Quarrie (Selford) v C & F. Jamaica Ltd

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Mangatal, J. (Ag.)
• Judgment Date: 20 June 2003
• Judgment citation (vLex): [2003] 6 JJC 2001
• Docket Number: SUIT NO. C.L. 2000/Q-001
• Date: 20 June 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 2000/Q-001

BETWEEN

SELFORD QUARRIE

CLAIMANT

AND

C & F JAMAICA LIMITED

1 ^st DEFENDANT

^st

CIVIL PROCEDURE - Interlocutory judgment - Consent Order to set aside - Damages - Claim for interim payments - Quantum to be awarded

Mangatal, J. (Ag.)

1 This application is by the Claimant for an interim payment to be made by the 1 ^st Defendant in the sum of $4,000,000.00.

2 The application, which is made by way of Notice dated 16 ^th April, 2003, first arose on the occasion of a Case Management Conference held in respect of this matter on the 30 ^th May 2003.

3 Although the Case Management Conference was conducted on the 30 ^th May 2003, and a date for assessment of damages fixed for 30 ^th September 2003, the application for an interim payment was, on the application of the 1st Defendant's Attorney-at-Law, adjourned to the 12 ^th of June 2003.

4 On the 12th of June 2003 when this matter came on for hearing, Mr. George, Counsel for the 1 ^st Defendant applied for an adjournment, on the basis that there was a pending application to set aside Interlocutory Judgment, and submitted that the overriding objective in part 1 of the CPR 2002 required that the matter be adjourned to await the outcome of the application to set aside Judgment, fixed for hearing on the 7 ^th July 2003. The application to set aside Judgment was filed on the 11 ^th of June 2003, after the Case Management Conference and one day before the hearing of this application commenced.

5 Mr. Williams for the Claimant vehemently opposed the application for an adjournment. He referred to the history of the matter, which is as follows:

• (a) The Law Suit was filed in the year 2000.

• (b) Interlocutory Judgment was first entered against the 1 ^st Defendant on the 7 ^th of June 2000.

• (c) Initially, the Suit had been filed against two Defendants, C & F Jamaica, 1 ^st Defendant, & TNT Engineering Services Limited, 2 ^nd Defendant, the Claimant alleging that on the 3 ^rd April 1997 he suffered serious injuries as a result of the negligent driving, management or control of a hydraulic escavator by the servant or agent of the 2 ^nd Defendant, or alternatively the servant and /or agent of both the 1 ^st and 2 ^nd Defendant.

• (d) Suit was discontinued against the 2 ^nd Defendant on the 7 ^th June 2001.

• (e) On the 4 ^th October 2002 an order was made by Consent, inter alia, that the Interlocutory Judgment dated 7 ^th June 2000 be set aside, and the 1 ^st Defendant have unconditional leave to defend. The 1 ^st Defendant was ordered to file an Appearance within 7 days, and a Defence within 14 days after Appearance.

• (f) Although an Appearance was filed, no Defence was ever filed on behalf of the 1 ^st Defendant in accordance with the Consent order or at all.

• (g) As a condition for the discharge of a Mareva Injunction obtained against it, the 1 ^st Defendant in 2002 put in place a bond in the sum of $10 million dollars as a fund from which the Claimant would be able to settle any Judgment inclusive of interest and costs obtained against the 1 ^st Defendant in the Suit.

• (h) The 1 ^st Defendant not having filed a Defence, the Plaintiff again entered Interlocutory Judgment on 5 ^th November 2002.

• (i) The 1 ^st Defendant on the 9 ^th January 2003 applied to have the Interlocutory Judgment set aside. The Application was supported by the second Affidavit and third Affidavit sworn to by Mr. Conrad George, Attorney-at-Law for the 1 ^st Defendant.

• (j) The application was on the 9 ^th January 2003 dismissed, with Leave to Appeal being granted.

• (k) A Case Management Conference was held on 30 ^th May 2003, and the Assessment of Damages set for 30 ^th September 2003.

6 In addition to referring to the history of the matter, Mr. Williams submitted that the Affidavit of Mr. Angel Herrero Valverde, sworn to on the 12 ^th of June 2003, confirms that the 1 ^st Defendant has no sincere interest in defending this matter. He also referred to the particulars of Special Damage set out in the Statement of Claim where credit is given for the sum of $127,401.75 paid by the 1 ^st Defendant on 16 ^th October 1997 towards the Plaintiff's medical expenses.

7 The parties appear to have had some disagreement as to exactly what was decided by the Court on the occasion of the application to set aside Judgment on 9 ^th January 2003.

8 Mr. George indicated that on that occasion, one of the submissions he made was that the Interlocutory Judgment entered on 5 ^th November 2002, was irregularly entered since the judgment could not then, after the order setting aside in October 2002, be reentered by an administrative act. He stated that the learned Judge rejected that submission. I make no comment on the merits of that submission since it has been heard and determined and Leave to Appeal granted. In those circumstances it would not be appropriate for me to revisit the merits of that submission.

9 Mr. George stated that the application on 9 ^th January 2003 was dismissed on the basis of a procedural technicality in that the affidavits in support of the application were sworn to by him and not a principal of his client with personal knowledge of the matter, as opposed to being dismissed on the merits or upon any finding that the Defendant had no real prospect of successfully defending the Claim. The Attorneys-at-Law for the Claimant dispute whether or not the matter was dealt with on its merits. They say that the matter was determined and dismissed on the merits after a full hearing, according to paragraph 8 of the Claimant's Affidavit, sworn to on the 12 ^th of April 2003.

10 In part 1 of the C.P.R. 2002, the overriding objective is set out as follows:-

Rule 1. 2 states:-

The court must seek to give effect to the overriding objective when it -

• 1.1. (1) These Rules are a new procedural code with the overriding objective of enabling the Court to deal with cases justly -

• (2) Dealing justly with a case includes: -

  • (a) ensuring, so far as is practicable, that the parties are on an equal footing and are not prejudiced by their financial position;

  • (b) saving expense;

  • (c) dealing with it in ways which take into consideration:

    • (i) the amount of money involved;

    • (ii) the importance of the case;

    • (iii) the complexity of the issues; and

    • (iv) the financial position of each party;

  • (d) ensuring that it is dealt with expeditiously and fairly; and

  • (e) allotting to it an appropriate share of the Court's resources, while taking into account the need to allot resources as to other cases.

• (a) exercises any discretion given to it by the Rules;

  or

• (b) interprets any Rule."

11 I exercised my discretion by refusing the adjournment. In my view given the state of the matter, the age of the claim, and the history of how the matter has unfolded, it is just to press on and determine the application.

12 The English Court of Appeal's decision Biguzzi v. Rank Leisure plc [1999] 4 ALL E.R, 934 is a case decided after the English C.P.R. 1998, upon which many of the provisions in our own C.P.R. 2002, are based. In that case, the Court emphasized that the whole purpose of making the C.P.R. a self - contained Code was to send the message which now generally applies. Earlier authorities are no longer generally of any relevance once the C.P.R applies. That case also emphasized that under the C.P.R, time limits were now even more important than they were previously. However, the Courts have wider and more varied powers to control the litigation.

13 This does not, and cannot mean that there is a complete abandonment of old authorities, and the emphasis must be on the word generally no longer of relevance. It seems to me that where the provisions being considered are the same or substantially the same, or where the previous authorities deal with certain basic procedural principles that repeat themselves...