Paulette Richards v Orville Appleby

• Jurisdiction: Jamaica
• Judge: Phillips JA,Sinclair-Haynes JA,F Williams JA
• Judgment Date: 01 July 2016
• Neutral Citation: JM 2016 CA 67
• Docket Number: APPLICATION NO 96/2016
• Court: Court of Appeal (Jamaica)
• Date: 01 July 2016

[2016] JMCA App 20

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Mr Justice F Williams JA

APPLICATION NO 96/2016

Between

Paulette Richards

Applicant

and

Orville Appleby

Respondent

Miss Racquel Dunbar and Miss Althea Wilkins instructed by Dunbar & Co for the applicant

Miss Debbie-Ann Samuels for the respondent

Phillips JA

1 I have read in draft the judgment of my brother F Williams JA and agree with his reasoning and conclusion. There is nothing that I could usefully add.

Sinclair-Haynes JA

2 I too have read the draft judgment of my brother F Williams JA. I agree with his reasoning and conclusion.

F Williams JA

3 On 13 June 2016 this court heard submissions on the applicant's notice of application filed on 13 May 2016. By that application, the applicant sought: (i) an extension of time to file notice and grounds of appeal against the decision of a parish judge for the parish of St Ann, delivered 18 March 2016; (ii) an extension of time for the payment of the costs and security for costs for the due prosecution of the appeal; and (iii) a stay of the execution of the said judgment.

4 On 15 June 2016 we made the following orders:

• ‘1.) The time for the applicant to file and serve his Notice and Grounds of Appeal is extended to seven (7) days from the date hereof.

• 2.) The time for the applicant to pay the sum for security for the due prosecution of the appeal and for the security of any costs, and for the due and faithful performance of the judgment, is extended to seven (7) days from the date hereof, which sums must be paid at the time of lodging the notice and grounds of appeal.

• 3.) Costs of this application to the respondent to be agreed or taxed.’

5 These are our reasons for making the above-stated orders.

6 The claim in the court below, which was initiated by plaint note filed on 13 March 2015, was one for damages based on the tort of negligence as a result of a motor vehicle accident which occurred on 4 October 2009. The matter was tried on 18 March 2016 in the parish court for the parish of Saint Ann, holden at Brown's Town, at the end of which the learned parish judge ordered as follows:

‘…Judgment for the Plaintiff in the sum of Seven Hundred and Seventy Three Thousand, Five Hundred and Forty Four Dollars ($773,544.00) with interest thereon for [sic] three per cent (3%) per annum from the date of filing of the Plaint (March 2015) and Special damages assessed at Seven Thousand Five Hundred Dollars ($7,500.00) with interest thereon at six per cent (6%) per annum from the date of the loss (October 2009) plus Costs of Seven Thousand Dollars ($7000.00) for service and Attorney Costs of Fifty Thousand Dollars (50,0000.00). Adjournment costs to be agreed if not taxed.’

(Emphasis as in original)

Submissions for the applicant

7 Several grounds were advanced on behalf of the applicant in support of the orders sought. Counsel for the applicant submitted that there was merit in the appeal, as the award of damages made by the learned judge below had been inordinatedly high. Further, it was submitted that a part of the award made was based solely on the respondent's testimony which was not supported by the medical evidence before the court. Also, that the learned judge erred in making two separate awards in respect of general damages: (i) $663,544.00, which was based on the injuries stated in the medical report before the court; and (ii) $100,000.00 for pain and suffering in respect of the respondent's back pain and alleged inability to perform sexually (that claim being supported only by the respondent's viva voce evidence).

8 In terms of the failure to file notice and grounds of appeal in time, it was submitted on behalf of the applicant that counsel with conduct of the matter below had misunderstood the stipulated time period for the filing of the notice and grounds of appeal (believing it to be 42 days instead of the 14-day period stipulated by section 256 of the Judicature (Parish Court) Act — the JPCA). However, counsel contended that that delay could not be deemed to be inordinate; neither would the respondent suffer prejudice by virtue of the delay if the application was granted, there also having been some delay on the part of the respondent (the claim not having been filed until 2015, although the incident had occurred in 2009).

9 Counsel for the applicant further submitted that the matter was one of urgency as the respondent had filed an application for a judgment summons in the Parish Court in Brown's Town, which was set to be heard shortly (on or about 16 June 2016).

10 It was also the submission of counsel for the applicant that, pursuant to section 12(2) of the Judicature (Appellate Jurisdiction) Act (JAJA), there existed a power for the court to grant the extension of time sought and that, further, in accordance with rule 2.15(a) of the Court of Appeal Rules (CAR) this court has the jurisdiction to stay the judgment pending the outcome of the appeal.

11 Counsel for the applicant also submitted that the guiding principles to be followed in a matter of this nature were to be found in the well-known and oft-cited case of Leymon Strachan v The Gleaner Company Limited and Dudley Stokes, Motion No 12/1999, judgment delivered 6 December 1999. In that case, Panton JA (as he then was) set out the matters to be considered in an application of this nature. It was submitted on behalf of the applicant that the applicant has satisfied the most important of those considerations, thus warranting the granting of the application.

Submissions for the respondent

12 Counsel for the respondent submitted that there was no merit in the appeal, as the awards made by the learned trial judge were not inordinately high. With regard to the absence of medical evidence to support the respondent's claim for special damages, counsel submitted that the respondent had given viva voce evidence which was accepted by the court below.

13 Counsel further submitted that prejudice would be occasioned to the respondent by the granting of the application and by the further delay that would thereby result, as there had been ongoing negotiations between the respondent and the appellant's insurance company from as early as 2013. Further, it was argued by counsel that the applicant would be indemnified by her insurance company (Advantage General Insurance Company Limited —‘AGI’) in respect of any damages which she had been ordered to pay and as such there was no risk personally to her regarding the enforcement of the judgment summons.

14 Counsel sought to persuade the court to deem as unacceptable, the reason given by the applicant's counsel for the delay in filing the notice and grounds of appeal.

15 Counsel averred that on the dicta of several authorities including Ralford Gordon v Angene Russell [2012] JMCA App 6, Wilbert Christopher v Anna Grace and Rattray Patterson Rattray [2011] JMCA App 2 and Patterson and Nicely v Lynch (1973) 12 JLR 1241, the application for extension of time was bound to fail, as there was no payment of the security for costs for the due prosecution of the appeal, which is a condition precedent to the filing of any appeal.

16 On the basis of the foregoing, counsel submitted that the application must be dismissed.

Discussion and analysis

The guiding principles

17 The guiding principles for the court's consideration are in fact those set out in the Leymon Strachan case. In that case, at page 20, Panton JA gave the following guidance:

‘The legal position may therefore be summarised thus:

(1) Rules of court providing a time-table for the conduct of litigation must, prima facie, be obeyed.

(2) Where there has been a non-compliance with a timetable, the Court has a discretion to extend time.

(3) In exercising its discretion, the Court will consider—

(i) the length of the delay;

(ii) the reasons for the delay;

(iii) whether there is an arguable case for an appeal and;

(iv) the degree of prejudice to the other parties if time is extended.

(4) Notwithstanding the absence of a good reason for delay, the Court is not bound to reject an application for an extension of time, as the overriding principle is that justice has to be done.’

18 It is against the background of these principles, therefore, that the various submissions and arguments on either side of this application must be considered and resolved.

The length of the delay

19 The...