Noel Green v Garbage Disposal & Sanitation Systems Ltd

• Jurisdiction: Jamaica
• Judge: Campbell J
• Judgment Date: 30 October 2015
• Neutral Citation: [2015] JMSC Civ 206
• Docket Number: THE CIVIL DIVISION CLAIM NO: 2011 HCV 01287 CONSOLIDATED WITH CLAIM NO: 2011 HCV 01288 CONSOLIDATED WITH CLAIM NO: 2011 HCV 01289
• Court: Supreme Court (Jamaica)
• Date: 30 October 2015

[2015] JMSC Civ 206

IN THE SUPREME COURT OF JUDICATURE

THE CIVIL DIVISION CLAIM NO: 2011 HCV 01287

CONSOLIDATED WITH CLAIM NO: 2011 HCV 01288

CONSOLIDATED WITH CLAIM NO: 2011 HCV 01289

Between

Noel Green

Claimant

and

Garbage Disposal & Sanitation Systems Limited

Defendant

Between

Laureston Lowe

Claimant

and

Garbage Disposal & Sanitation Systems Limited

Defendant

Between

Dockery Forbes

Claimant

and

Garbage Disposal & Sanitation Systems Limited

Defendant

Civil Procedure — Application to strike out Defendant's Statement of Case — Non-compliance with Case Management Conference Orders — Documents filed outside of the prescribed time — Defendant's Application for Relief from Sanctions — Application not made promptly — No Good Explanation for Delay after filing the Witness Statement and Summary — Delay Unintentional — Whether in the circumstances the Defendant's Statement of Case should be struck.

Campbell J

1 [1] On the 18 ^th March 2011, the Claimants commenced proceedings against the Defendant, seeking damages for personal injuries, loss and expenses resulting from a motor vehicle accident which occurred on 20 ^th October 2009 along Port Henderson Road, St. Catherine.

2 [2] The Claimants allege that Dockery Forbes, who was driving a motorcar in which they were travelling, had stopped to make a right turn, when the Defendant's truck collided in the rear of their vehicle.

3 [3] The Defendant, on the other hand contends that whilst negotiating a corner, he came upon the Claimant's motorcar that had stopped on the corner in the left lane. It displayed no brake lights or indicator. The said vehicle was on the road way around the corner which created a nuisance.

4 [4] On 16 ^th May 2013, at a Case Management Conference, Mrs. Justice George made several Orders, including that, ‘ Parties to file and serve witness statement on or before the 24th day of January, 2014 and Parties to provide standard disclosure on or before 30 ^th September 2013 .” The Defendant has failed to comply with these Orders.

5 [5] On 31 ^st January 2014, the Claimant filed a Notice of Application for Court Orders, to strike-out the Defendant's case and for Summary judgment. The Defendant responded by filing, a witness summary and a witness statement, some seventeen (17) and eighteen (18) days respectively after the deadline set at Case Management Conference.

6 [6] On the 24 ^th March 2014, Mr. Justice Sykes refused the Claimants' application to strike-out the Defendant's Statement of Case and for Summary Judgment. The essence of the application was the failure of the Defendant to comply with the Case Management Conference orders. The Defendant was penalized in costs. The court ordered that there be no further pre-trial review.

7 [7] On the 7 ^th May 2014, the Defendant filed an Amended Notice of Application for Court Orders seeking the following Orders, inter alia;

• 1. That there be an abridgement of the time within which to serve this Notice of Application for Court Orders;

• 2. That the List of Documents filed on the 21 ^st day of January, 2014, the Witness Summary and Statements filed on the 11 ^th February 2014 and 12 ^th February 2014 stand as being filed;

• 3. That there be further amendments to the Amended Defence which was filed on the 10 ^th day of October 2012.

• 4. The Defendants be granted relief from sanctions pursuant to Rule 26.8 of the CPR.

8 [8] The grounds on which the Orders are sought are;

• i. On the 31 ^st day of May 2013, the above-captioned matter came up for Case Management Conference Hearing before the Honourable Mrs. Justice S. George, the Learned Master made orders that the parties were to provide standard disclosure on or before September 30, 2013 and the parties to file and serve Witness Statements on or before the 24 ^th day January, 2014 among other things. Further, the Pre-trial Review was scheduled for the 12 ^th day of February 2014 and the Trial dates scheduled for the 26 ^th –28 ^th day of May 2014.

• ii. That Ms. Stacia Pinnock Wright, Attorney-at-Law for the Defendant, in attempting to comply with the said order took instructions and settled theList of Documents on January 24, 2014 and the Witness Statement and Witness Summary of the Defendant and filed the same on February 11 and 12, 2014 respectively.

• iii. The failure to file the abovementioned documents within the time as specified in the Order was due to the fact that it took some time to locate the driver of the Defendant's motor vehicle. The said driver is no longer employed to the Defendant. An Investigator was retained to locate him and was able to do so enabling the signing of the Witness Statement.

• iv. The failure to file the said document within the time specified was not intentional or contumelious. Moreover, there is no prejudice to the Claimants.

• v. The further amendments to the Amended Defence filed on the 10 ^th day October, 2012 is necessary to determine the real controversies in dispute. The Claimant would not be prejudiced of the amendments as they had notice of the Defendant's position that it was the Defendant's authorized driver's evidence that the vehicle in which the Claimants were driving was in a stationary position and was a nuisance.

• vi. The record indicates that the Defendant has to date complied with all the other orders of the Court in this matter.

9 [9] The Defendant's application was to be heard on 14 ^th May 2014, twelve (12) days before the trial date of the 26 ^th –28 ^th May 2014. On the trial date Mr. Justice Batts, ordered pre-trial review for December 15 ^th , 2014, after the learned judge heard the Defendant's application that his application be treated as a preliminary point at trial.

The relevant Rules concerning sanctions

10 [10] Rule 26.7(2) of the Civil Procedure Rules (CPR) provides that; where a party has failed to comply with any of these Rules, a direction or any order, any sanction for non-compliance imposed by the rule, direction or the order has effect unless the party in default applies for and obtains relief from the sanction, and rule 26.9 shall not apply.’

• • Rule 27.11 (3) of the CPR , provides that; ‘a party seeking to vary any other date in the time-table without the agreement of the other parties must apply to the court, and the general rule is that the party must do so before that date.’

  Subsection (4) provides that; ‘a party who applies after that date must apply —

  • (a) for relief from sanction from any sanction to which the party has become subject under these rules or any court order; and

  • (b) for an extension of time.’

• • Rule 28.14(1) of the CPR provides; ‘a party who fails to give disclosure by the date ordered or to permit inspection may not rely on or produce any document not so disclosed or made available at inspection at the trial.’

• • Rule 29.11(1) of the CPR provides; ‘where a witness statement or witness summary is not served in respect of an intended witness within the time specified by the court then the witness may not be called unless the court permits.’

  Subsection (2) provides that; ‘ the court may not give permission at the trial unless the party asking for permission has a good reason for not previously seeking relief under rule 26.8.’

11 [11] The Civil Procedure Rules provides guidance in this area of law. Part 26.8(1) of the CPR which speaks to Relief from Sanction states that 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.

Subsection (2) provides that 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.

Subsection (3) outlines several considerations that the court must have regard to in granting the relief. These are as follows —

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

  ...