Smart (Kevin) (by next friend Robert Smart) Robert Smart and Eugene Forrest v Percival Cunningham and Vincent Walker

JurisdictionJamaica
Judge F.A. SMITH, J.
Judgment Date19 December 2000
Judgment citation (vLex)[2000] 12 JJC 1901
Date19 December 2000
CourtSupreme Court (Jamaica)
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
BETWEEN
KEVIN SMART (by next friend ROBERT SMART)
1 ST PLAINTIFF
AND
ROBERT SMART
2 ND PLAINTIFF
AND
EUGENE FORREST
3 RD PLAINTIFF
AND
PERCIVAL CUNNINGHAM
1 ST DEFENDANT
AND
VINCENT WALKER
2 ND DEFENDANT

CIVIL PROCEDURE - Summons - Dismissal for want of prosecution - Effect of delay - Whether delay inordinate and inexcusable - Prejudicial effect of delay on issues of liability and damages

F.A. SMITH, J
1

Before me are two summonses. The first in time is the defendants' Summons to Dismiss the plaintiffs' Action for Want of Prosecution. The other is the Plaintiffs' Summons to Extend Time.

2

The Facts

3

This action arose out of an accident which occurred on the 15 th March, 1989. At the material time the first plaintiff was a school boy aged 7 years. The second plaintiff is the father and next friend of the first plaintiff. No mention is made in the pleadings as to the status of the third plaintiff, but presumably she is the mother of the first plaintiff.

4

On the date aforesaid a car bearing registration number PP3199 owned by the first defendant and driven by the second defendant collided with the first plaintiff thereby causing him personal injuries. The plaintiffs alleged that the accident was caused by the negligence of the second defendant.

5

The Writ of Summons with the Statement of Claim was filed by the plaintiffs on the 9 th February, 1990. These were served on the first defendant on the 12 th February, 1990.

6

On the 1 st March, 1990, Interlocutory Judgment in Default of Appearance was entered against the first defendant. On the 17 th July, 1990 a Summons to Proceed to assessment of damages was filed.

7

On the 29 th August, 1990 Appearance was entered on behalf of both defendants. Also on the 29 th August, 1990, a Defence was filed on behalf of both defendants. This was irregular.

8

On the 8 th November, 1990, a Summons to Set Aside Default Judgment and for leave to file Defence was filed.

9

On the 18 th February, 1991 the Interlocutory Judgment entered against the defendants was set aside and the defendants were granted leave to defend the action and to file their Defence within fourteen (14) days of the date of the Order.

10

On the 21 st February, 1991 the defendant filed their Defence. A Reply thereto was filed by the plaintiffs on the 28 th February, 1991. On the 16 th May, 1991 the Summons for Direction was heard and it was ordered that the matter be set down for trial within 30 days. On the 12 th June, 1991, the plaintiffs requested that the Registrar set down the matter on the cause list. A formal Order was filed on the 26 th November, 1991.

11

On the 26 th November, 1991 and on the 6 th March, 1993 the plaintiffs filed Certificates of Readiness.

12

On the 19 th May, 1995 the defendants filed a Summons to Dismiss Action for Want of Prosecution. This Summons was set for hearing on the 9 th October, 1995.

13

On the 9 th October, 1995 the summons was adjourned sine die with costs to the defendants. The summons was re-issued for the 10 th January, 1996 when the plaintiffs complained that the summons was short served. It was again adjourned sine die and it was further re-issued for the 29 th May, 1996.

14

On the 17 th January, 1996 the plaintiffs filed a Summons to Extend Time for Setting Down Cause for Trial. This latter summons was set for hearing on the 5 th February, 1996. The minute of Order indicates that the plaintiffs and their attorneys were absent on the 5 th February, 1996 when the summons was adjourned sine die with costs to the defendants.

15

Subsequently, it was ordered that both Summonses be set down for hearing on the same day.

16

The hearing of these Summonses began before me on the 7 th May, 1997. The hearing was adjourned for completion on the 8 th May, 1997. On that date it was not reached and was adjourned to the 15 th May, 1997. The minute of Order indicates that on the 15 th May the file was not located and the hearing was adjourned to 17 th June, 1998.

17

On the 17 th June, 1998 the file was still not located and the matter was adjourned to the 15th July, 1998. There is no record in the file as to what transpired on the 15 th July, 1998. However the Registrar wrote the plaintiffs on the 31 st July, 1998 with a view to obtaining a convenient date for continuation. The 23 rd September, 1998 was agreed upon. However, the matter was not listed for that date. Further attempts were made by the Registrar to arrive at a convenient date for continuation. The 22 nd of February, 1999 was set for the matter to be completed. On the 16 th February, 1999 the Registrar wrote the parties' attorneys, advising them that the matter "will not be heard on February 22, as the Judge has been reassigned to hear Assessment of Damages." They were asked to contact the Registrar with a view to fixing a new date. No other date was set until the 11 th December, 2000.

18

Setting down Matter for Trial

19

After an Order on the Summons for Directions is made, it is the duty of the plaintiff to set the matter down for trial within the time prescribed by the Order - section 342(I) Judicature (C.P.C.) Act. In order to set the matter down for trial the plaintiff must deliver to the Registrar a request that the action be set down for trial at the place specified in the Order - Section 343 C.P.C.

20

On the 12 th June, 1991 the plaintiffs' attorney wrote the Registrar requesting that the action be set down on the cause list. At the time of this request no Formal Order was filed. The matter was not set down on the cause list presumably because of the failure of the plaintiffs' attorney to file a Formal Order on the Summons for Direction.

21

Section 579 (2), (3) and (4) reads:

  • (2) Subject to the provisions of section 495 every Judgment or order shall unless otherwise ordered be drawn up and entered by the party having the carriage of such judgment or order or his solicitor within 14 days from the date thereof, and if any judgment or order shall not have been drawn up and entered within the time aforesaid the Registrar shall report to the Judge in writing as to the reason why the provisions of this subsection have not been complied with and whether in his opinion any and which of the parties or their solicitors are responsible for the delay, and thereupon the Judge may direct such parties or solicitors to attend before him and may unless a satisfactory explanation be forthcoming make such order as to the payment of all or any part of the costs of drawing up and entering the judgment or order as he shall think fit. He may also direct that as against any party responsible for such delay the time for appealing from such judgment or order shall run as from the date when the same ought to have been drawn up and entered in accordance with this subsection.

  • (3) Every judgment or order shall after entry be forthwith filed with the...

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