (the 2009 FDCF), and (b) to file an affidavit sworn to by Robert Wan one of the arbitrators in arbitration proceedings concluded between the claimant and the defendant.
The application was heard at the pre-trial review on March 7, 2011. The pre-trial review was adjourned to March 31, 2011 pending the court's decision on the application.
Background to the Claim
The Claimant, National Housing Trust, is a statutory corporation established pursuant to the National Housing Trust Act and having its principal place of business at 4 Park Boulevard, Kingston 5 in the parish of Saint Andrew. The Defendant, Y.P. Seaton & Associates Company Limited, is a company incorporated in Jamaica and having its principal place of business at 52c Molynes Road, Kingston 10 in the parish of Saint Andrew.
The claimant and defendant entered into an Agreement in writing dated August 28, 1995 (the Loan or Finance Agreement) whereby the claimant agreed to advance to the defendant, by way of loan, the sum of $187,316,603.00 for the defendant to construct 259 housing solutions comprising 210, 2-bedroom units and 49 serviced lots. The development was to be completed within twenty (20) months of the first advance, subject to any extension of time granted. The defendant was to repay the advances in accordance with the terms of the Loan Agreement.
The first advance was made on November 16, 1995. The development was therefore scheduled to be completed on or about July 16, 1997 subject to any extension of time granted.
In or about October 1997 it became apparent that the defendant would not be completing the development. The parties thereafter engaged in discussions over several months toward a settlement of the issues between them arising from the non-completion of the development. Pursuant to these discussions the claimant and the defendant arrived at a settlement (‘the 1999 Settlement Agreement’), which was embodied in a letter dated July 27, 1999 from Rattray Patterson Rattray, Attorneys-at Law for the defendant to the claimant signed by Debra E. McDonald. This letter was also signed by the claimant and the defendant signifying agreement with its terms.
The 1999 Settlement Agreement however identified certain unresolved issues that were still to be determined either by further negotiations or by arbitration. Pursuant to Section 18 of the Loan Agreement the defendant gave the claimant written notice of arbitration and thereafter the defendant appointed Mr. Robert Evans as arbitrator and the claimant appointed Mr. Robert Wan as arbitrator. Mr. Wan and Mr. Evans then together appointed Dr. Hilton McDavid as umpire.
The arbitration process took some time to materialise. The claimant and the defendant eventually agreed Terms of Reference dated March 31, 2009 and further agreed that the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (as amended) were applicable to the arbitration proceedings.
Pleadings were exchanged between the parties and the arbitration proceedings commenced on the 12 th May 2009 and lasted approximately nine (9) days after which the decision was reserved.
On October 7, 2009 the following arbitration award signed by all three arbitrators was handed down:
The Award Amount shall be $144,660,923.90 (One hundred and forty-four million six hundred and sixty thousand nine hundred and twenty-three dollars and ninety cents) PLUS Legal costs as described in 12.11 PLUS interest on the Award PLUS Interest on the attorney's costs and is payable by the Respondent to the Claimant and is disaggregated as follows:
1. Balance from Final Account ($14,067,408.32)
2. Interest to Date of Award ($91,957,001.37)
3. Devaluation ($31,408,403.71)
4. Costs (excluding Legal Fees, Table above) $7,228,110.65
5. Award = (1+2+3+4 above) = Payment 1 (8.9.11) = $144,660,923.90
6. Attorneys Costs = Payment 2 (8.9.11)
7. Six months Interest 3 on Award Above = Payment 3 (8.9.11)
8. Six months Interest 2 on Attorneys Costs 4 = Payment 4 (8.9.11)
The Agreement allows six months for payment and this period or any succeeding period shall attract interest as described. If payment is immediate there shall be no interest from the date of this award.’
3 Interest is calculated based on of the most recent BOJ weighted average rate from BOJ Economic Digest
4 Six months interest is due on legal fees (because the date for payment is six months after the date of award) and shall be calculated in a similar manner to the interest on the final account amount. See Table
By way of the 2009 FDCF, the claimant sought to challenge the Arbitration proceedings on the basis inter alia that the Arbitrators and/or Umpire misconducted themselves. The claim has been brought based on the fact that under section 12 of the Arbitration Act the court has the power to set aside an arbitration award in circumstances where there has been such misconduct.
On May 6, 2010 at the first hearing of the 2009 FDCF Jones J. made orders including those outlined below:
Orders 1, 2 and 3 have all been complied with.
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a. Defendant to file Particulars of Defence on or before 30 th July 2010;
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b. Claimant to file a further affidavit by 30 th June 2010;
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c. Enforcement of the Arbitration Award be stayed on condition that the Claimant pays the sum of One Hundred and Forty-four Million Six Hundred and Sixty Thousand Nine Hundred and Twenty-three dollars and Ninety Cents ($144,660,923.90) by the 31 st May 2010 in an interest bearing account at Bank of Nova Scotia at the Corner of Duke and Port Royal Streets, Kingston in the names of Rattray, Patterson, Rattray and Livingston, Alexander & Levy until further ordered or until agreed by the parties;
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d. Pre-trial review set for the 7 th March 2011 for 1 hour at 10:00 a.m.;
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e. Trial set for the 2 nd May, 2011 for 5 days…
The Notice of Application for Court Orders dated February 24, 2011 filed by the claimant and heard on the date set for the pre-trial review, sought permission (1) to amend the 2009 FDCF and (2) to file a further affidavit, that of Robert Wan. The defendant opposed both orders sought.
The Issues Raised by the Application
Two main issues are raised by the application:
a. Issue 1: The Proposed Amendments and Attendant Costs
i. Should the court grant permission for some or all of the amendments Sought;
ii. What orders should the court make in relation to costs consequent on the grant or refusal of permission to amend;
b. Issue 2: The Further Affidavit
i. Should the court grant permission for the filing of the affidavit of Robert Wan
I will address these issues in turn.
Issue 1: The Proposed Amendments and Attendant Costs
The Law
The Civil Procedure Code (2002) as amended in 2006 (the CPR) provides in rule 20.4(2) as follows:
‘Statements of case may only be amended after a case management conference with the permission of the court.’
The rule in its current form is a result of the amendments made to the CPR in 2006 which have given the court wide powers. As Sykes J. observed in the case of Peter Salmon v Master Blends Feeds Ltd C.L. 1991/S163, (October 26, 2007) at paragraph 22 of his judgment:
The amended rule 20.4 (amendments came into effect on September 18, 2006) confers powers of amendment on the court. Under the original rule 20.4 the court could not grant an amendment of a statement of case after the first case management conference unless it was necessary because of a change in circumstances which became known after the date of that case management conference (see Campbell v National Fuels & Lubricants Claim No. C.L. 1999/ C 262 (delivered November 2, 2004) ). The amended rule 20.4 has removed this restriction. The amended rule has not laid down any precondition or stated any criterion for the exercise of the discretion. This means that the application of the rule is governed exclusively by the overriding objective.
The effect of this 2006 amendment is that the court now has a very wide discretion in relation to the granting of permission to amend statements of claim. Guidance on the exercise of this discretion is to be found in relevant case law. Counsel for the claimant relied in his submissions in support of the application, on the cases of Cropper v Smith (1884) 26 Ch. D 700; The Attorney-General v. Maurice Francis Unreported SCCA 13/95 (March 26, 1999); and Cobbold v London Borough of Greenwich (Unreported August 9, 1999) (United Kingdom) Civil Procedure 2009 (the White Book), volume 1 at 17.3.5.
It was submitted by counsel for the claimant that although the first two cases were decided prior to the new CPR, those decisions are in line with the court's overriding objective of dealing with cases justly (CPR r 1.1(2)). Further he submitted that the power of the court in these cases in adjudicating on an application to amend is in line with the power of the court post 2006. The third unreported case was decided on the English rule which is in the same terms as the CPR r. 20.4.
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