Petrojam Ltd v Sea Ventures Shipping Ltd and Others

JurisdictionJamaica
CourtSupreme Court (Jamaica)
JudgeMangatal J
Docket NumberCLAIM NO. 2013 CD 00137
Date01 November 2013

[2013] JMCC Comm. 16

IN THE SUPREME COURT OF JUDICATURE

IN THE COMMERCIAL DIVISION

CLAIM NO. 2013 CD 00137

Between
Petrojam Limited
Claimant
and
Sea Ventures Shipping Limited
1st Defendant

and

Worldwide Green Tankers
2nd Defendant

and

The owners and/or persons interested in the M/T Great News
3rd Defendant

and

Everol Bailey
4th Defendant

Mrs. Gibson-Henlin and Mr. Herbert Hamilton , instructed by Lightbourne & Hamilton, Attorneys-at-Law for the Applicant/3 rd Defendant . Mr. Maurice Manning and Miss Arlene Williams , instructed by Nunes, Schofield, DeLeon and Co . Attorneys-at-Law for the Respondent/ Claimant .

CIVIL PRACTICE AND PROCEDURE — APPLICATION TO VARY OR REVOKE ORDER — APPLICATION MADE BEFORE ORDER PERFECTED — SPARING EXERCISE OF POWER — OVERRIDING OBJECTIVE TO BE PURSUED, SUBJECT TO PRINCIPLED CURTAILMENT OF THE PRINCIPLE

Mangatal J
1

This Application is in relation to orders made by me on July 5 th , 2013.

2

In June 2009, the Claimant, Petro Jam Limited (“Petro Jam”), a company duly incorporated under the laws of Jamaica, had commenced admiralty proceedings against the 1 st –3 rd Defendants to recover damages caused by the collision of the M/T Great News into its pier. It was alleged by Petro Jam that the collision was caused by the 1 st -

ii. That judgment is entered for Petro Jam against the 3 rd Defendant on the issue of liability with damages to be assessed.

Subsequent to the orders being made and before the formal order was perfected; the 3 rd Defendant filed the instant Application for Court Orders dated July 10 th , 2013.

5

On the date, when this Application came up for hearing before me, Counsel for the Applicant, Mrs. Gibson-Henlin made an application to amend the Notice of Application, so that the orders being sought were consistent with the grounds stated. The Application was opposed by Counsel for the Respondent, Mr. Manning. On hearing the respective arguments, I allowed Mrs. Gibson-Henlin's application.

6

By way of Amended Notice of Application for Court orders, filed September 19 th , 2013, the following orders are being sought by the Applicant/3 rd Defendant:

  • 1. That the Court varies its order to permit the 3 rd Defendant to amend its Defence filed on the 16 th July, 2009 to respond to the Second Amended Particulars of Claim by filing and serving an amended Defence within 28 days of the date thereof.

  • 2. That the order for Judgment be vacated.

  • 3. Orders for case management be made accordingly.

  • 4. Alternatively, an order granting permission to appeal the Judgment of the Honourable Miss Justice I. Mangatal, delivered on the 5 th July 2013.

  • 5. Costs of this application to be Costs in the Claim.

  • 6. Stay of proceedings in the Supreme Court pending the hearing of the appeal.

  • 7. Such further relief as this Honourable Court deems fit.

7

The 3 rd Defendant enumerated several grounds on which this application was being pursued, namely:

  • 1. The overriding objectives and the interest of justice. The non-compliance with rule 10.5 can be remedied by amendment.

  • 2. A Judge can revoke his/her order at any time provided the formal order has not yet been drawn up.

  • 3. The 3 rd Defendant has a real defence to the Claim. It was not able to put the evidence before the Court because of the time between service of the Application and the hearing. The Application for Summary Judgment was short-served. The Respondent did not have sufficient time to put in evidence which would have demonstrated its defence. This evidence would also have remedied the alleged defects relating to any alleged reasonable grounds for defending the claim.

  • 4. The Defence before the Court was not responsive to the 2 nd Amended Particulars of Claim. There was therefore no, or no sufficient basis on which the Court should or could have made the findings it did having regard to the full terms and effect of rule 10.5, the rules that permit amendments and the overriding objectives.

  • 5. In the circumstances the striking out of the Defence was too draconian a measure when compared with any prejudice caused to Petro Jam than the sanction permitted by rule 10.5 of the CPR having regard to all the circumstances of the case including the following:

    • a. Petro Jam and the Defendants were generally dilatory in prosecuting and defending the matter.

    • b. Petro Jam amended its Particulars of Claim on two occasions prior to the hearing of the Applications on the 5 th July 2013.

    • c. The Second Amendment was on the 1 st June 2010 and served on the 3 rd Defendant on the 3 rd June 2010.

    • d. The 3 rd Defendant became entitled by virtue of the CPR to amend its Defence once without permission prior to the Case Management Conference within twenty-eight (28) days thereof.

    • e. The 3 rd Defendant missed that deadline. In consideration of saving costs the 3 rd Defendant was awaiting the notification of the Case Management Conference to make its amendments to the said Defence.

  • 6. That had the 3 rd Defendant been given an opportunity to provide evidence, it would have produced a report of the Port Authority's Inquiry dated the 1 st June 2009 which demonstrates that Petro Jam is aware that 3 rd Defendant has an arguable Defence on liability as between it and the 4 th Defendant. In other words, the full facts were not placed before the Court. Petro Jam participated in that inquiry and is or ought to be aware of the report and its findings. This is a material fact that was not brought to the attention of the court and is likely to have caused the Court to exercise its discretion in favour of the 3 rd Defendant.

  • 7. Striking out the Claim and entering judgment against the 3 rd Defendant deprives the 3 rd Defendant of the opportunity of filing an Ancillary Claim against the 4 th Defendant for contribution and indemnity. This is relevant in so far as the 3 rd and 4 th Defendants are sued as joint tortfeasors.

  • 8. The Application was based on the Affidavit of Arlene Williams.

  • 9. Counsel for the 3 rd Defendant Mr. Herbert A. Hamilton was unavailable and overseas on a medical appointment. This was part of the reason that affected the ability of the firm to get instructions from its overseas clients to respond to the applications.

  • 10. Permission to appeal is sought pursuant to Part 1.8 of the Court of Appeal Rules, 2002.

  • 11. The Applicant has a real chance of success on the appeal.

  • 12. The Claim is complicated and will require expert assessors having regard to the facts. The 3 rd Defendant will be deprived of an opportunity of calling evidence at the assessment if it is not permitted to amend its Defence on liability and quantum in relation to Petro Jam and the 4 th Defendant.

  • 13.The appeal is not rendered nugatory.

  • 14. The interest of justice favours the grant of permission

3rd Defendant's Submissions
8

The 3 rd Defendant in their written submissions filed September 16 th , 2013 submitted that a judge has the power to amend his or her ruling at any time before it is perfected, if it is in the interest of justice to do so. It was argued on behalf of the 3 rd Defendant that the basis of this power is found in Part 26.1(7) of the CPR. It was further argued that even though Part 26.1(7) of the CPR does not prescribe how this power should be exercised, the case of Stewart v Engel [2000] 1 WLR 2268, CA provides useful guidance as to considerations to be applied in the exercise of this discretion.

9

The 3 rd Defendant sought to offer several reasons as to why the Court should vary its order. It was their submission that certain facts were omitted or otherwise not brought to my attention at the time when the Respondent's earlier application was being heard. The 3 rd Defendant claims that such facts would have been material in the exercise of my discretion. At paragraph 21 of the 3 rd Defendant's written submissions, the following were the matters raised, which it contends ought to have been brought to my attention:

  • a. The delay in prosecuting the Claim by both sides.

  • b. The only defence on file was not responsive to Petro Jam's Second Amended Particulars of Claim.

  • c. The Defence was filed on the 16 th July 2009.

  • d. During the period of delay, Petro Jam and 3 rd Defendant were parties to an inquiry into the accident that is the subject matter of the Claim. This was in accordance with Section 23 of the Pilotage Act.

  • e. This inquiry produced a report on the 1 st June 2009 which included certain findings in relation to the position of liability as between the 3 rd and 4 th Defendant.

  • f. Petro Jam amended its Particulars of Claim and filed the Second Amended Particulars of Claim on the 1 st of June 2010, to add the 4 th Defendant.

  • g. The Defendant failed to amend within the time specified in the rules to amend its Defence. It may do so once without permission within this specified period.

  • h. The answers in the Defence are not aligned to the averments in the Second Amended Particulars of Claim served on the Defendants on the 3 rd June 2010 which was amended to include the 4 th Defendant and liability under the Pilotage Act.

10

The 3 rd Defendant further submitted that there is no prejudice or inconvenience to be suffered by Petro Jam if the Court were to vary or revoke its order and grant the amendment. The 3 rd Defendant's position was that since this is an interlocutory matter, and no case management conference having been held or a date set for such conference, there would be no prejudice to Petro Jam if the application was to be granted. Accordingly, as this is an application to amend, it was argued that this Court should be guided by previous authorities which have acknowledged that parties are to be given every opportunity to amend or it is...

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3 cases
  • Lethe Estate Ltd and Great River Rafting and Plantation Tour Ltd v Jamaica Public Services Company Ltd
    • Jamaica
    • Supreme Court (Jamaica)
    • 23 February 2018
    ...revoke that order.” 306 Reference was also made to the judgment of Mangatal J in Petrojam Ltd v Sea Ventures Shipping Limited & Others [2013] JMCC Comm. 16 where the learned Judge stated at paragraph 19:- “An Order or Judgment made by a Judge should usually follow after very careful and tho......
  • Gloria Chung, Amanda Chung and Mark Chung v Michael Chung and Mikal Investments Ltd
    • Jamaica
    • Supreme Court (Jamaica)
    • 3 April 2018
    ...an Order contradicts the Court's intention. 24 She also relied on the case of Petrojam Limited v Sea Ventures Shipping Limited and Ors [2013] JMCC Comm. 16, and submitted that this case supports her clients' position that the Order for Specific Disclosure ought to be varied and/or discharge......
  • Saed Habib Mattar v James Salmon
    • Jamaica
    • Supreme Court (Jamaica)
    • 17 April 2020
    ...v Sea Ventures Shipping Limited, Worldwide Green Tankers, The owners and/or persons interested in the M/T Great News and Everol Bailey [2013] JMCC Comm. 16, Mangatal J examined the circumstances in which a court may vary or revoke its own 75 The learned judge noted at paragraph 17 that: Rul......

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