Verma Dayes v The Ritz Carlton Hotel Company of Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 13 December 2011
• Judgment citation (vLex): [2011] 12 JJC 1301
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2008 HCV 03251
• Date: 13 December 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2008 HCV 03251

BETWEEN

VERMA DAYES

CLAIMANT

AND

THE RITZ CARLTON HOTEL COMPANY OF JAMAICA LIMITED (Trading in Jamaica as The Ritz Carlton Golf and Spa Resort Rose Hall Jamaica)

DEFENDANT

IN CHAMBERS

Danielle Archer and Dale Staple instructed by Kinghorn and Kinghorn for the claimant

Kerry-Ann Sewell instructed by Nunes Scholefield DeLeon and Co for the defendant

INTERIM PAYMENT – WHETHER SUPREME COURT HAS POWER TO GRANT INTERIM PAYMENT UNDER THE CIVIL PROCEDURE RULES 2002 – WHETHER POWER ABOLISHED AND NOT REENACTED – SECTION 4 (2) (j) OF THE JUDICATURE (RULES OF COURT) ACT – PART 17 OF THE CIVIL PROCEDURE RULES

SYKES J

1 The facts of this case are not crucial to resolving the issue raised in this application for interim payment. They can be stated in two sentences. Miss Verma Dayes says that she is a room attendant at The Ritz Carlton Hotel (the hotel), a true five star hotel, located on the northern coast of Jamaica just outside of the famed Montego Bay and adjacent to wonderful golf courses. On May 19, 2007, while engaged in her duties as a room attendant she was retrieving towels from a house keeping cart when a coworker maneuvred a steel cart in such a manner that it hit her on her hip causing injury. She has launched a claim in negligence or breach of contract to recover damages for the injuries allegedly suffered by her.

2 The claim has not yet been heard by the court yet she seeks a payment from the hotel because she says that she is likely to succeed at trial and so there is no need to await that day. The hotel resists. In classic syllogistic reasoning, Mrs Sewell says, a court cannot grant interim payment orders unless it is specifically empowered to do so by an Act of Parliament because no court has any inherent power to make such payments (the major premise). In Jamaica, there is no statutory power empowering the court to make these payments (minor premise). Therefore, this court has no power to grant the application for interim payment in this case (conclusion). Mrs Sewell submitted that part 17 of the Civil Procedure Rules (CPR) that defines the circumstances in which such a payment (called an interim payment) can be made presupposes that the power to make the award exists. She also submitted that Part 17 cannot and does not create the power to order interim payments. Is Mrs Sewell correct? Mr Staple agrees with the major premise but disagrees with the minor premise. He says that the power is derived from section 4 (2) (j) of the Judicature (Rules of Court) Act and part 17 of the CPR. Is he correct? Does the Supreme Court of Judicature of Jamaica have the power to order interim payment? That is the question.

Interim Payments

3 On January 18, 1989, the Court of Appeal declared that there was no statutory power in Jamaica enabling the Supreme Court to order a defendant to make a payment (called interim payment) in a claim before liability was determined at a trial ( Jamculture Limited v Black Upper Morass Development Co. Ltd (1989) 26 JLR 5 ). The court also held that the provisions in England relating to interim payments could not be imported into Jamaica via section 686 of the then extant civil procedure rules known as the Judicature (Civil Procedure Code) Law. The result of this reasoning was that section 32 of the Supreme Court Act 1981 (UK) (dealing with interim payments) was not applicable to Jamaica. Campbell JA, who delivered the judgment of the court, held that the development of the law in Jamaica on this point would have to wait on legislative enactment. His Lordship stated that the two competing interests, (a) that of the claimant to receive early compensation for a wrong clearly done to him and (b) that of the defendant who should not “except by a voluntary gesture, part with his property by way of payment of compensation unless and until he has been adjudged a wrongdoer by due process of law”, would have to be resolved by statutory power.

4 His Lordship expressed the fundamental reason why the common law did not develop the concept of interim payments. The basic rule was that a defendant could not be compelled to pay compensation to a claimant unless and until the defendant was found liable by a court. Any payment in advance of liability being established had to be voluntary.

5 The Jamaican Parliament responded to Campbell JA's invitation by passing three statutes dealing with interim payments. These were Judicature (Civil Procedure Code) (Amendment) Act, 1997; the Judicature (Rules of Court) (Amendment) Act, 1997 and the Judicature (Resident Magistrates) (Amendment) Act, 1997.

6 The Judicature (Civil Procedure Code) (Amendment) Act inserted Title 36A into the principal law, The Judicature (Civil Procedure Code) Law. The title to this new section read “Interim Payments.” Section 441A (1) read:

The Court may, where there are proceedings pending and in such circumstances as may be specified in Rules of Court make an order requiring a party to any proceedings to make to another party to the proceedings an interim payment of such amount as may be specified in the order.

7 This amendment was brought into force on September 24, 2001 (see Jamaica Gazette Supplement, Proclamations Rules and Regulations, Vol. CXXIV, No. 86, Legal Notice No. 137 dated September 24, 2001). The practical effect of this is that the Supreme Court did not have power to grant interim payment orders until September 24, 2001 even though that legislation was passed in 1997.

8 The wording is to be noted. The Court was authorised to make interim payment orders but only in the circumstances specified by the Rules Committee. This is why section 4 (2) (j) was added to the Judicature (Rules of Court) Act. The view must have been that the Rules Committee was to have power only to specify the circumstances for the interim payment and not have power to give the Supreme Court power to make interim payments. The significance of this distinction will become apparent.

9 The Judicature (Rules of Court) (Amendment) Act added this provision to section 4 (2) and this addition became and still is section 4 (2) (j):

Rules of court may make provisions for all or any of the following matters –

…

• (j) for specifying the circumstances in which the Supreme Court may make an order for an interim payment;

10 This Act came into force on September 24, 2001 (see Jamaica Gazette Supplement, Proclamations Rules and Regulations, Vol. CXXIV, No. 86, Legala Notice No. 136 dated September 24, 2001).

11 The amendment to the Judicature (Resident Magistrates) Act reads:

The Court may, where there are proceedings pending and in such circumstances as may be specified in the Resident Magistrate's Court Rules, make an order requiring a party to any proceedings to make to another party to the proceedings an interim payment of such amount as may be specified in the order.

12 Thus the Resident Magistrates were empowered to make interim payment orders but only in such circumstances as may be specified in the rules of the Resident Magistrate's Court Rules. However, research has uncovered the fact that this provision has not been brought into force. Section 1 of the amendment stated that it would be brought into force on a day to be named in the Gazette. That day has not been gazetted.

13 While the amendment in respect of the Resident Magistrates was clear that the court now had the statutory authorization to grant interim payment orders in...