R.E. Forrester and R.E. Forrester Electrical Contractors Ltd v Holiday Inn (Jamaica)

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 01 June 2005
• Judgment citation (vLex): [2005] 6 JJC 0101
• Court: Supreme Court (Jamaica)
• Date: 01 June 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMA CA

BETWEEN

R.E. FORRESTER

FIRST CLAIMANT

AND

R.E. FORRESTER ELECTRICAL CONTRACTORS LIMITED

SECOND CLAIMANT

AND

HOLIDAY INN (JAMAICA)

DEFENDANT

IN CHAMBERS

Mr. Ransford Braham and Miss Kathryn Cousins for the claimants instructed by Livingston, Alexander and Levy

Mr. Kevin Williams instructed by Grant, Stewart, Phillips and Company

CIVIL PROCEDURE - Unless Order

1 APPLICATION FOR EXTENSION OF TIME OF UNLESS ORDER, RULES 1.1, 3.2, 11.16, 11.17, 26.14(3), 28.14(4), 26.8, and 64

SYKES J

2 1. Should the court extend the time within which the defendant is to comply with an unless order?

3 2. In 1995 the defendant contracted the claimants to install electrical fittings and perform other services at a property known as Holiday Inn, Montego Bay, Jamaica's tourism mecca. The claimants have received part of the sums they say is owed to them, The claimants filed suit on October 8, 1997, under the old Rules of the Supreme Court, to recover the balance. The new Civil Procedure Rules (CPR) came into effect on January 1, 2003. One of the consequences of this was that this case was now under the case management regime introduced by the new rules. At a case management conference held on May 14, 2004, Donald Mcintosh J made a number of orders including an order for specific and general disclosure. The application before me concerns that part of the order.

4 3. The claimants sought to enforce the disclosure part of the order by applying for an unless order on February 17, 2005, under rule 28.14(2). Although rule 28.14(3) permits a without-notice application, the claimants served the notice of application for court orders on the defendant on February 22, 2005. The legal advisors of the defendant must be taken to know that such an application can be dealt with without attendance upon the court (see rule 28.14(4)). The risk to the defendant in such a situation is that no one has any obligation to inform him of the date the application will be dealt with by the court. This would suggest to me that litigants who receive notice of an application of this nature need to act with alacrity to try to avoid the consequences of such an order.

5 4. On April 21, 2005, Beswick J ordered:

That the defendant comply with the orders on case management conference for specific and standard disclosure made by the Honourable Mr. Justice Donald Mcintosh on 10 ^th December 2004 within seven (7) days of service of this order failing which its defence shall be struck out and the claimants shall be at liberty to enter judgment.

6 5. In passing, I cannot help but note that it took over two months for a without-notice application, in which no party would be attending, to move from the Registry to a Judge of this court.

7 6. The affidavit of Miss Cousins, dated February 16, 2004, filed in support of the application for the unless order told this story:

• a. on May 14, 2004, Donald Mcintosh J made a number of orders on case management including an order for specific and standard disclosure within 90 days of the date of the order;

• b. the defendant failed to comply with the order;

• c. on December 10, 2004, Donald Mcintosh J extended the time, on an application by the claimants, for complying with the order for disclosure to February 4, 2005;

• d. the defendant was represented by counsel at both hearings;

• e. the order on December 10, 2004, also varied the times for compliance with other orders because it appeared that neither party was able to meet the original deadlines;

• f. the defendant offered no explanation for its non-compliance with the orders for specific and standard disclosure;

• g. the claimants complied with the order for disclosure, under the revised timetable, on January 18, 2005.

8 7. The claimants served the unless order on the defendant on May 19, 2005. It produced the desired effect. The defendant awoke from its slumber.

9 Holiday Inn's application

10 8. Mr. Williams, by notice of application for court orders dated May 26, 2005, supported by an affidavit of the same date, is seeking the following orders:

• a. That the time limited for complying with the Order of the Honourable Mr. Justice Donald Mcintosh dated the 10 ^th day of December 2004 be extended to twenty-one (21) days of the date hereof;

• b. Costs of this application be costs in the claim;

• c. Such further and other relief and orders as this Honourable Court shall think fit in the circumstances of this case,

11 The claimant's submission

12 9. Mr, Braham stoutly resisted the application on the basis that the defendant has shown such scant regard for the orders of the court including the unless order that the court should not extend the time. He submitted that even after the defendant received the unless order, it did nothing to comply with the order for standard and specific disclosure. This now frantic effort by the defendant is simply an attempt to avert imminent disaster and not a genuine effort to comply with the order. This submission was premised partly of the fact that despite being served with the unless order on May 19, 2005, a date that activated the seven-day deadline, the defendant did not contact the claimants and only made this application six days into the time given to comply with the order.

13 10. According to Mr. Braham, the affidavit filed in support of the application does not disclose any good and sufficient reason why the court should grant any extension of time. He said that the affidavit does not set out in any detail the efforts made to comply with the order. I agree with Mr. Braham that the affidavit filed in support of this application is lacking and consistent with a hurriedly put together application. It is now appropriate to set out the legal principles that govern this application.

14 The legal principles

15 11. An unless order is a peremptory order directing a party to the litigation to do a specified act, within a specified time, which, if not done, is visited by sanctions prescribed by the order. It is a fundamental principle that a litigant who fails to comply with such an order, should suffer the penalty prescribed by the order unless he can show good reason why the stated consequences should not follow. A necessary corollary of this is that the litigant who seeks to extend the time within which to comply with an unless order must show good cause why this should be done.

16 12. In seeking to assist the court, Mr. Williams directed the court's attention to rules 11.16 and 11.17 of the CPR. For the reasons given by Mr. Braham those rules do not apply here. Mr. Braham submitted that those rules apply to applications for rehearing of an order made in the absence of the affected party. That is not the application here. Mr. Williams is not asking that I rehear the order made by Beswick J. Mr. Williams next referred to rule 26.8. I do not think that that rule is...