University Hospital Board of Management v Hyacinth Matthews

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,Sinclair-Haynes JA (AG)
• Judgment Date: 02 October 2015
• Neutral Citation: JM 2015 CA 98
• Docket Number: SUPREME COURT CIVIL APPEAL NO 12/2015
• Court: Court of Appeal (Jamaica)
• Date: 02 October 2015

Between

University Hospital Board Appellant of Management

Appellant

and

Hyacinth Matthews

Respondent

[2015] JMCA Civ 49

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Philllips JA

The Hon Mrs Justice Sinclair-Haynes JA (AG)

SUPREME COURT CIVIL APPEAL NO 12/2015

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Sanctions - Application for relief from sanctions - Civil Procedure Rules 2002, Rule 26.8

Written submissions filed by Myers Fletcher & Gordon for the appellant

Written submissions filed by Richard Bonner & Associates for the respondent

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)

Morrison JA

1 I have had the opportunity of reading the draft judgment of my learned sister Phillips JA. I agree with her reasoning and conclusions and there is nothing that I can usefully add.

Phillips JA

2 This is an appeal, against the decision of Batts J, dated 27 January 2015, in which he granted the respondent relief from sanctions, from the order of F Williams J dated 17 March 2014, striking out the respondent's statement of case. Batts J made certain consequential case management orders, fixing dates for pre-trial review, the trial and the submission of an expert report. He granted leave to appeal.

Background

3 The respondent filed a claim against the appellant in negligence pertaining to a surgical procedure resulting in a total abdominal hysterectomy and in respect of certain complications which followed. The claim was filed on 4 December 2003 while the amended particulars of claim was filed on 28 November 2006.

4 A case management conference was held on 22 June 2005, where witness statements and medical reports were ordered to be filed by 29 September 2006 and the trial scheduled for 19 May 2008. On the day scheduled for trial, the court was informed that the respondent was unable to attend court as she was ill. A medical report was presented to the court. The trial was then adjourned to 14 to 16 January 2009. On 14 January 2009, the respondent was absent for reasons similar to that pertaining to the previous court date. The trial was adjourned to 8 to 11 February 2010.

5 When the matter came up for hearing on 8 February 2010, the respondent and her then attorney-at-law were absent. The trial was on that day adjourned to 10 February 2010, however the respondent and her attorney were again absent. Anderson J ordered that the matter be adjourned for a date to be fixed by the registrar and that the respondent, through her attorney-at-law, was to ensure that a trial date was set within 12 months of the date of that order. Another attorney-at-law was then approached to conduct the matter; however he subsequently left the island.

6 On 6 May 2011, the appellant filed a notice of application seeking summary judgment against the respondent and that the respondent's statement of case be struck out. That application was made on the ground that the respondent had failed to comply with the court order dated 10 February 2010, namely to ensure that a trial date was fixed within 12 months of the date of that order. That application was heard on 6 March 2013 by Edwards J. The respondent was absent from the hearing but was represented by counsel.

7 On that day, after hearing counsel Mr Krishna Desai for the appellant and Mr Lawrence Philpotts-Brown and Mr Richard Bonner, for the respondent, Edwards J made the following orders:

• ‘1. The time for the Claimant to file and serve the Notice of Application for Court Orders dated and filed on March 5, 2013 and the supporting affidavit of Richard Bonner dated and filed on March 5, 2013 is hereby abridged. The Notice of Application for Court Orders and Affidavit are allowed to stand as filed.

• 2. The Defendant's application to strike out the Claimant's claim is not granted.

• 3 The Defendant's application for summary judgment against the Claimant is not granted.

• 4. The Claimant is relieved from sanctions for failing to comply with the Order of the Hon. Mr. Justice Anderson made on February 10, 2010.

• 5. The trial of this matter is set for the 17 ^th , 18 ^th , and 19 ^th of March 2014.

• 6. Unless the Claimant attends the trial to give evidence her statement of case stands struck out.

• 7. The Claimant is ordered to file and serve any expert medical opinion intended to be relied on at trial on or before December 20, 2013.

• 8. …

• 9. …’

8 On 17 March 2014, the date fixed for the hearing of the matter, counsel for the respondent was present in court however the respondent was absent. Consequently, pursuant to order no 6, stated above, the respondent's statement of case was struck out.

9 On 24 March 2014, the respondent filed a notice of application for court orders seeking relief from sanctions under rule 26.8 of the Civil Procedure Rules (CPR). The application was supported by two affidavits, deponed to by the respondent and Mr Richard Bonner. The respondent sought to have the order dated 17 March 2014 set aside, the statement of case restored, and an extension of time granted within which to file and serve a further expert medical report in order to prosecute her claim. The notice of application came up for hearing on two occasions, but was adjourned. The application was subsequently heard by Batts J on 27 January 2015, when he made the order granting relief from sanction as aforesaid.

10 The relevant portion of the affidavits in support of the application for relief from sanction set out the respondent's position as outlined below.

Affidavit of Hyacinth Matthews sworn to on 24 March 2014, in part, as follows:

‘3. That I am informed by my said attorneys-at-Law and verily believe that on the 6 ^th day of March, 2013, pursuant to an Order of this Honourable Court and in particular paragraph 6 of the said order made by Ms. Justice C. Edwards that should I fail to attend the trial fixed for hearing on the 17 ^th day of March, 2014 the Claimant's statement of Case would stand struck out.

4. That on the said occasion I was not present and therefore would be unaware of the said Order.

5. That upon the coming on for hearing of this matter for trial on the 17 ^th day of March, 2014 which was fixed by the aforesaid Order of this Honourable Court I was only informed that I should attend the hearing by my said attorney on the said 17 ^th day of March, 2014 at about 10:30 a.m., and by the time I attended the Supreme Court at about 11:30 a.m. I was informed that my case had been struck out.

6. That my non attendance was intentional but occurred for the reasons outlined above.’

The affidavit of Richard Bonner sworn to on 24 March 2014 …

‘15. That the delay and non-compliance with the order of the Court made on February 10, 2010 was not intentional but was due to a number of circumstances:—

• a) The Claimant's Attorney-at-law on the record was struck from the roll of Attorneys and was no longer entitled to practice law in Jamaica;

• b) That access to the relevant file of the Claimant was challenging given the situation mentioned at (a) above;

• c) That Mr. Terrence Ballantyne who had been approached to have conduct of the matter subsequently left the island;

16. …

17. That on the said 6 ^th day of March, 2013 this Honourable Court made certain Orders including firstly: That unless Claimant attends trial to give evidence, her statement of Claim shall stand struck out. Secondly: Trial dates were fixed for the 17, 18, and 19 ^th day of March 2014, and Thirdly: That the Claimant is Ordered is ordered [sic] to file and serve any Expert Medical Opinion intended to be relied on, on or before December 20, 2013.

18. That I only informed the Claimant of the date fixed for trial on the said 17 ^th day of March, 2014 including inadvertence on my part, due to my having checked the Supreme Court's Civil List and saw no listing of the matter for hearing, and generally due to the pressure of work.

19. That further had the Claimant attended the hearing the matter would still would [sic] not have proceeded, since the Defendant had failed and or neglected to provide the Claimant's attorneys-at-Law with the necessary information to prepare the expert witness report which had been ordered by this Honourable Court on the said 6 ^th of March, 2014.

20. That my informing the Claimant to attend the trial on the said morning of the trial was not deliberate but due to inadvertence.

21. That I crave leave to refer to the Claimant's Claim Form and Particulars of Claim and say that it discloses that the Claimant has a real prospect for prosecuting the Claim., [sic] I do not believe that the Defendant will be prejudice in any way if the matter is restored to the List and she is allowed to prosecute her case.

22. …

23. That by letter dated 28 ^th January, 2014 I wrote to the Defendant's Attorney-at-Law informing them that the Medical Expert instructed us that there were certain pages missing from the Doctor's Surgical Note, and that several requests had been made to the said Attorneys for a full report of the said Surgical Notes, which are still not forth-coming,. [sic] …

24. That I have also previously requested from the Defendant's Attorney-at-Law a full copy of the Post Operative Surgical Notes which we have been asking for form [sic] September 3, 2013, and that surgical notes were delivered to me which was handed to the medical expert for the preparation of his medical opinion, but the [sic] informed me on closer examination that there were certain pages still missing from the post operative surgical notes. And moreover it would not be possible for him to complete his medical opinion by the 20 ^th of December, 2014 as ordered by this Honourable Court. Accordingly I hereby seek an extension of time to comply with the Order of the Court made on the 6 ^th of March, 2013.’

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