Paulette Bailey et Al v Incorporated Lay Body of the Church in Jamaica and the Cayman islands in the Province of the West Indies
| Jurisdiction | Jamaica |
| Judge | HARRISON, J.A : , PANTON, J.A. , McCALLA J.A. (Ag.): : |
| Judgment Date | 25 May 2005 |
| Neutral Citation | JM 2005 CA 21 |
| Judgment citation (vLex) | [2005] 5 JJC 2507 |
| Court | Court of Appeal (Jamaica) |
| Date | 25 May 2005 |
JAMAICA
IN THE COURT OF APPEAL
CIVIL PROCEDURE - Judicial jurisdiction
This is an application to set aside leave to appeal granted by Campbell, J on October 22, 2004, from his order made on October 14, 2004, refusing an application for variation of Case Management timetable in order to file an amended defence and a witness statement of one Superintendent Carl Major.
Amendments of the statements of case under the current Civil Procedure Rules 2002, (unlike the former Civil Procedure Code Law) which permitted amendments at any stage of the proceedings - are allowed within controlled stages. Rule 20.1 provides, generally:
"20.1 A party may amend a statement of case at any time before the case management conference without the court's permission ..."
The court's permission may be obtained on application but its discretion is not unlimited. Rule 20.4 (2) reads:
"(2) The court may not give permission to amend a statement of case after the first case management conference unless the party wishing to make the amendment can satisfy the court that the amendment is necessary because of some change in the circumstances which became known after the date of that case management conference."
A Case Management Conference was held on October 6, 2003, in respect of the writ and statement of claim filed on July 31, 2002, and various orders were made. Included therein was the pre-trial review fixed for January 20, 2004, and the trial fixed for April 29 and 30, 2004.
The appellants/defendants Paulette and Edward Bailey ("the Bailey descendants") applied on November 26, 2003, to vary the Case Management timetable and obtain further orders, including an amendment that the name "Evadney" be substituted by the name "Ina". The permission to amend was granted by Anderson, J on January 20, 2004. However, the amended defence filed on February 6, 2004, included an allegation of fraud, namely that:
"... the signature of Ina M. Bailey was secured by fraud."
This was an amendment not ordered by Anderson, J.
Consequently, the respondent/claimant ("the Church") applied on March 8, 2004, that the unauthorized portions of the amended defence be struck out on the ground, inter alia, that there was no evidence of change in circumstances arising after the Case Management Conference on October 6, 2003.
On the trial date on April 24, 2004, Mrs. Justice Marva Mcintosh granted an adjournment and fixed a second Case Management Conference for October 14, 2004, when Campbell, J refused the application for variation of the timetable and adjourned the Case Management which he completed on October 22, 2004, and gave leave to appeal. In his reasons Campbell, J, inter alia, said:
"... The Defendants have not satisfied the Court that the Amendment sought is necessary because of some change in circumstances taking place after the Case Management Conference."
As stated earlier, this is an appeal from the said leave granted.
The over-riding objective of the new Rules of Procedure is the prompt disposal of cases and saving expense, in doing justice between the parties.
Rule 1.8(9) of the Court of Appeal Rules 2002 reads:
"The general rule is that permission to appeal will only be given if the Court or the Court below considers that an appeal will have a real chance of success."
In Swain v Hillman [2001] 1 All ER 91, a case relied on by Mr Vassell, Q.C., in construing the term "real prospect" of success, which term is employed in Rule 52.13(6) of the Civil Procedure Rules, 1998 (UK), which is in pari materia with Rule 1.8(9), Lord Woolf, Master of the Rolls said that the said words:
"... direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success."
The question which arises in the instant application is, whether or not there is any "real chance of success" in respect of the appeal from the order of Campbell, J refusing the application to amend the defence to include the allegation of fraud.
From the outset, the defence filed dated November 28, 2002, in paragraph 1, p. 4, of the record, reads:
"1. The Defendants deny that Miss Ina Louise Bailey transferred to herself and the Plaintiff all the estate and interest in ALL THAT parcel of land part of Kensington Crescent in the parish of Saint Andrew as she was suffering from senility at that time and hence incapable of understanding the nature of the contract."
This was a reference to the transfer on May 27, 1977. Implicit in this pleading is not a denial that Ina did sign, but that because of her senility then, she was unable to understand "the nature of the contract." The defendants' answers dated July 7, 2003, to the request for further and better particulars emphasize that stance.
Furthermore, the witness statement of Paulette Bailey, one of the Bailey descendants, dated November 26, 2003, inter alia reads:
"10. ... in 1973 Aunt Ina's emphysema got worst ... Aunt Ina has always been sick ... She had a permanent shaking disorder which affected her hands and feet. In fact Aunt Ina could not hold a pen to write. Aunt Amy wrote for her sometimes if there was a need to ." (Emphasis added)
She further stated that Aunt Ina could hold a conversation for 10–15 minutes "then start talking about something else." In Christmas of 1976, they conversed, although she, Paulette, had to identify herself to Aunt Ina who "five minutes after would ask my name again." She disclosed still further:
"I had to write for her on some occasions."
That statement revealed that up to December 1975, Ina Bailey was able to converse freely, despite moments of forgetfulness. She was also able to communicate in order to be able to tell both Amy Bailey and Paulette Bailey what "to write for her."
The statement dated November 26 2003, was available when the notice of application to vary Case Management timetable also dated November 26, 2003, was filed on November 26, 2003. This application was not heard until January 20, 2004, by Anderson, J at the pre-trial review, when the said statement and that of Junior Goldson dated November 25, 2003, were ordered to be filed and served. On the facts disclosed in the said statements and which facts were known to the Bailey descendants, an allegation of fraud by a forged signature could have been pleaded up to January 20, 2004, and proved by these witnesses from their personal knowledge without reference to expert evidence. No such allegation of fraud was made.
Moreover, Paulette Bailey was well aware that both she and Amy Bailey would write for Ina Bailey at times, on Ina Bailey's authorization. Even if Amy Bailey signed Ina Bailey's name, although there is no evidence that she did it is not forgery. A signature is valid and legal when one signs the name of another on the latter's authorization. The authors of Criminal Law by Smith and Hogan, 7 th Edition, on page 673, stated:
"... an instrument may be valid though not signed by the maker so long as it is signed on his authority ... If the instrument is valid because the signature is authorized, it would be absurd to say that it is a false instrument and such an instrument may properly be regarded as being made by the person ... authorizing the use of his signature."
No new matter therefore arose since the first Case Management Conference on October 6, 2003. All the facts were well known to the Bailey descendants from the outset, but no allegation of fraud was made. No evidence was put forward before Campbell, J. on October 14, 2004, in order to prove any new circumstances arising. The learned judge was therefore correct to refuse the application for a further amendment of the defence.
Any appeal against his order, therefore would have no real chance of success.
I would grant the application to set aside the leave to appeal which was granted, with costs to the Church.
1. On October 14, 2004, Campbell, J., while presiding in Chambers at a case management conference, refused an application by Paulette and Edward Bailey (the Baileys) for the amendment of their defence and counterclaim in a suit brought by the Incorporated Lay Body of the Church in Jamaica and the Cayman Islands in the Province of the West Indies (the Church): On October 22, 2004, the conference having been adjourned to that day, he ordered the Baileys to give, within thirty days of his order, a true account of all monies collected by them as rental from tenants in occupation of number 8 Kensington Crescent, St. Andrew. He also gave them leave to appeal. This motion before us seeks to set aside that permission to appeal.
2. The circumstances leading to this motion are simple. In July, 2002, the Church filed a claim against the Baileys for recovery of possession of the premises at Kensington Crescent. It also sought an account of monies collected as rental, and an order for payment of any amount found due on the taking of the account. There followed the usual entry of appearance and the filing of a defence and counter-claim.
3. A case management conference was held on October 6, 2003, and the trial was fixed for April 29 and 30, 2004. The Baileys subsequently applied for a variation of the case management time-table, and for permission to amend the defence and counter-claim and further and better...
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