RBTT Bank Jamaica Ltd v YP Seaton, Earthcrane Haulage Ltd and YP Seaton & Associates Company Ltd; YP Seaton v RBTT Bank Jamaica Ltd [Consolidated Suits]
| Jurisdiction | Jamaica |
| Judge | SYKES J. |
| Judgment Date | 01 October 2007 |
| Judgment citation (vLex) | [2007] 10 JJC 0101 |
| Court | Supreme Court (Jamaica) |
| Date | 01 October 2007 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL PROCEDURE - Unless Order - Application to vary
APPLICATION TO VARY UNLESS ORDER, OVERRIDING OBJECTIVE, RULES 1.1, 1.2, 1.3, PARTS 29 AND 33 OF THE CIVIL PROCEDURE RULES
1. It is now 2007. The claims are fourteen years old. One of the original litigants, Eagle Commercial Bank ("Eagle"), has ceased to exist.
2. The litigants in the claims are (i) RBTT Bank Jamaica Limited ("RBTT" or "the bank") and (ii) Mr. Y.P. Seaton, EarthCrane Haulage Limited ("EarthCrane") and Y.P. Seaton & Associates Company Limited ("SAC"), collectively referred to as "YP". Where necessary I shall identify the litigants by the shortened names I have given to them. I shall refer to Mr. Y.P.Seaton by his name. The bank is the claimant in Claim No. C.L. 1993/E 083 ("the first claim") and the defendant is Claim No. C.L. 1993/ S 252 ("the second claim"). YP are the defendants in the first claim and Mr. Y.P. Seaton is the claimant in the second claim.
3. The facts that gave rise to the litigation need not be gone into in any great detail because nothing turns on the facts in issue between the parties on this application. Nonetheless a very brief summary is given. The summary for the first claim comes from Eagle's statement of claim. Eagle was a bank licensed to operate in Jamaica. Mr. Y.P. Seaton is the holder of the majority of shares in EarthCrane and SAC. Eagle acted as banker for a company known as Jamaica Commodity Trading Company Limited ("JCTC") and an overseas company, Prolacto S.A. It appears that Prolacto shipped quantities of skimmed milk to JCTC. JCTC maintained accounts at Eagle from which moneys would be deducted to pay Prolacto. Mr. Seaton, EarthCrane and SAC also maintained accounts at Eagle. Eagle alleges that Mr. Y.P. Seaton and SAC were, at all material times, either servants or agents of Prolacto and would give instructions to Eagle on behalf of Prolacto. Eagle further alleged that for services provided by Eagle it was entitled to charge JA$1,514, 656.00. In error, it is said, this sum was paid into the accounts held by the three defendants. It is alleged that the defendants were not entit led to any of the money.
4. Eagle also alleged that Prolacto shipped 1879.85 metric tonnes to JCTC. Acting on the instructions of the defendants Eagle paid money out of JCTC's accounts into the defendants' accounts. The sum allegedly paid was US$131, 119.54. In respect of another shipment Eagle states that it erroneously paid into the accounts of the defendants moneys from JCTC's account. The sum involved in this alleged error was JA$8,905,408.10.
5. Eagle says that it discovered the error and when this was pointed out to the defendants, they refused to return the money. Eagle responded by debiting JA$15,254,583.69 from the defendants' accounts. This sum represents the total mistaken payments and interest. Eagle claimed the sums mistakenly paid and a declaration that they were entitled to debit the defendants' accounts in the sum of JA$15,254,583.69.
6. In the second claim Mr. Seaton's claim against the bank is simply that he had deposited money in Eagle which refused to pay over the money when asked to do so. He claims the sums deposited, interest on those sums and damages.
7. The primary issue on this application is whether RBTT should be allowed a variation of an order (paragraph 3 of the order) made by Sykes J. on April 26, 2007, in the following terms:
In respect of the claimant in Claim No. C.L. 1993/E 083 unless the claimant files and serves a witness statement (not a witness summary) on or before July 30, 2007 at 3:00pm the claim is struck out and judgment entered for all the defendants without further order.
8. The application, dated July 26, 2007, by RBTT is in the following terms:
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a. That paragraph 3 of the Order of the Honourable Mr. Justice Sykes dated the 26 th day of April 2007 be varied to permit the filing of a witness summary and that the witness summary of [name of witness omitted by the Court] filed on the 25 th July 2007 do stand.
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b. That the date for the compliance with the Unless Order of the Honourable Mr. Justice Sykes be extended.
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c. That in the alternative the claimant/defendant RBTT Bank Jamaica Limited be granted relief from the sanction pursuant to part 26.8 of the Civil Procedure Rules and be permitted to file a witness statement in this matter at a time to be fixed by the Court.
9. What is it that led to the unless order being made? I shall attempt to summarise the story of this sorry tale of dilatory litigation. The first part of the litigation took place under the ancient regime of the Civil Procedure Code, the rules that accompanied the establishment of the Supreme Court of Jamaica by the Judicature (Supreme Court) Act of 1880, that implemented the fusion of the administration, not a fusion of law, of the various superior courts of record of the Island of Jamaica. The second part of the litigation took place under the new Civil Procedure Rules ("CPR") which replaced the Civil Procedure Code on January 1, 2003.
Part one
10. In order to make the chronology of events easy to understand I shall relate, separately, the history of both claims from their inception to February 9, 1995, when the order for consolidation was made by the Master. Let me begin with Claim No. 1993/ E 083. In relating the account of the litigation I shall be using the language appropriate for the pre-CPR and post-CPR periods.
Claim No. 1993/E 083 (RBTT Bank Jamaica Limited v Y.P. Seaton, EarthCrane Haulage Limited and Y.P. Seaton & Associates Company Limited)
11. On August 6, 1993, Eagle launched this claim by filing a writ of summons against Mr. Y.P. Seaton and EarthCrane. One year later, on November 2, 1994, SAC was added as the third defendant. Mr. Seaton and EarthCrane entered appearances to the claim on August 17, 1993. The statement of claim was filed on September 16, 1993. Defence were filed by the first two defendants on December 8, 1993. It would appear that all was ready for trial since pleadings, on the face of it, were closed. Each side knew on what points issue was joined which would determine the evidence that needed to be adduced. The next step was the filing of a summons for directions on August 16, 1994. This summons deals with trial dates, venue of trial and other matters related to the actual trial. This summons for direction was eventually heard on February 9, 1995. Had the summons been heard and the appropriate orders made the matter in all probability would have been tried by 1999/2000, that is to say, seven years after the claim was filed.
12. I must indicate the significance of the summons for directions under the old rules. Carey P (Ag) in Bruce Golding (On behalf of and Representing the Standing and Central Executive Committees of the Jamaica Labour Party) v Pearnel Charles (1998) 28 J.L.R. 267 had to examine the significance of the summons for directions. His Lordship was speaking of litigation under the Civil Procedure Code which is a direct descendant of the English Rules of the Supreme Court. His Lordship said at page 250B:
From what I have said thus far, it is clear that an order on a summons for directions is a condition-precedent to an action coming on for hearing in the Supreme Court. It is the order for trial made by the judge on the summons for directions which sets in motion the setting down process carried out by the Registrar. In my judgment, neither of the parties to an action can unilaterally or consensually set the action down for trial; the intervention of the court is a sine qua non.
13. Carey P (Ag) precedes this passage with this observation at page 249H–I:
One of the orders made by the judge on a summons for direction is to fix the time within which the plaintiff is to set the action down for trial (section 342 (11). Of course, if the plaintiff fails to comply with the order, the defendant is himself at liberty either to apply to set the action down for trial or apply to dismiss (section 342 (2)). In order to set the action down, the plaintiff makes a written request of the Registrar copied to the defendant, to do so. The rule actually requires notification of the defendant of this fact within twenty-four hours by the plaintiff but the practice is, as I have indicated. (Section 343 (2)) (sic).
Thereupon the Registrar in the order of the receipt of the requests by plaintiffs enters (section 344 (2)) the action on one or other of the two Cause Lists which he is enjoined by section 344 (1) to keep. Section 344 (5) which is concerned with the mechanics of arriving at dates for trial was refined by a practice Direction (sic) dated January 24, 1989. For purposes of this appeal, I need say no more of it, except to comment on one aspect thereof. There is now introduced a requirement whereby the plaintiffs attorney files a document called a "Certificate of Readiness." It is intended to show that the parties are now ready to prosecute the litigation seriously, presumably because all outstanding fees have been paid.
14. It is clear, therefore, that the filing of a summons...
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