Richards Lorenzo v United Car Rentals Ltd & Osmond Bernard

• Jurisdiction: Jamaica
• Judge: Sykes J (Ag)
• Judgment Date: 12 July 2002
• Judgment citation (vLex): [2002] 7 JJC 1201
• Docket Number: SUIT NO. C.L. 225 OF 1992
• Court: Supreme Court (Jamaica)
• Date: 12 July 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 225 OF 1992

IN CHAMBERS

BETWEEN

LORENZO RICHARDS

PLAINTIFF

AND

UNITED CAR RENTALS LTD.

1 ^ST DEFENDANT

AND

OSMOND BERNARD

2 ^ND DEFENDANT

CIVIL PROCEDURE - Dismissal for want of prosecution - Delay inordinate and inexcusable - Whether abuse of process of court - Whether prejudicial to defendant

1 APPLICATION TO DISMISS FOR WANT OF PROSECUTION

Sykes J (Ag)

2 This is yet another of the now many cases coming before these courts where a defendant is seeking to remove the threat of liability from his neck because of the inordinate delay of the plaintiff in pursuing his action. The second defendant is not a party to this hearing.

3 The cause of action arose out of an accident that occurred on November 6, 1991. The plaintiff in his writ of summons and statement of claim filed December 14, 1992 alleged that he was injured by a motor car driven by the second defendant which was owned by the first defendant.

4 The first defendant entered an appearance on March 3, 1993. A defence was filed by March 10, 1993. By May 4, 1993 orders were made by the Master on a summons for directions. So far the matter was proceeding with appropriate speed.

5 Within three years of the writ being filed the matter first came up for hearing on May 29, 1995. It was adjourned to June 1, 1995. On that day the case was adjourned sine die because the plaintiff's attorney was absent.

6 Between June 1, 1995 and December 8, 1997 nothing happened. The case finally reappeared on the trial list on December 8, 1997. It was adjourned to December 10, 1997. On December 10, 1997 the matter was adjourned because the second defendant, apparently was "not served", whatever that means. This caused the matter to be adjourned sine die. By this time the plaintiff was now represented by Arthur Williams & Co and not Messrs. Kelly, Williams and Mclean. The change was effected on December 3, 1997 when a notice of change of attorney was filed.

7 It must be noted that the first defendant was represented on every date the matter was set down for trial. There is no evidence to suggest that the first defendant contributed to any of the adjournments.

8 Absolutely nothing has been done by the plaintiff since December 10, 1997. We are now five months away from the fifth anniversary of total inactivity on the part of the plaintiff.

9 At this hearing the plaintiff was not present and neither was he represented by counsel.

10 The first defendant has applied, by summons dated February 28, 2002 and filed March 4, 2002, to have the action dismissed for want of prosecution either under the Civil Procedure Code or under the inherent power of the court.

11 I have taken careful note of the following:

• 1. the summons to dismiss for want of prosecution and supporting affidavit were filed on March 4, 2002;

• 2. they were served on the attorney on record for the plaintiff, Arthur Williams & Co. on June 19, 2002 at 12:07 pm;

• 3. the acknowledgement of service is evidenced by a stamp in the name of Arthur Williams & Co. and signed by one "S. Robinson" who received "the documents;

• 4. no affidavit in response to the summons has been filed by or on behalf of the plaintiff.

12 I am satisfied that the plaintiff was properly served and had sufficient notice of the hearing of this summons.

13 The affidavit filed in support asserts that the plaintiff has failed to prosecute his claim with "due diligence and care" without giving any reason for the long delay. This appears to me to be raising the issue of whether what has occurred to date can be regarded as an abuse of process.

14 The affidavit in support of the summons also deals with prejudice caused to the first defendant. The affidavit states that the first defendant has been prejudiced in three ways:

• (a) witnesses are no longer available and even if they were their memories may have faded during the period between the accident and now, a period of over ten years;

• (b) the first defendant has had to keep this suit on their books as a contingent liability. This has had an adverse effect on the business because each year it has had to set aside increasing sums of money to allow for the effects of inflation and interest, assuming that the plaintiff was successful in the suit;

• (c) there is the risk of being exposed to significantly higher damages awarded now than in 1997 when the matter last came up for trial.

15 THE LAW

16 The legal principles applicable to this area are well known. They have been restated by the Court of Appeal of Jamaica as recently as March 11, 2002 in the case of Port Services Ltd v Mobay Undersea Tours Ltd. & Fireman's Fund Insurance Company SCCA No. 18/2001.

17 An examination of the cases shows that suits, such as motor vehicle cases, that depend upon the recollection of witnesses are particularly vulnerable to attack by summonses to dismiss for want of prosecution whenever the basis of the dismissal is one of inordinate delay. The reason for this kind of vulnerability is not hard to see.

18 Downer J.A. in Valentine v Lumsden (An Infant) & Lumsden (Next Friend) (1993) 30 J.L.R. 525 has so eloquently said at page 527:

As for inordinate delay, the courts have taken a stem attitude towards inexcusable delay especially in running down actions which depend largely on the personal...