Reid (Spurgeon) v Corporal Lobban and Attorney General for Jamaica
| Jurisdiction | Jamaica |
| Judge | McDONALD J. (Ag.) |
| Judgment Date | 12 June 2001 |
| Judgment citation (vLex) | [2001] 6 JJC 1201 |
| Date | 12 June 2001 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. C.L. 1989/R-014 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
CIVIL PROCEDURE - Action - Dismissal for want of prosecution - Application - Inordinate and inexcusable delay - Whether delays amount to abuse of process of court - Judicature (Civil Procedure Code) Law, s. 342(2)
This application seeks to dismiss the action for want of prosecution pursuant to section 342 (2) of the Judicature (Civil Procedure Code) Law and the inherent jurisdiction of the Court.
A Chronology of the events are as follows:-
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(1) On 2 7th January 1989 a Writ of Summons and Statement of Claim claiming damages for assault inflicted on the Plaintiff by the 2nd Defendant were filed.
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(2) An Appearance was entered on the 16th February 1989 by the Director of State Proceedings for the 2nd Defendant.
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(3) A defence was filed on 6th June 1991.
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(4) On 17th March 1993, Notice of Change of Attorney was filed by Robin Smith Attorney-at-Law on behalf of the Plaintiff.
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(5) On 28th March 1994 Summons for Directions was filed. The matter came up for hearing on 9th May 1994, 20th June 1994, 9th November 1994 and 2nd March 1995 and were adjourned sine die on a 11 dates. On 20th July 1995 the Summons for Directions was heard and it was ordered inter alia that the matter be set down for trial within 30 days.
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(6) On 1st December 1995 Robin Smith, Plaintiffs Attorney filed summons to remove his name from the record . The summons was set for hearing on 13th February 1996 on which date it was adjourned sine die - Plaintiffs Attorneys absent.
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(7) Formal order on Summons for Directions was filed, on 24th July 1995 and served on the Director of State Proceedings on 15th March 1996.
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(8) By letter dated 29th June 2000 the Registrar advised Plaintiffs Attorney Robin Smith and the Director of State Proceedings that the matter had been placed on the Cause List.
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(9) Notice of Change of Attorneys was filed by Gifford, Thompson and Bright on behalf of the Plaintiff on 12th October 2000 and served on the Director of State Proceedings on the said date.
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(10) Messrs. Gifford, Thompson & Bright filed Certificate of Readiness dated 18th October 2000 and sent letter dated 11th October 2000 to the Registrar requesting that matter be placed on the Cause List.
On 19th October 2000 the Director of State Proceedings was served with a copy of a Certificate of Readiness dated 18th October 2000.
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(11) On 7th November 2000 the 2nd Defendant filed summons to dismiss the action for want of prosecution. This summons was heard on ,30th May 2001.
Setting down matter for Trial
Section 34 2 (2) of the Judicature (CPC) Law provides that where the Plaintiff:-
".......does not within the period fixed......set the action down for trial, the defendant may himself set the action down for trial or may apply to the Court or a Judge to dismiss the action for want of prosecution and on the hearing of such application the Court or Judge may order the action to be dismissed accordingly or may make such other order as to the Court or Judge may seem just".
On the 20th July 1995 an order on Summons for Directions was made. Thereafter the Plaintiff has a duty to comply with sections 342 (1) and section 343 of the Judicature (CPC) Law. The Plaintiffs Attorney ought to file the formal order along with a letter requesting the Registrar to set the matter down for trial.
The Plaintiff's case is that by letter dated 21st July 1995 the Plaintiffs Attorney Robin Smith requested the Registrar to set down the matter on the Cause List. In compliance with section 579 (4) of the Judicature (CPC) Law the Registrar can only act on this request if the formal order on the Summons for Directions has been filed.
Additionally there has to be compliance with section 343 (2) of the Judicature (CPC) Law which reads as follows:-
"A party to an action who sets it down for trial shall, within twenty-four hours after doing so, notify the other parties to the action that he has done so, but save as aforesaid, no notice of trial shall be necessary in any action".
Reference to paragraph 14 of Miss Harrison's affidavit leads to the inescapable inference that the 2nd Defendant was not notified that the matter was set down for trial.
No evidence has been presented to the Court by the Plaintiff that this letter dated 21st July 1995 Exhibit "KGB1" was received by the Registrar as evidenced by Registrar's date stamp or by any other form of admission of service.
Miss Harrison submitted that letter dated 29th June 2000 written on behalf of the Registrar informing Mr. Robin Smith and the Director of State Proceedings that the matter had been placed on the Cause List refers to "your letter received 6th June 2000" Exhibit MH3. She pointed out that the date of letter is not referred to and that the operative time is when the Court received it.
No letter dated 21st July 1995 from Robin Smith to the Registrar and stamped as having been received in the Registry or Registrar's Chambers on 6th June 2000 has been placed before the Court.
Based on the evidence before the Court I find as a fact that no letter dated 21st July 1995 was received by the Registrar requesting that the matter be placed on the Cause List. I find that the plaintiff failed to comply with the order on the Summons for Directions to set down the matter within 36, days of the date of the order.
Further that there is no evidence to satisfy the Court that there was compliance with sections 342 and 343 of the Judicature (CPC) Law.
Miss Harrison at page 6 paragraph 4 of her written submissions opines that the plaintiff's failure to comply with the order and to have the matter set down for trial within the stipulated time in the order amounts to...
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