Sandals Resorts International Ltd v Neville L Daley & Company Ltd
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Sinclair-Haynes JA,F Williams JA |
| Judgment Date | 07 November 2017 |
| Neutral Citation | JM 2017 CA 66 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 21/2016 |
| Court | Court of Appeal (Jamaica) |
| Date | 07 November 2017 |
[2016] JMCA Civ 35
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Mr Justice F Williams JA
SUPREME COURT CIVIL APPEAL NO 21/2016
Written submissions filed by Patterson, Mair, Hamiltonfor the appellant
Written submissions filed by Brown, Godfrey &Morganfor the respondent
Civil appeal - Application to strike out claim — Whether the judge erred in allowing the respondent to amend its claim — Whether the amendment would improperly allow the respondent to proffer a claim based on a new cause of action — Limitation Period — Whether the appellant was entitled to have the claim stayed based on the contractual term that required disputes between the parties to be referred to arbitration — CPR 11.6, 11.7, 20.6, 25.1 and 26.1 — Pan Ocean Shipping Ltd v. Creditcorp Ltd, The Trident Beauty [1994] 1 All ER 470 — Reeves v. Butcher [1891] 2 QB 509 — The Jamaican Railway Corporation v. Mark Azan (unreported) JMCA, SCCA No 115/2005 — Sommerville v. Coke (1989) 26 JLR 550 — Wickham v. Harding (1859) 28 LJ Ex 215.
This is a procedural appeal by Sandals Resorts International Limited (Sandals) against the decision of Batts J, who, at a pre-trial review of a claim against Sandals, by Neville L Daley and Company Limited (NLDL), among other orders, refused Sandals' application for the claim to be completely struck out or, alternatively, that it be stayed. Batts J did strike out NLDL's claim to recover the sum of $22,390,966.76 as damages for breach of contract, but granted it permission to amend its particulars of claim so as to claim a sum on a quantum meruit (the amount that was earned) basis. The learned judge made those orders on 8 February 2016.
It is these two orders that form the bases of this procedural appeal. The first main issue raised by the appeal is whether the learned judge ought to have allowed NLDL to amend its claim. That issue has two parts. Sandals contended that the amendment would improperly allow NLDL to proffer a claim, based on a new cause of action, after the applicable limitation period had expired. It also contended that there was no proper application before the learned judge for the amendment. The second main issue to be resolved is whether Sandals was entitled to have the claim stayed as a result of a contractual term that required disputes between the parties to be referred to arbitration. An outline of the factual background to the claim will aid understanding of the issues.
NLDL had been contracted by Sandals to do construction work at Sandals' property, called Royal Caribbean Hotel. The property is located at Ironshore in the parish of Saint James. NLDL was contracted to construct a new block of hotel rooms as well as to carry out a substantial upgrade of an existing block of rooms.
According to Sandals, the principal terms and conditions pertaining to the contract were to be found in (i) a letter of intent dated 21 February 2008, from Sandals to NLDL; (ii) the Preliminaries and Conditions of Contract and (iii) the building contract (Standard Form Building Contract Private Edition with Quantities 2007 Revision issued by the Construction Industry Council). Sandals contended that clause 38(1) of the building contract mandated that any dispute or difference between the parties to the contract should be settled by way of arbitration in accordance with the Arbitration Act.
NLDL averred in its claim that the contract was not for a fixed sum but it was agreed the quantity surveyor would carry out measurements of the work done and issue, “from time to time”, interim certificates against which Sandals would make payments to NLDL. It asserted that that procedure was followed for the period January 2008 through December 2008. There were delays in the completion of the project, but by the end of December 2008, practical completion certificates had been issued for both blocks of rooms.
In February 2009, NLDL submitted documentation in order that final measurements and valuation of the work could be carried out, and for the final certificate to be issued. The submission included claims for compensation for variations which NLDL alleged that Sandals had specifically requested. The submission was made to the quantity surveyor. The variations were not approved until October 2009 and NLDL submitted its claim for the final certificate in December 2009.
Sandals objected to the issuing of the final certificate. It contended that the submission for the final certificate was made after the period, which was allowed by the contract, had expired. As a result of the objection, the quantity surveyor did not issue the final certificate.
NLDL contended that the decision concerning the issue of the final certificate was communicated to it in March 2010. It filed the present claim and the particulars of claim on 14 April 2011.
In its claim, NLDL sought damages, including the sum of J$22,390,966.76, which it asserted is the amount due under the contract. On 22 July 2011, Sandals filed a defence to the claim. In that defence it agreed that it had a contract with NLDL for construction work to be done. It asserted, however, that NLDL caused delays to the completion of the contract and was also late in filing documentation for final measurements to be done in respect of the work. Sandals asserted that it did not owe anything to NLDL.
NLDL asserted that the claim was referred to mediation and that both parties attended and participated in the mediation process. It further asserted that a case management conference was held on 3 February 2015 and that the trial of the claim was fixed for 25 April 2016. Those assertions have not been contradicted.
Sandals filed an application on 29 October 2015 seeking the following orders:
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i) The claim be struck out.
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ii) Alternatively, the claim to recover the sum of J$22,390,966.76 be struck out.
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iii) Such part of the claim that is not struck out be stayed. iv) Costs of the application and of the claim be paid by NLDL to Sandals.
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v) Such further and other relief as may be just. Batts J heard the application on the date that was scheduled for the hearing of the pre-trial review.
NLDL filed an affidavit in response to Sandals' application. The affidavit was sworn to by Mr Lloyd Daley on 29 January 2016 and sought, among other things, to particularise the amounts that Mr Daley said were due to NLDL by Sandals, and the basis for the claim for each amount. At paragraph 19 of that affidavit Mr Daley asked “that the Court refuse to strike out the Claim or grant any of the reliefs sought and to grant the amendments to the particular[s] of claim”. He exhibited to his affidavit a draft amended particulars of claim. The affidavit and its attachments are said to have been before the learned judge. They were not contained in the record of appeal and had to be sourced from the Supreme Court.
The minute of order for the hearing before Batts J recorded that he made the following orders:
“1. Application to strike out claim for 22,330,966.76 [sic] is granted.
2. Applications for summary judgment and stay of proceeding refused.
3. Permission granted to the Claimant to amend Particulars of Claim to allege sum due on a quantum [ meruit] basis.
4. Amended particulars to be filed and served on or before the 12 th February 2016.
5. Permission granted to the defendant to file an amended defence on or before 26.2.16.
6. Time extended for the defendant to file and serve list of documents and witness statement[s] to the 25 th March 2016.
7. Permission granted for the claimant to file and serve a further witness statement on or before 25.3.16.
8. Permission granted for the Claimant to put in an expert report from Mr Errol Spence Quantity Surveyor at the trial of this matter. Expert is to be available for cross examination if required.
9. Permission granted for the defendant to put in an expert report [from] a Quantity Surveyor at the trial of this matter. Expert is to be available for cross examination if required.
10. Expert reports are to be exchanged on or before the 8 April 2016.
11. Parties are to agree a bundle of documents if possible and file same on or before 18.4.16.
12. In respect of the document[s] not agreed then notices of intention to rely and or notices under the Evidence Act are to be filed and served on or before the 18.4.16.
13. Counter notices are to be filed and served on or before 21.4.16. Time is abridged accordingly.
14. No order as to costs.
15. Defendant's attorney to prepare file and serve formal order.
16. Permission granted to appeal orders 1, 2 and 3 above.”
Sandals has appealed against orders 2 and 3. NLDL has not filed a counter-notice of appeal. Both parties filed written submissions for the appeal.
The following grounds of appeal were filed by Sandals:
“(1) The learned Judge fell into error in granting permission to [NLDL] to amend its statement of case to pursue a claim for quantum meruit in circumstances where such a claim was statute barred.
(2) The Learned Judge wrongly exercised his discretion by permitting [NLDL] to amend its statement of case to allege sums due on a quantum meruit basis in the absence of:
a. a written application;
b. an order dispensing with the requirement that the application be made in writing;
c. grounds on which the application to amend to claim quantum meruit was being pursued; and d. any evidence to support such a claim.
(3) In refusing the stay of the claim for breach of contract, the Learned Judge...
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