Levers J
1 IN CHAMBER 2 IN THE GRAV 3 4 5 6 BETWEEN: 7 8 9 10 AND: 11 (1) 12 (2) 13 BEFORE: T RS ND COURT OF THE CAYMAN ISLANDS CAUS DAVID LORRIBURN CRANSTON PI MRS. ON RICARDO MOTHERSILL Fir LAVONA MOTHERSILL Se e Honourable Madam Justice Levers S. s. Os Gul LEGAL DEPARTMENT JUN 16 DS E NO. 78 of 1999 CHAMPS intiff Standing second Defendant 15 16 APPEARANC 17 Counsel for 18 Duckworth 19 Counsel for t 20 Conolly 21 Counsel for t 22 23 HEARD: June 24 25 26 27 28 Levers J. 29 E S: The Plaintiff: Mrs. Rosie Whittaker-Myles of Charles First and Second Defendants: Mr. Robert Jones the Third Party: Mr. Shaun McCann of Campbells 2, 2005 JUDGMENT Adams Ritchie & of Ritch & 30 The application 31 of prosecution 32 Defendants in 33 34 By this sum 35 Mothersill sec. ( 36 Lorriburn Cran on before the Court is for the Plaintiff's claim to be a and the costs of and occasioned by this appeal any event. mons the Defendants Marlon Ricardo Mothers k to have the action brought by the then mind ston struck out for want of prosecution. tuck out for want cation to be the sill and Lavona r Plaintiff David
1 2 The incident 3 the infant Pl 4 as follows: 5 6 1. Acc 7 2. 3 y which gave rise to the action occurred on the 23 intiff suffered serious injuries therefrom. The histo sidian on 23 March 1996. years later a Writ of Summons was filed on 4 February March 1996 and ry of the action is ary 1999. 8 5. Stat 9 4. Ac 10 5. De 11 6. An 12 7. Thi 13 8. Act 14 Dec 15 16 The Plaintiff's 17 one, 2 years statement of Claim was filed on 12 May 1999. schedule of Damages attached thereto was filed in ce of the First and Second Defendant on 17 July Amended Statement of Claim was filed on 1 July 19 d Party Notice was filed on 2 September 1999. knowledge of Service of Third Party Notice member 1999. subsequently filed three notices of intention to pr after 1999. The second one, 1 year after the first 13 May 1999.
was filed on 23 proceeds. The first one and the third 18 one in excess 19 20 The matter of 21 Grand Court R 22 taken steps to 23 that at this stat ( of two years after the second notice of intention to have been proceeded with within the time rules. The Plaintiff should have filed a reply if nec have a Summons for Directions heard. It is per hase some nine years have elapsed since the date of proceed. he frame of the essary, and then ment to point out the accident. 2
1 2 Mr. Jones o 3 prosecuting 4 He says the 5 First Defend- 6 him back. F 7 would testify 8 that he was in charge of the Defendants submits that there was a his action and that his clients were severely prejud- y have been prejudiced because since the acciden- ant has left the Island and that this Court has no jurisdiction to ture, the submits that he is now unable to find the as to the accident. This is of importance because Defendants have not admitted liability. From the 9 driver of the vehicle, has attributed part blame 10 on his client who 11 the Third Par- 12 13 What is the F 14 15 The Plaintiff's 16 17 1. The accident was caused by the Third Party who Defendants have not admitted liability. From the 18 driver of the vehicle, has attributed part blame 19 on his client who 20 plaintiff's response? attorney submits: 21 2. The 22 major the Plaintiff was a 17 year old Caymanian w- 23 ved in the accident and that initially it was his ma- nce at the time of the accident, that gave inst- 24 ructions. t subsequently when the Plaintiff took over instruc- 25 tions on reaching 26 tions were difficult to obtain. no was seriously 27 other because, he 28 ductions. 29 3
1 3. The 2 Ju- 3 4. Tr 4 she 5 6 She acce- 7 delay but at the application for Third Party proceedings was by 1999; and at Third Party proceedings were not pursued as could have been. there is no explanation on the affidavit petition that she submits that the Plaintiff has spent consider- only filed on the 6 igorously as they evidence for the sole time in prison 8 and that 9 she submi- 10 filed becau- 11 them insti- 12 13 As far as 14 concerned, 15 perhaps it 16 concedes 17 back into the Plaintiff was deficient in pushing this matter its that the notice of intention to proceed, (the three the attorneys hoped that this would give the Pl- uctions. the unavailability of the First Defendant and the Mrs. Whittaker-Myles submits that an order of erasure the First Defendant to come back into however, that this Court has no jurisdiction to con- the Island. As far as the Third Party is concerned toward. (deed, see of them) were plaintiff time to give e Third Party in this Court would the Island. She per him to come she submits that 18 this is a m- 19 the Third 20 the Defen- 21 that is the 22
1 This Court 2 Jamaican 3 Defendant 4 is a long 5 reveals that 6 a Guyana 7 Although 8 it has before it, evidence which is conflicting. That has left the jurisdiction. According to the time. Inquiries made by Mr. Jones attorney for at the First Defendant is somewhere in the United settlement and is remaining there until his paper the Immigration Department has agreed on the ba sis of a letter from 9 Mr. Court. 10 Mr. Jones 11 following 12 13 1. The 14 2. Whi 15 be 16 sur 17 3. The in response to Mrs. Whittaker-Myles submitt points: at this Court cannot compel the First Defendant to there the question of liability is a live issue, the First present to give evidence. His statement to the poli fice. tion makes the Defendant must ice simply cannot the Third Party 18 ca 19 4. The 20 be 21 ac 22 23 (not be joined because of his absence. at an attorney-at-law is not permitted to seek su cause a victim of the accident was an infant a dent or indeed was severely injured. cial consideration of the time of the
1 What did 2 3 As for it 4 inexcusable 5 on the p 6 after a lap 7 This was 8 the authorities ordain in these circumstances? The ordinary delay, the Courts have taken a stern able delay, especially in running down actions which personal recollection of witnesses. Even the best sex years and so it may be impossible to obtain emphasized since the modern trend began in 9 the Alps attitude towards ch depend largely of memories fail in our trial. Allen v Alfred 10 11 12 13 14 In that ca 15 "Magna C 16 justice." 17 18 The head 19 of the Alps Limited (1909) FALLER 943 at 20 its end, the fundamental documents in common jurisdictions all reflect this insistence on prompt in hearing issues." See Lord Denning M.R. at page 546 refers to the Marta will have none of it: "To no one will we deny note in the McAlpine case (supra) states the prin tials accurately. ciples 21 20 21 22 23 24 25 26 page 84." held: (1) In the first and third appeals there had be a "excusable delay due to the negligence of plaintiffs' solicitors, and it was not possible to have trial after so long a time; accordingly the action should stand dismissed."
1 In this case 2 but indeed 3 himself. It 4 that subs 5 criminal a 6 there is no question of any negligence of the Plaintiff and delinquence on pursuing the prosecution on p such emphasis was laid on the fact that the victim 10 unconcern 11 Denning r 12 stated by 13 14 15 16 17 18 19 20 aring that the Court does not regard disability as a way is concerned. It must not be thought that MR in the Allen v Sir Alfred McAlpine & Sons v going straight to the heart of the matter. The principle on which we go is clear: when the dos prolonged and inexcusable, and is such as to prove injustice to one side or the other or to both, companay in its discretion dismiss the action straways, leaving the plaintiff to his remedy against own solicitor who has brought him to this plight." a special factor 18 the courts are But as Lord tdt. case (supra) lay do the his 21 In the same ca 22 23 24 25 26 27 28 29 30 case, Diplock LJ treated it in this way. Moreover, where the case is one in which at the disputed facts will have to be ascertained from testimony of witnessed recounting what they recall of events which happened in the memories grow dim, witnesses may die or disappear the chances of the court's being able to find out really happened are progressively reduced as times on. This puts justice to the hazard. If the trial final ral men ast. ar. me is 7
allowed to proceed, this is more likely to operate the prejudice of the plaintiff on whom the one satisfying the court as to what happened general between the events alleged to constitute lies. There may come a time, however, when interval between the events alleged to constitute cause of action and the trial of the action is prolonged that there is a substantial risk that a trial of the issues will be no longer be possible. When this stage has been reached, the public inti- ally should not be allowed to proceed." e to s of rally the so fair ble. rest the ock reiterates the 14 principles wi 15 action for/or 16 principles as 17 18 19 20 21 22 23 24 25 26 27 28 ich should govern the exercise of the court's point of prosecution. He stated, after approving this stated in the "current white book" and I quote: "The power should be exercised only where the (1) that the default has been intentional and contumelous, e.g disobedience perpetual order of the court or conduct amounting an abuse of the process of the court; or (2) (a) there has been inordinate and inexcusable delay that part of the plaintiff or his lawyers, and (b) such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in action on is such as is likely to cause or to be so serious as to prevent justice from being served; or (c) the defendant has been guilty of a over to dismiss an correctness of the court een to a that the it is the have 28 29 30 31 32 In keeping wi 33 to make an 34 alternatives e 35 that a fair trial subjected to the action and would be sufficient ground for allowing in these principles therefore the court should not order which would discontinue an action un- expressed in 2 (b) above is applicable. If there is I would not be possible that would be sufficient ground for allowing
1 the application 2 ground if the 3 prolonged de- 4 5 In my view in 6 no longer in 7 unlikely to be 8 deemed at this time. 9 circumstances 10 Further, the De- 11 Any reason or 12 succeeded in 13 prosecution. 14 15 Dated this 7th 16 17 scene and the fact that defenses had, s, amount to the Defendants not being able to quantify has not been able to give a reasonable ex- given is entirely his fault. I therefore hold that the this application and that the proceedings be stru- Costs to the First and Second Defendants. day of June, 2005 18 19 Judge of this Grand Court