United General Insurance Company v Marilyn Hamilton
| Jurisdiction | Jamaica |
| Judge | Pusey JA |
| Judgment Date | 25 July 2018 |
| Neutral Citation | JM 2018 CA 34 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 7/2014 |
| Date | 25 July 2018 |
[2018] JMCA App 23
IN THE COURT OF APPEAL
Pusey JA (AG)
SUPREME COURT CIVIL APPEAL NO 7/2014
APPLICATION NO 57/2018
Conrad George and Andre Sheckleford instructed by Hart Muirhead Fatta for the applicant
Captain Paul Beswick and Ms Gina Chang instructed by Ballentyne Beswick and Company for the respondent
Civil practice and procedure — Appeal — Application for leave to appeal — Whether appeal had a realistic prospect of success — Striking out of fixed date claim form — Whether there were reasonable grounds for bringing or defending claim.
Pusey JA (AG)
This matter has had a long and tortured history. Its genesis is a purported dismissal in 2006. The action was filed in 2007 and this appeal was filed in 2017. Many hearings have been held in the Supreme Court and this court.
This application seeks a stay of execution of a default costs certificate. This court ordered costs against the applicant on 10 November 2017. The respondent filed and served a bill of costs and notice to serve points of dispute on the applicant's attorneys-at-law on 8 February 2018.
The applicant failed to file and serve the necessary points of dispute and the applicants applied for a default costs certificate. The certificate was dated 12 March 2018.
On 13 March 2018 the applicant applied to the court to set aside the default costs certificate and for a stay of the default costs certificate. By affidavit of that date, their attorneys indicated that although they were served on 8 February 2018 the bill of costs did not come to the attorneys' attention until the default costs certificate was served on them on 12 March 2018.
In the proposed points of dispute the applicant makes a detailed challenge to the respondent's bill of costs and asserts that the costs to be awarded to the respondent ought to be $475,230.00. The respondent's default costs certificate is for $11,484,070.00.
Captain Beswick was strident in his opposition to the application for a stay. He mentioned the history of this matter. As he articulated in his written submissions “There is a consistent wanton abuse of the processes of the Court by the … Applicant and the court has consistently exercised their discretion and granted relief. They pay little regard to court orders, rules and procedures and constantly seek relief for their tardiness, non-compliance and inefficiency”.
Counsel pointed out that this court has recently commented on the conduct of this case. In a judgment handed down when the costs order, which led to the certificate that is the subject of this application was made, Phillips JA said:
“[t]he lack of attention to the protection of UGI's rights, and the scant regard paid to the orders of the court and to the rules has been quite extraordinary in this matter. We hope that the strident warnings given by this court earlier in June of this year, and now yet again in this judgment, will help representatives of UGI to take heed, as they will not obtain further indulgence or receive benefits from the court with that dilatory approach”.
The principles relevant to a stay of execution have been examined by several decisions of this court. These decisions draw upon Hammond Suddard Solicitors v Agrichem International Holdings Limited [2001] EWCA Civ 2065 and have been explored in Ferrnah Johnson-Brown v Marjorie McClure [2015] JMCA App 19 and Caribbean Cement Company Limited v Freight Management Limited [2013] JMCA App 29 In that last mentioned case the court expressed the principles in this way:
“[The] authorities show that in determining whether to grant or refuse an application for the stay of execution pending appeal, the court should consider (i) where the interest of justice lie and that (ii) the respondent should not be unduly deprived of the fruits of his successful litigation. Further, in determining where the interests of justice lie, consideration must be given to:
(a) The applicant's prospect of success in the pending appeal
(b) The real risk of injustice to one or both parties in recovering or enforcing the judgment at the determination of the appeal.
(c) The financial hardship to be suffered by the applicant if the judgment is enforced.”
Captain Beswick indicated that the application should not be granted because no good or sufficient reason has been given for the failure to file points of dispute and the court has taken a more stringent position to setting aside default costs certificates.
Counsel pointed out that the applicant implied administrative inefficiency as the reason for their failure to file the points of dispute on time. Among other cases, he relied on The Commissioner of Lands v Homeway Foods Limited and Anor [2016] JMCA Civ 21 from this court and The Attorney General v Universal Projects Limited [2011] UKPC 37 from the Privy Council. In both of these cases law officers of the state pleaded lack of resources and administrative inefficiencies to explain significant delays in obeying orders of the court in filing relevant documents under the court rules.
Captain Beswick rightly argued that these cases confirmed that administrative inefficiencies and...
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