The National Workers Union v Shirley Cooper
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Simmons JA,Dunbar-Green JA |
| Judgment Date | 11 December 2020 |
| Neutral Citation | JM 2020 CA 154 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 65/2018 |
| Date | 11 December 2020 |
[2020] JMCA Civ 62
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Miss Justice Simmons JA
THE HON Mrs Justice Dunbar Green JA (AG)
SUPREME COURT CIVIL APPEAL NO 65/2018
Written submissions filed by Rachael S Dibbs for the appellant
Written submissions filed by Nigel Jones and Company for the respondent
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have had the privilege of reading, in draft, the meticulous judgment of my learned sister, Dunbar-Green JA (Ag). Whereas I was initially of the view that the appellant had a defence with a real prospect of success, I am convinced by the compelling analysis of Dunbar-Green JA (Ag) that it has not put itself in a position to advance that defence. I agree that the appeal should be dismissed. I trust that this result will be a further warning to litigants that the orders of the court are to be obeyed and that failure to abide by that principle will be costly.
I agree with the reasoning of my learned sister Dunbar-Green JA (Ag) and I have nothing further to add.
Dunbar-Green JA (AG)
This is an appeal by the National Worker's Union (the appellant) against the decision of a master of the Supreme Court refusing the appellant's application for relief from sanctions. The ‘unless order’ which was made by Anderson J on 11 May 2016, required the appellant to file and serve witness statements by a specified date, failing which its defence would be struck out. The appellant having failed to comply, the respondent, Ms Shirley Cooper, made a successful application before the learned master for the sanction to be applied and judgment entered in her favour.
The appellant herein is the defendant in the court below while the respondent is the claimant. Proceedings were commenced with the filing of a claim form on 15 January 2013. In her claim, the respondent sought damages for breach of her employment contract. She averred that she had been an employee of the appellant for over 35 years and that she resigned her job in 2008, (in what appears to have been amicable circumstances). She stated that she had requested a severance package in a resignation letter which she withdrew for revision but had inadvertently omitted that request when her letter was re-submitted. She claimed she was entitled to severance pay based on the practice in the organisation as per the appellant's staff manual.
According to the appellant, in its defence filed on 30 January 2013, the respondent had voluntarily demitted office and received all legal entitlements and as such would not be entitled to severance pay. It averred that the respondent's claim is based on a misunderstanding of the staff manual, which provides for a discretionary severance payment.
On 27 January 2015, the case came up for case management conference before C Brown J (Ag, as she then was). The parties were represented by their respective attorneys-at-law. The respondent and Mr Granville Valentine, then General Secretary of the appellant, were also in attendance. The judge made the usual case management orders, including that standard disclosure was to take place by 18 September 2015, and witness statements, pre-trial memorandum and listing questionnaire were to be filed and served by 30 October 2015, 22 January 2016 and 13 April 2016, respectively.
On 27 January 2016, Christopher O Honeywell and Company, then attorneys-at-law for the appellant, filed a notice of application to remove their names from the record as counsel representing the appellant. In the affidavit in support of the application, sworn by Felisia Forrester, legal secretary, it was deposed that the appellant had failed to settle its payment obligations to counsel. She also indicated that the firm would discontinue legal representation of the appellant.
When the pre-trial review came on for hearing on 29 January 2016, neither party nor its legal representative was in attendance. At the rescheduled pre-trial review on 27 April 2016, before Brown Beckford J, the respondent's attorney-at-law was present but the appellant was again absent and unrepresented. The pre-trial review was rescheduled to 11 May 2016, with an order from the judge that the appellant be served with the notice of adjourned hearing, personally. She also extended the time for the respondent to file witness statements and listing questionnaire.
On 4 April 2016, an affidavit of service sworn by Conwell Baines was filed by Mr Honeywell. In it, Mr Baines averred that on 21 March 2016, he posted to the appellant, by registered mail, the amended notice of the adjourned hearing to remove the attorney's name from the record. He also exhibited the certificate of registered posting. That affidavit and the attestation page for the exhibit, however, are not dated and do not bear the name of the Justice of the Peace who purportedly attested his signature. Mr Baines' affidavit is, therefore, defective as it offends against rules 30.2(e)(v) and 30.4(1)(d) of the Civil Procedure Rules (CPR) which stipulate that an affidavit must contain the date on which it was sworn and the full name of the person before whom it was sworn. The effect is that Mr Baines' affidavit would have been inadmissible before the learned master. There is no indication that she had considered it.
On 11 May 2016, the matter returned for pre-trial review before Anderson J. While counsel for the respondent was present, neither the appellant's representative nor its counsel was in attendance. Anderson J made the orders which are central to this appeal. They are, as far as relevant, reproduced below.
“1. There shall be no pre trial review held with respect to this claim and any earlier order for the holding of a pre trial review is varied accordingly.
2…
3. All case management orders not yet complied with by the Defendant, necessitating the filing and service of documents shall be complied with and all such documents shall be filed and served by or before May 31 st, 2016 failing which the Defendant's statement of case shall stand as struck out without the need for further order.
4. The parties shall respectively file and serve skeleton submissions and authorities and shall do so, by or before June 6, 2016…”
On 25 May 2016, the matter came up in chambers, before Master Yvonne Brown (Ag, as she then was). Counsel for both parties were present. The appellant was not in attendance. The master granted the application removing the name of the firm of Christopher O Honeywell and Company from the record as attorneys-at-law for the appellant, and ordered that the firm serve the order on the appellant. The learned master also vacated the trial date and scheduled another pre-trial review for 30 January 2017, notice of which was to be filed and served by the respondent's attorney-at-law. Neither party appeared at the pre-trial review on 30 January 2017.
Filed on 24 November 2017, was an affidavit of service sworn by Richard Taylor wherein he deposed that he had served the appellant with the formal order of Anderson J's orders. On even date, Jovell Barrett swore and filed an affidavit in which she exhibited the ‘unperfected’ order of Anderson J, along with the purported admit page evidencing service. Although she referenced an admit copy of the formal order of Master Yvonne Brown in respect of the pre-trial review held on 25 May 2016, that document was not included in her affidavit.
The appellant failed to comply with the ‘unless order’ by 31 May 2016. Consequently, on 27 November 2017, the respondent filed an application for the appellant's case to be struck out and judgment entered in her favour. In the alternative, she sought another ‘unless order’ for the appellant to comply with all pre-trial review orders within 14 days.
On 7 December 2017 when the respondent's application was scheduled to be heard, counsel Rachel Dibbs, on behalf of the appellant, filed an application headed “Notice of Application for Court Orders For Relief from Sanctions by the Defendant”. She also filed in support an “Affidavit of Urgency” by Granville Valentine sworn on even date as well as a “Notice of Change of Attorney”.
The orders sought on the appellant's application before the learned master were:
“1. That orders 1, 3 and 4 made on 11 May 2016 be set aside and time extended for compliance by the Defendant.
2. That a date be set for pre-trial review.
3. That the Defendant be served with the application and affidavit(s) relied upon to secure the Orders made on 11 th May 2016.
4. Costs to the Defendant.
5. An abridgment of time for filing and serving this application and supporting affidavit.
6. Such further and other relief as this Honourable Court deems just.”
In seeking to advance its application before the learned master, the appellant relied on 14 grounds. For succinctness, they are reproduced, in summary, below:
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(i) pursuant to rule 11.18(1) of the CPR, a party who was absent when an order was made can apply to have it set aside. In that regard, the appellant has a good reason for its failure to attend as it had not been advised by its legal representative of the court date or the content of the order, and some other order would have been made had it been represented;
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(ii) certain handwritten parts of the order of 11 May 2016 are illegible;
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(iii) there was no service of the formal order made by Anderson J and the respondent had not satisfied proof of service;
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(iv) no notice of the adjourned hearing on 27 April 2016 was served on the appellant;
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(v) the overriding objective and justice of the case required that the application be granted;
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(vi) the appellant's non-attendance on 11 May 2016 was unintentional,...
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