Sherrod Hemans v Tyshawn Omar Walters
| Jurisdiction | Jamaica |
| Judge | Jarrett, J. |
| Judgment Date | 29 September 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2013HCV03341 |
and
[2023] JMSC Civ 159.
Jarrett, J.
CLAIM NO. 2013HCV03341
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Mr. Lance Lamey instructed by Bignall Law for the claimant.
Miss Houston Thompson instructed by Dunbar & Co for the 1 st defendant
It is only fitting that I pause to pay tribute to Counsel Mr Lance Lamey (deceased), who argued the application on behalf of the claimant, before his untimely death in June 2023. He will long be remembered for his ready wit and remarkable tenacity.
There are two applications before me for determination. One filed by the claimant under CPR 19.4(1), 19.4(2) (a) and (b), and 19.4(3) (a) and (c) for permission to amend his statement of case to add or substitute Aundray Brown as the 2 nd defendant, for the named defendant Anthony Morrison. The notice of application was filed on May 24, 2022, and is supported by the Affidavit of Vaughn Bignall, which was also filed on May 24, 2022. The application is in relation to a Further Amended Claim Form and Further Amended Particulars of Claim which were filed on the same day of the application. By his application, the claimant is asking that those amended pleadings stand, as filed, and served. Unsurprisingly, the application is stoutly opposed by the 1 st defendant who has also filed his own notice of application seeking to strike out the further amended pleadings. This is the other application which is before me. It was filed on June 10, 2022. Since both applications are intrinsically connected, I will analyse and discuss them together.
In his claim form filed on June 5, 2013, the claimant claims against Omar Walters and Anthony Morrison as 1 st and 2 nd defendants respectively. He alleges that on February 11, 2013, he was a passenger in the 1 st defendant's Honda Fit motor car being driven along the Guys Hill Main Road by the 2 nd defendant, when due to the negligence of the 2 nd defendant, the motor vehicle collided into the front of a Toyota Corrolla motor car and then into the rear of an Izuzu motor truck, thereby causing him loss and damage. He brings his claim in negligence claiming that the 2 nd defendant was the servant and/or agent of the 1 st defendant at the material time.
In the 1 st defendant's defence filed on November 7, 2018, he denies knowing the 2 nd defendant Anthony Morrison, and says that at the time of the accident, his cousin Aundray Brown was driving his Honda Fit motor car. Aundray Brown was not his servant or agent but had borrowed his car to visit friends. He denied that his motor car was in an accident with a Toyota Corrolla and an Izuzu motor truck as alleged by the claimant. The defence goes on to say that the 1 st defendant does not know the claimant and further denies that the claimant was a passenger in his motor car at the material time. The defence was signed by Tyshawn Omar Walters and the name of the 1 st defendant was modified in the heading of the defence to read: “Tyshawn Omar Walters (incorrectly referred to as Omar Walters)”
An amended claim form was filed on February 1, 2021, by which the name of the 1 st defendant was changed to Tyshawn Omar Walters and the 2 nd defendant was now said to be the servant and /or agent and / or authorised driver of the claimant. Amendments were made to the pleaded special damages, but those amendments are not relevant to the current applications.
The application to amend to add or substitute Aundray Brown as the 2 nd defendant is being made after the end of the limitation period. In an affidavit filed by Vaughn Bignall on May 24, 2022, in support of the application, Mr Bignall says that he is the attorney-at-law with conduct of the claimant's claim, and he received instructions from the claimant on June 5, 2013. He says that in the defence, the 1 st defendant alleges that the 2 nd defendant's name is incorrect, but the defence was filed: “dangerously close to the end of the expiration of the limitation period without sufficient time for the claimant to respond”. Mr Bignall says his instructions were to amend the claim to give a “precise reflection” of the claimant's statement of case. He goes on to say that the court's permission for the amendment is required as the limitation period has expired, the changes sought are material to the claimant, as well as for a fair and just disposal of the issues at trial. His further evidence is that the filing of the claim with the 2nd defendant as Anthony Morrison was a ‘genuine mistake’, as it was genuinely believed that he was the proper party. According to Mr Bignall, the defendants will not be severely prejudiced by the amendment and if it is allowed, the claim will be tried on the same set of facts.
Mr Lance Lamey counsel for the claimant began his submissions by directing my attention to the abovementioned affidavit evidence of Mr Bignall. Counsel argued that it is the 1 st defendant who would have the best information about who was in his car at the time of the accident. He posited that the name of the 2 nd defendant would have been given to the claimant at the accident scene. Learned Counsel submitted that the defence was served on November 8, 2018, and amended particulars of claim was filed to amend the 1 st defendant's name to Tyshawn Omar Walters to keep the claim: “in tandem with the defence”. He submitted that the court should infer that the failure to correct the name of the 2 nd defendant was an oversight. It was further submitted that Tikal Limited, Wayne Chen v Everley Walker [2020] JMCA Civ33, was distinguishable from the present case as that case did not fall under CPR 20.6. The present case fell under CPR 20.6 as the claimant is seeking to correct an error and not add a party. Later, in his submissions in response to the 2 nd defendant's application, Mr Lamey said that the claimant was not in fact relying on CPR 20.6.
Miss Houston Thompson took several issues with the claimant's application. She argued that the 1 st defendant's defence was served from November 8, 2018, yet the amendment to change the name of the 2 nd defendant was not filed until May 24, 2022. Had the claimant acted promptly the application would not have been necessary. According to learned counsel, the amendment is being made in an attempt to meet the case of the 1 st defendant and is not being made because of any genuine mistake. There was no “error”, argued counsel. She submitted that the claimant was present at the scene of the accident and therefore would have been able to determine who was there.
Counsel cited the decision in Tikal Limited, Wayne Chen v Everley Walker (supra) and argued that the amendment is introducing an entirely new party to the claim after the limitation period, which, she contends the court is not empowered to do. She said that if service were attempted on Anthony Morrison and also on Aundray Brown, there would be two different persons before the court. Anthony Morrison was the named driver at the time the claim was filed, which was five months after the accident. Ten years later, after the limitation period has expired, the claimant now attempts to change who the driver was. If such an application is granted, that would not be in keeping with the overriding objective of the CPR. Miss Houston further submitted that there would be incurable prejudice to the opposing parties were the application to be granted, as Mr Aundray Brown in particular, would be joined to a claim after the expiration of the limitation period. In closing she said the application to amend was not made in good faith as this is not a case of a genuine mistake.
In his application filed on June 10, 2022, the 1 st defendant asks that the further amended claim form and further amended particulars of claim be struck out and that the amendment be disallowed. He relies on CPR 20.1, to ground his application and contends that an amendment to a statement of case after the expiration of the limitation is not permissible without the court's permission. In this case, the amended pleadings were filed without obtaining that permission. A further ground on which he relies is that the amendments will result in the addition of a new party to the claim after the limitation period. The cause of action arose on February 11, 2013, and the claim became statute barred on February 11, 2019. The 1 st defendant's application is supported by the affidavit of Racquel Dunbar, attorney-at-law, filed on June 10, 2022, which exhibited an affidavit of the 1 st defendant filed in support of his earlier application in which he successfully applied to set aside a default judgment which had been entered against him.
Miss Thompson's submissions closely mirrored her earlier submissions made in respect of the claimant's application. She argued that there was delay on the claimant's part in making his application. Counsel said the claimant would have been aware that the 1 st defendant was contending that he did not know Anthony Morrison and that the person driving his car at the material time was Aundray Brown, from the 1 st defendant's application to set aside the default judgment. She said that a copy of the 1 st defendant's draft defence was exhibited to the affidavit in support of that application. The claimant would therefore have been aware since June 2018 of the 1 st defendant's case. There could have been a completely different...
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