Shanan Lawrence v Branch Developments Ltd
| Jurisdiction | Jamaica |
| Judge | Orr, J |
| Judgment Date | 19 May 2023 |
| Docket Number | CLAIM NO. 2017HCV04073 |
| Court | Supreme Court (Jamaica) |
[2023] JMSC. CIV 134
Orr, J (AG)
CLAIM NO. 2017HCV04073
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Application challenging the jurisdiction of the court to hear the claim, whether the failure of the Claimant to serve the prescribed notes to the Defendant and form of defence with the claim form during the life of the claim is a nullity, whether amendments made after the expiration of the limitation period should be permitted to stand, the duty of a litigant to pursue his claim and to take all reasonable steps to secure a date for the hearing of the application, the requirement to file an application and a supporting affidavit simultaneously.
Mrs. Tamara Riley-Dunn and Mrs. Karlane McFarlane Richards instructed by Nelson Brown Guy and Francis for the Claimant.
Mr. Gavin Goffe and Mr. Jovan Bowes instructed by Myers Fletcher and Gordon for the Defendant.
Before me is an application challenging the court's jurisdiction to hear this claim on the basis that the claim form served on the Defendant is invalid and therefore a nullity. The Defendant has also submitted that the claim is statute barred.
The Defendant asks, in the alternative, that summary judgment be entered for the defendant, and also challenges amendments to the claimant's particulars of claim which she made after the expiration of the limitation period and without the court's permission. The Defendant says that these amendments should not be permitted to stand.
In the claimant's written submissions, Counsel took a preliminary point as to whether the application challenging the court's jurisdiction was properly before the court.
The preliminary point, though included in the written submissions, was not taken prior to the start of the hearing. The issues raised were therefore not addressed as a preliminary point before the application was heard and only considered after the hearing.
Relying on Rule 9.6(4), counsel submitted that the Defendant was required to file an application within the time for filing a defence and this application must be supported by affidavit evidence. There being no supporting affidavit filed with the application, and no application to permit the Defendant to file the affidavit out of time and amend the application, (which was subsequently amended in January 2023), counsel for the Claimant submitted that the application was not properly before the court and should not be heard.
Counsel also submitted that the Defendant must file a defence where they seek to raise the limitation defence.
Rule 11.4 provides that where an application is to be made within a particular time, it is made when it is filed at the court's registry. The Defendant would have therefore complied with the requirement to file the notice of application challenging the court's jurisdiction within the prescribed period to file a defence. The application also included alternative orders sought, including an order to strike out the claim, summary judgment and that the amendments and medical reports attached to the amended particulars claim be struck out.
Although the application challenging the jurisdiction of the court to hear the claim was amended, the amendment did not touch and concern the issue of the jurisdiction of the court. In the circumstances, I do not believe that counsel required permission to amend his application.
An affidavit in support of the application was not filed when the application was made, but was filed six years later, in 2023. I have dealt with the issue of the defendant's delay in filing the supporting affidavit in detail later in this decision.
In relation to the Defendant's submission that the claim was statute barred, and that where the claimant was allowed to pursue her claim, the defendant would be deprived of a statutory defence of limitation, counsel submitted that the defendant was required to file a defence in this regard. Counsel pointed out that this defendant did not file a defence and could not therefore pursue this aspect of the application.
I do accept that I am bound by the cases counsel has referenced in her submissions which highlight that where a Defendant seeks to rely on the limitation defence, he must file a defence. This issue was also not raised orally as a preliminary point.
It must be noted also, that when the application commenced before me, both counsel made submissions on the jurisdictional point only, thereafter the hearing was adjourned. Based on Mr. Goffe's submissions that the claim was a nullity, it was his submission that there was no need for the defendant to file a defence. He was confident to rely on the jurisdictional issue only and did not address the other issues in his application.
Procedurally, if he succeeded on his application, the necessity to file a defence would not have arisen.
It was only after hearing from counsel on the jurisdictional issue and after the adjournment that I asked counsel to file further submissions on the other issues that the Defendant had raised in its application so that all of the issues could have been considered in one hearing.
I have considered the jurisdictional issue first, this being a threshold issue. The findings of the court on this point will determine whether it is necessary to address the other orders requested in the defendant's application.
The basis of the defendant's challenge, is that while the claim form and particulars of claim filed on November 29, 2017, were served before the validity of the claim form expired, the defence form and prescribed notes to the Defendant were not served with the claim form.
Mr. Goffe pointed out that on February 16, 2023, a further amended claim form was filed and served on the defendant. The missing prescribed notes to the Defendant and the form of defence were attached to this amended particulars of claim.
Relying on rule 8.16(1), counsel has argued that the claim is a nullity because the missing documents must be served with the claim form. Where they are attached to an amended claim, service of this amended claim must be effected during the six-month life of the claim.
Mr. Goffe relied on the affidavit of service filed on behalf of the Claimant on December 15, 2017, wherein the process server clearly outlined that he only served the claim form, particulars of claim and the acknowledgment of service on the defendant.
In his oral submissions, Mr. Goffe pointed out that the court must accept this evidence of the process server who should not be allowed to give further evidence as to service at this stage.
Mr. Goffe further submitted that the claim form having already expired when the amended particulars of claim was served, this would preclude the Claimant from relying on the amended particulars of claim.
He relied on the recent decision of this court in Oral Williams v Diamond Paints Manufacturing Company Limited [2022] JMSC Civ 113, to support his position.
There being no proper service of the claim form with all of the documents required by Rule 8.16(1) (b) & (c), the Defendant would not be required to file a defence, and it was on this basis that no defence was filed.
Further, there being no application before the court to extend the validity of the claim form, not only had the claim expired, but the court could not entertain an application to extend the validity of the claim, after the claim form had expired.
In closing, he submitted that the Claimant could not find solace in Rule 26.9(3) and the court's power to rectify matters where there had been a procedural error. That rule applied only in cases where the rule that was breached did not attach a sanction. The sanction for failing to serve the defence form and prescribed notes to the Defendant during the validity of the claim, was that the claim was a nullity. He concluded his submissions by stating that since the Claimant could not overcome this hurdle, there was no need for the court to venture further into the other grounds of the defendant's application.
Mrs. McFarlane Richards conceded that the Defendant was not served with all of the documents as required by Rule 8.16. She submitted however that this error was an irregularity that could be cured by the court's powers in Rule 26.9(3). The procedural breach was therefore not a nullity and fatal to the claimant's claim.
She too relied heavily on Williams v Diamond Paints Manufacturing Limited. Counsel submitted that the amended claim took its life or validity from the original claim which was served before it expired. The validity of the amended claim “relates back” to this original claim thus any subsequent amendment to the claim gets its validity from the original claim. The amended claim was therefore still valid and properly served. Mrs. McFarlane Richard's interpretation of that case was therefore at odds with that of counsel for the defendant.
In challenging this court's jurisdiction to hear Miss Lawrence's claim, the court must consider whether the claimant's failure to serve the prescribed notes to the defendant and the form of defence with the original claim and during its six-month validity is a nullity; or as the Claimant has suggested, a mere irregularity.
Both counsel cannot be correct in their interpretation of Williams v Diamond Paints Manufacturing Limited, as their arguments are at opposite poles. Thus before considering the court's reasoning in that case, I have revisited the first instance decision in Joseph Nanco v Anthony Lugg & B & J Equipment Limited [2012] JMSC Civ. 81 which I found most useful in my analysis.
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