Rasheed Wilks v Donovan Williams

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: A. Nembhard J
• Judgment Date: 03 December 2020
• Docket Number: CLAIM NO. 2014 HCV 04600
• Date: 03 December 2020

[2020] JMSC Civ 234

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2014 HCV 04600

Between

Rasheed Wilks

Claimant

and

Donovan Williams

Defendant

Mrs Martina Shelton and Ms Christina Thompson instructed by Shelards for the Claimant

Ms Georgia Hamilton instructed by Georgia Hamilton & Co. for the Defendant

Civil procedure — Defence — Whether the defence filed amounts to a bare denial — Application to strike out portions of witness statement on the basis that it introduces facts not pleaded — Defence of automatism — Application to strike out defence of automatism — Res judicata — Doctrine of res judicata — Issue estoppel — Doctrine of issue estoppel — Civil Procedure Rules, 2002 — Rules 10.5, 20.1, 20.4, 26.3, 1.1 and 1.2

Costs — The appropriate cost order to be made in the circumstances — The factors to be considered — The conduct of the parties before and during the proceedings — The manner in which the parties have pursued their respective case — Civil Procedure Rules, 2002, rules 64.3, 64.6(1), 64.6(3), 64.6(4)(a),(b),(d)(i) and (ii), (e)(i), (ii) and (iii), 64.6(4)(f) and 64.6(4)(g)

IN OPEN COURT

A. Nembhard J

INTRODUCTION

1 The instant matter arises from a motor vehicle accident which took place on 3 January 2011, at a bus stop located along Old Hope Road, Kingston 6, in the parish of Saint Andrew. The Claimant, Mr Rasheed Wilks and other pedestrians were awaiting public transportation when a 1995 white Toyota Avalon motor car, registered 9690 EQ (“the Toyota motor car”), collided into the bus stop hitting Mr Wilks.

2 It is alleged that the Toyota motor car was owned by the Defendant, Mr Donovan Williams and, at the time of the accident, was being driven by Mrs Ann-Marie Kirlew-Williams, who was acting as the servant and/or agent of Mr Williams.

3 As a consequence of this tragic occurrence, Mr Wilks alleges that he sustained injury, damage and loss.

THE PRELIMINARY OBJECTIONS

4 On 16 November 2020, this matter came before the Court for trial, at which time, Mr Wilks, by way of a Notice of Preliminary Objection, filed on 13 November 2020, raised the following preliminary objections: —

• (i) That certain paragraphs of the Witness Statements of Mr Williams and Mrs Ann-Marie Kirlew-Williams, each filed on 20 February and 28 February 2020, respectively, should be struck out. The application was made on the basis that, the Defence, as filed, contains a bare denial of the allegation of the existence of a relationship of agency between Mr Williams and Mrs Kirlew-Williams, in breach of rule 10.5 of the Civil Procedure Rules, 2002. Consequently, it was submitted, Mr Williams is precluded from introducing by way of the witness statements filed on his behalf, facts that have not been pleaded; and

• (ii) That the doctrine of res judicata and issue estoppel apply and preclude Mr Williams from advancing the defence of automatism at the trial of the claim.

THE ISSUES

5 The following issues arise for the Court's determination: —

• (1) Whether the Defence, filed on 12 December 2014, is in breach of rule 10.5 of the Civil Procedure Rules, 2002;

• (2) Whether the impugned paragraphs of the Witness Statements of Donovan Williams and Ann-Marie Kirlew-Williams, each filed on 20 February and 28 February 2020, respectively, ought properly to be struck out;

• (3) Whether the Defendant is precluded from relying on the defence of automatism, having regard to the doctrine of res judicata and issue estoppel; and

• (4) Whether the timing of the objections is fatal.

THE SUBMISSIONS

The Claimant's position

6 Mr Wilks seeks to challenge the Defence, filed on 12 December 2014, on two (2) bases. Firstly, that it does not comply with the requirements of rule 10.5 of the Civil Procedure Rules, 2002 (“CPR”) and that Mr Williams should be precluded from adducing evidence of facts which have not been pleaded.

7 In particular, it was submitted that Mr Williams failed to plead in his Defence that, at the time of the accident, Mrs Kirlew-Williams was not acting as his servant and/or agent. Additionally, a complaint is also made that Mr Williams failed to set out in his Defence the bases on which he denies the existence of a relationship of agency between himself and Mrs Kirlew-Williams.

8 As a consequence, it was submitted that a portion of paragraph four (4) through to paragraph seven (7) of the Witness Statement of Mr Williams and a portion of paragraph three (3) and paragraph nine (9) of the Witness Statement of Mrs Kirlew-Williams, should be struck out.

9 Secondly, Mr Wilks contends that the doctrine of res judicata and issue estoppel apply to the defence of automatism on which Mr Williams relies, in light of the pronouncements of the Court of Appeal in Williams (Ann-Marie) v R. 1

The Defendant's position

10 For his part, Mr Williams maintains that he has always denied Mr Wilks' assertion of the existence of a relationship of agency between himself and Mrs Kirlew-Williams. He contends that a negative averment cannot be particularized in a defence as the purpose of the pleadings is not to introduce evidence or statements of law. He maintains that evidence is confined to witness statements and/or viva voce evidence at trial. Consequently, he denies that the Defence, as filed, is in breach of rule 10.5 of the CPR and contends that the impugned paragraphs of his witness statement and those of Mrs Kirlew-Williams should be allowed to stand.

11 Secondly, Mr Williams does not agree that the doctrine of res judicata and issue estoppel apply in the instant case and maintains that he should be permitted to rely on the defence of automatism, in response to the claim.

THE LAW

The nature and import of pleadings

12 The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties. Pleadings serve the two-fold

purpose of informing each party of the case of the opposing party and, at the same time, informing the court of the issues between the parties that will govern the interlocutory proceedings between them and which the court will have to determine at the trial. 2

13 Pleadings are therefore required to demarcate the parameters of the case that is being advanced by each party to an action and are critical to identify not only the issues joined between the parties but the extent of the dispute between them.

14 Lord Woolf MR, in McPhilemy v Times Newspapers Ltd and others, 3 provided a comprehensive analysis of the nature and importance of pleadings. He stated as follows: —

“The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party's witness statements, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular, they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader.” 4

The duty of a defendant to set out his case

15 The obligation of a litigant to set out his case has been encapsulated in and streamlined by the CPR.

16 Rule 10.5 of the CPR outlines the duty of a defendant to set out his case. The relevant portions of the rule are set out below: —

• “10.5 (1) The defence must set out all the facts on which the defendant relies to dispute the claim.

• (2) Such statement must be as short as practicable.

• (3) In the defence the defendant must say —

  • (a) which (if any) of the allegations in the claim form or particulars of claim are admitted;

  • (b) which (if any) are denied; and

  • (c) which (if any) are neither admitted nor denied, because the defendant does not know whether they are true, but which the defendant wishes the claimant to prove.

• (4) Where the defendant denies any of the allegations in the claim form or particulars of claim —

  • (a) the defendant must state the reasons for doing so; and

  • (b) if the defendant intends to prove a different version of events from that given by the claimant, the defendant's own version must be set out in the defence.

• (5) Where, in relation to any allegation in the claim form or particulars of claim, the defendant does not –

  • (a) admit it; or

  • (b) deny it and put forward a different version of events, the defendant must state the reasons for resisting the allegation.”

The purpose of the rule

17 The purpose of the rule is to safeguard against unparticularized ‘bare denials’ which are the hallmark of holding defences. A defendant is therefore required to set out all the facts on which he intends to rely to dispute the claim. He must say which of the allegations, if any, are admitted or denied, which, if any, are neither admitted nor denied. Where there is a denial of any of the allegations, a defendant must state the reasons for that denial. If a defendant intends to prove a different version of the events from that given by the claimant, he must set out his own version.

The mandatory nature of the rule

18 In Medine Forrest v Kevin Anthony Walker & Anor, 5 Rattray J, in examining rule 10.5 of the CPR, highlighted the mandatory element contained in the rule. He stated that, where a defendant denies any of the allegations contained in the claim form or particulars of claim, he/she must state the reasons for that denial. The use of the word ‘must’ in the rule emphasizes the mandatory element of the provision. In the circumstances of that case, Rattray J found that, if the...