Quin J
Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 1 of 20 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 HOLDEN AT GEORGE TOWN 2 Cause No: 0053/2006 3 4 BETWEEN: 5 MARY SUSAN BLAKEMAN 6 7 PLAINTIFF 8 9 AND: 10 TODD OMAR BOWEN 11 12 DEFENDANT/APPLICANT 13 14 15 Appearances: Mr. Colm Flanagan of Nelson & Co. for the 16 Defendant/Applicant 17 18 Mr. Kyle Broadhurst and Ms. Kate 19 McClymont of Broadhurst Barristers for 20 the Plaintiff 21 22 23 Before: The Hon. Mr. Justice Charles Quin 24 Heard: 2nd March 2011 25 26 JUDGMENT 27 28 29
This is the hearing of the Defendant’s Summons filed on the 22nd November 2010 30 seeking an Order that the Plaintiff’s Writ of Summons and Statement of Claim 31 dated the 10th February 2006 be dismissed for want of prosecution by reason of 32 inordinate and inexcusable delay. 33
The Defendant’s Summons is grounded by the affidavits of Megan Reed filed on 34 the 11th January 2011 and Natalie Mayfield filed on the 24th February 2011. 35 36 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 2 of 20 Chronology of Relevant Facts 1
On the 15th February 2003 at approximately 1:00 a.m. the Plaintiff was struck by a 2 motor vehicle driven by the Defendant on the West Bay Road in the vicinity of The 3 Anchorage condominiums. The Plaintiff sustained very serious injuries as a result 4 of the accident. 5
On the 9th June 2003 the Defendant was charged with dangerous driving, leaving 6 the scene of an accident and failing to report an accident to the police. 7
The trial of the Defendant took place in March 2004 before the Summary Court of 8 the Cayman Islands. 9
On the 16th March 2004, in his evidence before the Summary Court, the Defendant 10 admitted driving the motor vehicle and colliding with the Plaintiff on the West Bay 11 Road. The Defendant estimated that he was driving at 40 mph, but said that the 12 Plaintiff dashed out in front of him. The Defendant admitted that he did not stop. 13 The Defendant said that he was in shock, drove on and then he got lost. 14
Some time in June 2003 the Plaintiff instructed Appleby, attorneys at law, and also 15 obtained Legal Aid. The Defendant’s attorneys were put on notice of the Plaintiff’s 16 claim for damages for personal injuries, loss and damage, in June 2003. 17
In the spring of 2004 the Plaintiff was forced to return to the United States as she 18 was unable to work, due to her injuries, and therefore was unable to support herself 19 in the Cayman Islands. The Plaintiff also required further medical treatment for the 20 injuries she received from the accident. 21 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 3 of 20
On the 3rd June 2004 the Defendant was found not guilty of dangerous driving and 1 failing to report an accident to the police, but guilty of careless driving and leaving 2 the scene of an accident. The learned Magistrate imposed a period of four (4) 3 months imprisonment and the Defendant was disqualified from driving for one 4 year. 5
From the records contained in the Plaintiff’s bundle it appears that on the 14th April 6 2005 the Defendant filed an application for an extension of time in which to file a 7 Notice of Appeal, together with a Notice of Intention to Appeal on the grounds that 8 the sentence imposed was too harsh. 9
There is some confusion in relation to the detail and timing of the criminal 10 proceedings because the records in the trial bundles also reveal that on or about the 11 4th March 2005, the Defendant’s appeal against his conviction for careless driving 12 was upheld and yet, on the 8th March 2005, Levers J. granted the Defendant leave to 13 appeal out of time. Then on the 20th May 2005 the Defendant’s appeal in relation to 14 the charge of leaving the scene of an accident was struck out. 15
On the 19th February 2006 the Plaintiff filed her Writ of Summons and Statement of 16 Claim in which she claimed damages for loss, damage and personal injuries 17 sustained as a result of the Defendant’s negligence in, and about, the driving of a 18 motor vehicle on the 15th February 2003. 19
The Defendant’s attorneys sought additional time to take instructions in relation to 20 the Plaintiff’s Writ of Summons and Statement of Claim on the basis that they were 21 contemplating whether or not liability would be accepted. 22 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 4 of 20
On the 28th March 2006 the Defendant filed his defence, denying liability and 1 averring that the accident and the resulting injuries to the Plaintiff were caused 2 wholly or in part by the Plaintiff’s contributory negligence. 3
On the 21st April 2006 the Plaintiff filed her Reply, denying that she was guilty of 4 contributory negligence. 5
It appears from both parties’ evidence and submissions that the parties were 6 engaged for almost 12 months in without prejudice communications. 7
By April 2007 no resolution had been reached and the Plaintiff instructed her 8 attorneys to prepare an application for an interim payment, in order to pay for her 9 ongoing medical expenses. 10
It is the Plaintiff’s case that relations between her and her then attorneys ran into 11 difficulties and, as a consequence, on the 13th March 2008 her then attorneys issued 12 a Summons to come off the record. The Plaintiff’s then attorneys also applied to 13 have the Plaintiff’s Legal Aid certificate discharged. 14
On the 2nd April 2008, one week after the Plaintiff received the Summons from her 15 attorneys to come off the record, the Plaintiff’s then attorneys obtained an Order, 16 giving them leave to come off the record. In addition, the Plaintiff’s Legal Aid 17 certificate was discharged. 18
On the 8th April 2008 this Order was served on the Plaintiff. 19
The Plaintiff’s evidence is that, as a result of the accident, she could not work and 20 was unable to take care of herself. She had ongoing medical bills and felt she could 21 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 5 of 20 not instruct new attorneys because she could not work, and had no money or 1 contacts in the Cayman Islands. 2
The Plaintiff’s evidence is that she was still suffering from the injuries she received 3 as a result of the accident. She could not afford to travel to the Cayman Islands and 4 was at a complete loss as to what she could do after receiving the Order discharging 5 her Legal Aid Certificate and the Notice of her attorneys coming off the record. 6
In 2008 a friend of the Plaintiff contacted an attorney in the United States who 7 made efforts to obtain a copy of the Plaintiff’s file from her former attorneys and to 8 instruct new attorneys. This search took some time, but the US attorney finally 9 contacted Broadhurst Barristers in December 2009. 10
In early 2010 Broadhurst Barristers received the Plaintiff’s file from her former 11 attorneys. 12
There were at least two failed attempts to hold a meeting between the Plaintiff and 13 the new attorneys and then, on the 6th August 2010 the Plaintiff’s new attorneys, 14 Broadhurst Barristers issued a Notice of Change of Attorney and a Notice of 15 Intention to Proceed. 16
On the 9th September 2010 the Plaintiff’s attorneys wrote to the Defendant’s 17 attorneys enclosing a draft Summons for Directions and Listing Form, and 18 requesting that the Listing Form be completed and returned so that the Plaintiff’s 19 Summons could be listed. 20
On the 23rd September 2010 the Plaintiff’s attorneys had not received the Listing 21 Form from the Defendant’s attorneys and accordingly they requested the Listing 22 Officer to list the Plaintiff’s Summons for Directions. 23 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 6 of 20
On the 24th September 2010 the Defendant’s then attorneys completed the Listing 1 Form and returned it to the Court. 2
On the 30th September 2010 the Plaintiff’s attorneys served the Summons for 3 Directions on the Defendant’s attorneys, which listed the hearing for the 25th 4 November 2010. 5
On the 20th October 2010 Nelson & Co., attorneys at law, issued a Notice of 6 Change of Attorney, indicating that they now represented the Defendant. 7
On the 27th October 2010 Nelson & Co. wrote to the Plaintiff’s attorneys stating 8 that they intended to issue a Summons seeking to dismiss the action for want of 9 prosecution. 10
On the 22nd November 2010 the Defendant’s new attorneys issued their Summons 11 to dismiss, and it was agreed between the parties that the Plaintiff’s Summons for 12 Directions would be stayed pending the hearing and adjudication of the Defendant’s 13 application. 14
Counsel for both parties, Mr. Flanagan and Mr. Broadhurst, have accepted that the 15 proper test to be applied on an application for dismissal for want of prosecution is 16 contained in the classic dicta of Lord Diplock in Birkett v. James [1978] A.C. 297 17 in which Lord Diplock stated at paragraph F on page 318: 18 “The power should be exercised only where the court is satisfied either (1) that 19 the default has been intentional and contumelious, e.g., disobedience to a 20 peremptory order of the court or conduct amounting to an abuse of the process 21 of the court; or (2)(a) that there has been inordinate and inexcusable delay on 22 the part of the plaintiff or his lawyers, and (b) that such delay will give rise to 23 substantial risk that it is not possible to have a fair trial of the issue in the 24 action or is such as is likely to cause or to have caused serious prejudice to the 25 defendants either as between themselves and the plaintiff or between each other 26 or between them and a third party.” 27 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 7 of 20 1
This Court has applied the principles set out by Lord Diplock in Williams v. Bob 2 Soto Diving Limited [1992-93] CILR 318, Geninvest v. Bank of Butterfield [1999] 3 CILR 223, Cayman Islands Civil Aviation Authority v. Island Air Limited [2003] 4 CILR 483 and Cranston v. M.R. Mothersill [2004-05] CILR 417. 5 The Defendant’s Position 6
Defendant’s counsel, Mr. Flanagan, submits that following the filing of the 7 Plaintiff’s reply on the 21st April 2006 the Plaintiff ought to have prosecuted her 8 action in accordance with, and within the time frame set down in, the Grand Court 9 Rules. The Defendant’s counsel submits that the Plaintiff should have taken steps 10 prior to the 5th June 2006 to have her Summons for Directions heard. 11
The Defendant’s counsel highlights the fact that the Plaintiff’s main reason for this 12 step not to have been taken was that the primary focus of her attorneys was to 13 secure an interim payment, and that is why both parties’ respective attorneys were 14 engaged in without prejudice discussions in the early part of 2007. 15
The Defendant, through his counsel, submits that the Plaintiff’s reasons for her and 16 or her attorney’s failure to progress the matter are wholly inadequate and further, 17 that the delay is inexcusable. 18
Mr. Flanagan also contends that, from the Plaintiff’s own evidence, she took no 19 positive steps in the prosecution of her action from April 2007 to early August 20
This, the Defendant contends, is a deliberate flouting of the procedural rules 21 by the Plaintiff, and or her attorneys, which has caused considerable delay and 22 thereby prejudice to the Defendant. 23 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 8 of 20
One period of time which Mr. Flanagan describes as an inordinate and unreasonable 1 amount of time was the twenty-eight (28) months between Appleby coming off the 2 record to Broadhurst Barristers being instructed. 3
Moreover, the Defendant’s counsel argues that the Plaintiff’s injuries cannot be 4 regarded as a special factor when considering the delay, and relies on the authority 5 of Martin v. Turner [1970] 1 All E.R. 256. Furthermore, Mr. Flanagan points to the 6 fact that there is no objective medical evidence to substantiate the Plaintiff’s claim 7 that her injuries affected her ability to provide instructions, and further, that this 8 issue does not appear to have been raised by her former attorneys in their 9 application to come off the record. 10
In conclusion on the question of delay the Defendant’s counsel respectfully submits 11 that, as eight (8) years have elapsed since the date of the accident, the Plaintiff and 12 her previously acting attorneys have been guilty of causing an inordinate and or an 13 inexcusable delay. 14
In applying Lord Diplock’s test in Birkett v. James the Defendant’s counsel 15 submits that the aforesaid inordinate and inexcusable delay gives rise to a 16 substantial risk that it will not be possible for the Defendant to have a fair trial of 17 the issue in the action, and is also likely to cause serious prejudice to the Defendant. 18 In this regard the Defendant submits that the inference of serious prejudice can be 19 properly drawn from the delay, in and of itself. 20
The Defendant’s counsel submits that the Defendant has always denied liability and 21 as such the trial of this action will involve disputed facts, which will have to be 22 ascertained from oral testimony of witnesses recounting what they recall of events 23 which happened almost 8 years ago. The Defendant submits that this greatly 24 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 9 of 20 reduces the chance of the Defendant being able to have a fair trial, and it would 1 make it extremely difficult for this Court to be able to determine from the witnesses 2 what really happened and the quality of their evidence will, no doubt, have 3 diminished. 4
The Defendant’s counsel submits that whilst the Plaintiff argues that there are 5 witness statements and documentary evidence prepared by the RCIPS at the time of 6 the accident, they will not deal in detail with all the points which may become 7 relevant at trial. 8
In addition the Defendant’s counsel submits that with the passing of time, the 9 recollection of detail which may not have appeared material or relevant or in issue 10 when the witnesses made those statements, may be completely gone by the time the 11 delayed trial takes place. 12
To support his submission the Defendant prays in aid the case of Houston v. James 13 P. Corry and Co. Ltd. [1972] NIJB and the decision of McGonigal J. in which he 14 reviewed a case similar to the one before this Court. In Houston v. James P. Corry 15 and Co. Ltd. the accident took place in 1966 and the Judge was reviewing it in 16
It was argued by the Plaintiff that the Defendant had the opportunity to 17 investigate the accident and review the statements taken at the time, thereby being 18 in a position to deal adequately with points relevant to the Defendant’s case. 19 McGonigal J. stated: 20 “If that is a correct view no application to dismiss an action for personal 21 injuries would succeed since insurers and their solicitors in general see and 22 take statements from such witnesses as appear relevant when making their 23 initial inquiries.” 24 McGonigal J. went on to state: 25 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 10 of 20 “I cannot, however, accept that this is a correct view. A statement made by a 1 witness, particularly by a Defendant’s witness, cannot deal in detail with all the 2 points which may become relevant at the trial and his recollection of detail 3 which did not appear material or relevant or in issue when he made the 4 statement may be completely gone by the time the delay trial takes place; nor 5 where there are some disputed issues of fact is it fair for a witness to have to try 6 to give evidence based not on actual recollection of facts, but on the 7 recollection derived from what he said in the statement made five or six years 8 ago.” 9 McGonigal J. went on to conclude: 10 “It appears to me that where there is a delay of some years the inference of 11 serious prejudice is properly to be drawn from the delay itself, and in my 12 opinion this is a case of that kind.” 13 14
The Defendant’s counsel raises another case from Northern Ireland namely the 15 Court of Appeal decision in Boyd v. Sinnamon [1974] NIJB where the Judge at 16 first instance held that the delay was both inordinate and inexcusable, but the 17 Appellant had not established an adequate degree of prejudice to justify the making 18 of an order in his favour. The Northern Ireland (NI) Court of Appeal, in the 19 Judgment of Jones L.J. stated: 20 “From my experience, at the Bar and on the Bench, I tend to take the view that 21 after a long period – here it is over eight years since the accident – prejudice is 22 inevitable and when I say prejudice I mean normally prejudice to the 23 defendant. But the standard which has to be shown is serious prejudice and if 24 on the facts of the present case the learned Judge of first instance took the view 25 that the delay was not likely to cause serious prejudice, then, on the particular 26 facts of this case, I think it was open for him to do so.” 27 28 The NI Court of Appeal agreed with the Court of first instance in finding that 29 although there was inordinate and inexcusable delay, it did not cause serious 30 prejudice. Accordingly, the NI Court of Appeal did not interfere with the Ruling of 31 the Judge of first instance. 32 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 11 of 20
The Defendant argues that he will be prevented from obtaining important evidence 1 relating to stopping distances, field of sight of the Plaintiff, level of street lighting 2 and changes to the locus, and therefore the quality of the evidence will be 3 undoubtedly affected. 4
Furthermore, the Defendant acknowledges that the medical evidence in this case 5 will be crucial and there are the potential financial repercussions to the Defendant, 6 which could be substantial. 7
The Defence argues that the lapse of time is likely to have rendered diagnosis and 8 treatment all the more difficult, thereby causing prejudice to the Defendant and 9 increased risk for the possibility of the question of potential damages. In this regard 10 the Defendant submits that he is prejudiced because the period of time prevents him 11 from obtaining any independent and reliable evidence on the Plaintiff’s pre- 12 accident medical condition, and also the Plaintiff’s condition shortly after the 13 accident. 14 15 The Plaintiff’s Position 16
The Plaintiff points out that the Defendant does not allege that the delay is caused 17 by any default of the Plaintiff being intentional and contumelious. 18
The Plaintiff submits that the burden was on the Defendant to establish that there 19 was inordinate and inexcusable delay on the part of the Plaintiff or her attorneys 20 and further that the delay would give rise to substantial risk that it would not be 21 possible to have a fair trial or, alternatively, the Defendant would be seriously 22 prejudiced by the delay. 23 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 12 of 20
The Plaintiff highlights four distinct periods of time for the Court to consider. 1
Period 1: 5th February 2003 – 10th February 2006: The Plaintiff submits that the 2 Defendant was always aware of the Plaintiff’s intention to claim, and in fact, the 3 parties, through their attorneys, were in discussions. The Plaintiff further submits 4 that at the time when the Writ of Summons was issued, the Defendant had not yet 5 determined whether he would accept liability. The Plaintiff’s counsel submits that it 6 was quite reasonable for the Plaintiff to wait until the outcome of the criminal 7 proceedings, and further, the Defendant could not be said to have been taken by 8 surprise. 9
Period 2: April 2006 – April 2007: The Plaintiff submits that this period of time 10 was from the filing of the Plaintiff’s Reply through to the “without-prejudice” 11 correspondence, and that there is nothing unreasonable or untoward about the 12 parties attempting to agree any issues they could agree between them. 13
Period 3: May 2007 – April 2008: This is the period of time from the conclusion of 14 the without prejudice communications to the Plaintiff’s first attorneys serving 15 notice that they were coming off the record. The Plaintiff submits that whilst she 16 accepts that there was a delay, it could not be described as inordinate, nor was it 17 inexcusable. The Plaintiff’s counsel submits that the breakdown of the relationship 18 between the Plaintiff and her attorney was unfortunate and partly due to the 19 Plaintiff’s reduced capacity to provide instructions as a result of her injuries due to 20 the accident. 21
Period 4: May 2008 – August 2010: The Plaintiff points out that this is the period of 22 time from when the Plaintiff’s first attorneys ceased to act and Broadhurst 23 Barristers came on the record. The Plaintiff submits that after the first attorneys 24 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 13 of 20 came off the record she was left in a hopeless position. The Plaintiff’s counsel 1 argues that for her former attorneys to apply to have the Legal Aid certificate 2 cancelled, was a most unusual step and further, it would appear from the record that 3 the Legal Aid certificate was cancelled without the Plaintiff having an opportunity 4 to address the Court. The Plaintiff’s counsel submits that it is more common for the 5 Legal Aid certificate to remain alive and to be transferred to another firm of 6 attorneys. Consequently, the Plaintiff contends that she was left in a state of 7 confusion and despair. It appears from the evidence that the Plaintiff had received 8 very serious injuries and initially had to be taken off the island for emergency 9 medical treatment. It also appears from the Plaintiff’s evidence that the injuries 10 were so serious that she could no longer remain in the Cayman Islands because she 11 was unable to work, and thereby unable to support herself. The Plaintiff’s evidence 12 is that she had a reduced mental capacity as a direct result of her injuries and this 13 may well have caused the breakdown in communication with her first attorneys 14 and, in some measure, the reason for the failure to instruct Broadhurst Barristers at 15 an earlier stage. 16
The Plaintiff’s counsel highlights the fact that the Court has to view every case on 17 its own facts. The Plaintiff’s counsel points to the fact that the Plaintiff undoubtedly 18 received serious medical injuries which made it very difficult for her to work, earn 19 a living, and thereby instruct attorneys. To some extent the Plaintiff honestly and 20 properly accepts that there has been an inordinate delay, but not an inexcusable 21 delay. The Plaintiff argues that there is a reasonable explanation for the delay. 22 Legal Aid had been cut off by the Court; the Plaintiff’s mental capacity had been 23 reduced as a result of the accident; the Plaintiff was further hampered by her 24 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 14 of 20 inability to engage in gainful occupation; and there was also the factor of the 1 Plaintiff’s geographical location. 2
The Plaintiff’s counsel submits that although there was a delay which could 3 properly be described as inordinate, the question the Court has to ask is whether the 4 delay gives rise to a substantial risk that it is not possible to have a fair trial, or, 5 alternatively, whether the Defendant has been seriously prejudiced by the delay. 6
The Plaintiff submits that the Defendant has not produced any direct evidence that 7 there is a substantial risk that there will not be a fair trial, nor is there any direct 8 evidence that the Defendant will suffer any serious prejudice. 9
In relation to evidence the Plaintiff contends that the RCIPS has produced a detailed 10 accident report with notes and sketches of the scene of the accident. The three eye 11 witnesses all gave contemporaneous statements to the police and further, gave 12 evidence in the Magistrate’s Court. The witness statements and the transcript of the 13 evidence before the Magistrate are available for the witnesses to refresh their 14 memories. All witnesses are apparently available and, most importantly, the 15 Plaintiff and the Defendant are available to give evidence. 16
Accordingly, the Plaintiff submits that it is possible to have a fair trial and further, 17 there is no serious prejudice to be suffered by the Defendant. 18
The Plaintiff takes issue with the Defendant’s submission that the inference of 19 serious prejudice can be properly drawn at the delay in and of itself. The Plaintiff 20 contends that this presumption is plainly rebutted by virtue of the existence of the 21 contemporaneous reports of the RCIPS, the Statements and that the evidence that 22 was given before the Magistrates Court is available in transcript form. 23 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 15 of 20
The Plaintiff also submits that the locus of the accident will not have changed, 1 neither will the detailed measurements and sketch maps, which were properly 2 recorded in the police reports. Further, the Plaintiff submits that the Defendant and 3 his attorneys will have full discovery of all the Plaintiff’s medical reports and 4 records. 5
The Plaintiff argues that, in fact, she is the one who has been significantly 6 prejudiced. Her position is that the negligence of the Defendant in the driving of the 7 motor vehicle on the morning in question has left the Plaintiff severely handicapped 8 and in dire financial straits. The Plaintiff argues that, should this action be 9 dismissed, the Plaintiff will have no hope of ever seeking redress for the tragic 10 event that altered her life. 11
The Plaintiff further submits that at no time, until this current application, has the 12 Defendant raised any complaint with respect to any delay in the prosecution of the 13 action. 14
The Defendant himself has sought additional time to consider the matter at various 15 points during the progress of these proceedings and he took no steps to attempt to 16 advance the matter at any stage. 17
The Plaintiff indicated to the Defendant that she would proceed with her action in 18 August 2010 and issued a Summons for Directions and Listing Form in early 19 course. After further delay the Defendant subsequently agreed to the listing of the 20 Summons for Directions and yet it was not until November 2010 that the Defendant 21 issued his application to strike the Plaintiff’s action out. In short, the Plaintiff 22 submits that whilst there has been a delay, it is not inexcusable, and has been 23 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 16 of 20 explained by the difficulties encountered by the Plaintiff as a direct result of the 1 accident and the injuries she received. 2
The Plaintiff contends that the Defendant has failed to establish that there is a 3 substantial risk that a fair trial could not take place, and further, has failed to 4 establish that he has suffered any serious prejudice as a result of the delay. 5 Conclusion 6
The Court is grateful to both counsel for their well reasoned arguments and for their 7 extensive research on relevant case law. 8
First, I do not find from the evidence before me that the Plaintiff’s default in 9 prosecuting her action in a timely fashion has been intentional and contumelious. 10 Also, there has been no disobedience to a peremptory Order of this Court. 11
However, I think when one reviews the time lapses it would be accurate to describe 12 the delay as an inordinate delay on the part of the Plaintiff and, at times, her first 13 attorneys. 14
Accordingly, there are three questions I have to ask myself: 15 i. Is the delay an inexcusable delay on the part of the Plaintiff? 16 ii. Will the delay give rise to a substantial risk so that it is not possible to 17 have fair trial of the issue in the action? 18 iii. Is the delay likely to cause or to have caused serious prejudice to the 19 Defendant? 20 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 17 of 20
In answering these questions I draw considerable help and assistance from the 1 English Court of Appeal decision in Shtun v. Zalehska 1996 1 WLR 1270 in which 2 Peter Gibson L.J., at page 1284 paragraph D quoted some general observations of 3 Neill L.J. in Slade v. Adco Ltd. LT 7/12/95 and stated: 4 “The prejudicial effect of delay on a defendant and the effect of delay on the 5 possibility of a fair trial will depend in large measure on the nature of the 6 issues in the case. In some cases much of the evidence will be in documentary 7 form, or there will be in existence statements made soon after the relevant 8 events which will enable witnesses to refresh their memories. In other cases, 9 however, including many cases involving road accidents or industrial accidents 10 where claims for damages for personal injuries are made, the crucial evidence 11 may be largely oral and any statements made shortly after the event may be 12 imprecise or incomplete. It follows therefore that each case is likely to depend 13 on its own facts. The onus of proving prejudice or the impossibility of a fair 14 trial rests on the person who asserts it…An account must also be taken of the 15 fact that delay may create difficulties for a defendant when he seeks to test by 16 way of cross-examination the reliability of the plaintiff and his witnesses.” 17 18
In Shtun v. Zalehska Neill L.J. offered some further assistance at paragraph C on 19 page 1290 when he said: 20 “In many cases, however, the resolution of the issues will depend on oral 21 testimony. Sometimes the defendant will be able to show that a witness has died 22 or has become too infirm to give evidence or has disappeared. But there will be 23 cases where the proper assessment of the defendant’s position and the nature 24 and degree of any prejudice will not depend primarily on the absence of one or 25 two particular witnesses, but on all the circumstances of the case. It is in these 26 cases where the experience of the judge has a crucial part to play in evaluating 27 prejudice and the possibility of a fair trial. As Lord Griffiths indicated in the 28 Smaller [1989] AC 1197 case at page 1208D, it is incumbent on the defendant 29 to explain his position and to establish prejudice. He must explain how the 30 relevant delay will affect his case and, where relevant, the evidence he will be 31 able to call and how it will affect the resolution of identified issues. But the 32 court is not trying the case. The judge’s task is to assess the likely effect on the 33 trial and on the defendant’s ability to put his case forward. The judge must, 34 therefore, draw inferences based on all the material before him. These 35 inferences will include inferences as to the effect of delay on the recollection of 36 witnesses. It is in this context that I think it is important to keep in mind the 37 words of Lord Browne-Wilkinson in Roebuck v. Mungovin [1194] 2 AC 224 at 38 234 when he said that a judge can infer a further loss of recollection from any 39 substantial delay. Whether that further loss of recollection is sufficient in a 40 particular case will be for the judge to evaluate.” 41 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 18 of 20
It is clear that the Plaintiff suffered very serious and life-threatening injuries. The 1 injuries necessitated her travelling by air ambulance to the University Hospital of 2 the West Indies so that her unstable neck injury could be treated by a neurosurgeon. 3 The Plaintiff underwent a cervical fusion and open reduction internal fixation of her 4 lower limb fractures, spent two weeks in the hospital in Jamaica, and then spent a 5 further period of time in George Town hospital. The Plaintiff was unable to work 6 and, due to her medical injuries, she had to fly back to the United States to undergo 7 further surgery at the Brigham and Women’s Hospital in Boston, Massachusetts. 8 The Plaintiff’s evidence is that she had difficulty with her short term memory and 9 was often confused and unable to understand instructions. The Plaintiff’s claim was 10 that these medical conditions were related to the motor vehicle accident. 11
I do accept that these serious injuries were sustained and that, consequently, the 12 Plaintiff has experienced a very difficult time. It is clear that she has always 13 intended to pursue her claim notwithstanding her problems in engaging attorneys. It 14 was not until a friend of the Plaintiff engaged an American attorney who ultimately, 15 through his persistence, was finally able to identify and engage Broadhurst 16 Barristers on behalf of the Plaintiff, that some progress was made. 17
Although this delay can properly be described as inordinate, it does not qualify to 18 be described as inexcusable. The Plaintiff has given some reasonable, plausible and 19 significant excuses for her delay in prosecuting the proceedings. 20
I turn now to the Defendant’s position. I am guided by Neill L.J.’s dicta in Shtun v. 21 Zalehska where he adopted Lord Griffiths’ dicta in Smaller: 22 “It is incumbent on the defendant to explain his position and to establish 23 prejudice. He must explain how the relevant delay will affect his case and, 24 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 19 of 20 where relevant, the evidence he will be able to call and how it will affect the 1 resolution of identified issues.” 2 3
There is no evidence before the Court that any witnesses have disappeared, died or 4 are too infirm to give evidence. It seems to me that a significant amount of crucial 5 evidence has already been reduced to writing by the RCIPS and further, we have 6 the benefit of a detailed transcript of the evidence of the witnesses that was taken 7 before the Magistrate in March 2004. I note that there is no evidence from the 8 Defendant himself as to his position and what serious prejudice he will suffer as a 9 result of the delay. 10
The Defendant and his first attorneys presumably received all the statements and 11 papers compiled by the RCIPS. The Defendant, unlike the Plaintiff, has been 12 represented by attorneys from the date of the criminal charges in the Summary 13 Court until to date. The Defendant will be able to review the papers and his 14 evidence before the Summary Court, and he and his attorneys will be able to 15 carefully review the statements of the other witnesses and the evidence given before 16 the Summary Court. The Defendant will have a full and proper opportunity to 17 prepare his defence and the cross examination of the Plaintiff and her witnesses. 18 The Defendant, the Plaintiff, and indeed all the witnesses will be able to refresh 19 their memories. 20
We are fortunate that all the witnesses are available and that these records have 21 been kept in good order. The delay will have an effect on the Defendant, the 22 Plaintiff and the witnesses, but this is something that a judge hearing the case can 23 take into account. 24 Judgment. Cause No. 0053 of 2006.Mary Susan Blakeman v. Todd Omar Bowen Coram Quin J. Date: 28.3.2011 Page 20 of 20
There has been inordinate delay in this case but I find from the evidence and all the 1 circumstances that the Plaintiff has provided reasonable and plausible excuses for 2 the delay in prosecuting her case. I also find, from all the evidence put before me, 3 that the Defendant has failed to establish that there is a substantial risk that a fair 4 trial could not take place or that he has suffered any serious prejudice as a result of 5 the delay. 6
The Plaintiff’s delay in prosecuting her action does not, in my view, amount to an 7 abuse of process. Her inactivity at various times has been explained and nowhere 8 can I find that her behaviour to prosecute the case has been intentional or 9 contumelious. In my view, in order to do justice in this case, I think it is an 10 appropriate case to allow the Plaintiff to proceed and to prosecute her case. 11
Accordingly I dismiss the Defendant’s application to dismiss the Plaintiff’s action 12 for want of prosecution and order that costs are to be costs in the cause. 13
Should the parties’ attorneys be unable to agree the necessary directions for the 14 future conduct of this action, I will hear counsel in early course. 15 16 17 Dated this the 28th day of March 2011 18 19 20 21 Honourable Mr. Justice Charles Quin 22 Judge of the Grand Court 23