Atkinson v Corbin and Armstrong
| Jurisdiction | Barbados |
| Judge | Reifer, J. |
| Judgment Date | 20 October 2015 |
| Neutral Citation | BB 2015 HC 35 |
| Docket Number | 772 of 2011 |
| Court | High Court (Barbados) |
| Date | 20 October 2015 |
High Court
Reifer, J.
772 of 2011
Ms. Kim Sherry-Ann Marshall Attorney-at-Law for the claimant
Ms. Liesel N. Weekes Attorney-at-Law for the first and second defendants
Civil practice and procedure - Whether the claimant could file a new action without it being an abuse of process of the Court after failing to attend the summons to dismiss and appeal the order of the judge — Whether the court should have exercised its discretion under section 52 of the Limitation of Actions Act in favour of the claimant to exclude the time limit prescribed by section 20 of the Limitation of Actions Act or enlarge the limitation period.
This application sports an interesting and challenging history which raises issues of re-litigation (in its broad sense) and the exercise of a Court's discretion to exclude or enlarge the limitation period prescribed by section 20 of the Limitation of Actions Act, which is a 3 year period.
It commenced in October 2006 when the claimant (plaintiff) herein filed a Writ of Summons given suit no. 1904 of 2006 under the ‘old’ Rules of the Supreme Court 1982 (hereinafter referred to as RSC), in which he claimed damages against the first defendant herein Oliver Corbin for personal injuries, loss and damage consequent on a motor vehicle collision which occurred on September 2nd 2005. Oliver Corbin is the owner but not the driver of the vehicle at the relevant time.
This first suit was commenced 13 months after the accident and well within the 3 year limitation period.
Thereafter the plaintiff (claimant herein) filed no Statement of Claim as required under the RSC. It is not unreasonable to conclude that the plaintiff's counsel filed this Writ to secure his client's interests, believing reasonably or unreasonably (at that time) that no further action was necessary.
Certainly it was evident by mid 2009 that further action was necessary, because three years later, on September 24th 2009, the defendant (first defendant herein) filed a Summons to Dismiss pursuant to Order 19 Rule 1 of the RSC seeking dismissal of the claim consequent on the failure to file and serve the Statement of Claim in accordance with the time requirements of the RSC. This application was not a ‘bolt from the blue’. It was preceded by several pieces of correspondence from the defendant's counsel.
This application was heard by Worrell, J. who made an ‘Unless’ (or peremptory) Order on December 15th 2009 (entered April 2010), to wit: “That unless the plaintiff files and serves its Statement of Claim by 31 st December 2009 the action stands dismissed with costs to the defendant.”
No provision was made in this Order for its service.
The copy of the Order appended to the Affidavit in Support of Stephen Atkinson indicates that no appearance was entered by or on behalf of the plaintiff to this application. The unchallenged Affidavit evidence indicates that the plaintiff's attorney on record at the time was served with notice of the Summons to Dismiss and prior to that a Notice of Intention to Proceed.
The Affidavit evidence makes clear (even if it is not clearly shown that the order was formally served) that a copy was faxed to the plaintiff's counsel on December 20th 2009 and the final Order under cover of letter dated April 30th 2010.
These facts give rise to several questions: should not the plaintiff have appealed this Order or applied to have it set aside or the time extended instead of filing a new action? Do these circumstances give rise to an inference that this new action was an attempt to avoid an Order of the Court? Has there been an abuse of process?
No Statement of Claim having been filed within the ordered time, the plaintiff's claim was struck out.
The defendant's unwavering position was made clear at the earliest by April 30th 2010, but undeniably by letter dated July 28th 2010 in response to a ‘partially’ quantified claim submitted under cover of letter dated July 5th 2010. Their position remained consistent when responding to counsel Ms. Marshall in December 2010 and January 2011 and to date.
On April 26th 2011 the plaintiff, now claimant, filed a new action CV 772 of 2011 the only difference between this action and the action struck out is that there are now two defendants, namely, Oliver Corbin as the first defendant and Rodney Armstrong, the driver of the vehicle as the second defendant. This application is filed under the ‘new’ Civil Procedure Rules (CPR); it consists of claim form, statement of claim, notice of legal proceedings and statement of special and general damages. The claim is a substantial one being in the amount of $264,933.00 (an amount which clearly took the defendants by surprise and may be the real reason the first defendant's insurer has taken a hard line in this matter). The attached medical reports reveal that the claimant sustained serious injuries, some of them life-threatening and limb threatening at the time. The claimant apparently spent several months in hospital, was unable to work for approximately one year and has allegedly continued to endure the sequellae consequent on the injuries received.
This new claim was filed approximately 16 months after the dismissal of the first action and some 5 years and 7 months after the cause of action arose.
The defendants acknowledged and defended the Claim denying liability and pleading that the claim was statute barred.
By Case Management Order of October 3rd 2011, the Master of the High Court ordered that “The claimant be at liberty to file an application under section 52 of the Limitation Act, on or before October 31St 2011”.
A Notice of Application was filed by the claimant on November 25th 2011 (notably outside the time requirements of the Order) without further application to the Court. This point was however not taken by the defendants' attorney-at-law.). The claimant therein applied to the Court “to disapply section 20 of the Limitation Act, Cap 231 of the Laws of Barbados to the present action and thereby permit him to proceed with his claim against the defendants.”
The grounds of the Application are as follows:–
“1. The application of section 20 of the Limitation Act will unnecessarily defeat the claimant's rightful claim for compensation against the first defendant's insurers;
2. The reasons behind the claimant's delay were not due to any failure, unreasonable or otherwise, to appreciate the significance of his injuries, or to make use of information available to him to make further enquiries to ascertain what transpired on the date of the occurrence or, to take medical or legal advice.
3. The continuance of the claimant's present claim cannot, in any way, prejudice the defendants in the conduct of the present claim; and
4. The defendants admitted liability shortly after 2 September 2005 when the claimant sustained his injuries and subsequently, through their insurers, encouraged the claimant to abandon his investigations into the issue of liability and to amass the requisite medical evidence to assist him in the determination of the quantum of damages.”
The claimant filed an Affidavit in Support of Application of even date. This Affidavit outlined the circumstances of the accident in some detail and the course of action taken by his then attorney Mr. Bolden from the time he was retained in September 2005 through to 2010. There are noticeable gaps in the chronology of events which are unexplained by the said Affidavit. In December 2010 counsel Ms. Marshall indicated her involvement in the matter in association with the plaintiff's attorney Mr. Bolden, and it appears that thereafter she has had conduct of the matter.
The following facts are noted for their absence:–
1. At no time is there an unequivocal acceptance of liability by the defendants' insurers and no documentary evidence supporting the plaintiff's assertion that the defendants admitted liability shortly after September 2nd 2005. There is a request for the claimant to submit to the examination of their medical representative and several invitations over time to submit a quantified claim (see para. 29 of the Stephen Atkinson Affidavit) which on their own do not constitute an unequivocal acceptance of liability. At para 23 of the Stephen Atkinson Affidavit he deposes: “I am informed and verily believe that insofar as the issue of liability was concerned Mr. Bolden had requested a Road Traffic Accident Report on 18 October 2006, as the insurer initially appeared to him to have had reservations with the issue of liability.” There is a further reference to this Report in an exhibited letter from counsel Mr. Bolden to the plaintiff dated April 13th 2007 indicating that the Report was available, but no evidence of its receipt. Counsel for the defendants notes at paragraph 18 of her Affidavit that her requests for the submission of a quantified claim were on a ‘Without Prejudice’ basis, (other exhibited correspondence between the parties indicates that their course of dealings was on a “Without Prejudice” basis although it is clear from the letters dated 7th May and 2nd July 2009 that the first defendant's insurers were minded to settle the claim at that time). The defence filed by the defendants to this action indicates that contributory negligence was intended to play a large part in their defence of this claim. This Court cannot accept the submission of counsel for the plaintiff/claimant that the history of the case indicates that liability was already settled.
2. Paragraphs 38, 39 and 40 suggest that the plaintiff/ claimant was aware from September 2009 (actual service was effected on October 5th 2009 of the filed Summons to Dismiss: See Affidavit of Liesel Weekes at para. 29) of the Summons to...
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