Darryl'S Air Conditioning & Refrigeration Contractors Barbados Ltd v Sandy Lane Hotel Company Ltd

• Jurisdiction: Barbados
• Judge: MARGARET A. REIFER
• Judgment Date: 03 January 2018
• Neutral Citation: BB 2018 HC 24
• Court: High Court (Barbados)
• Docket Number: No. 201 of 2011
• Date: 03 January 2018

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Before

the Honourable Madam Justice Margaret A. Reifer, Judge of the High Court

No. 201 of 2011

Between:

Darryl'S Air Conditioning & Refrigeration Contractors Barbados Limited

Claimant

and

Sandy Lane Hotel Co. Ltd

Defendant

Appearances:

Ms. Cicely Chase Q. C. and Ms. Shari-Ann Walker Attorneys-at-Law for the Claimant

Mr. Satcha Kissoon Attorney-at-Law for the Defendant

Civil practice and procedure — Subsubject: Striking out claim for failing to file witness statements on time — Factors to consider in exercise of court's discretion to strike out claim — Extension of time to file witness statements — Relief from sanctions — Security for costs.

DECISION

Introduction

1 The substantive application in this matter was filed by the way of Claim Form on February 15 ^th 2011. It is a claim for wrongful repudiation/termination of a contract, the full details of which are set out in the Statement of Claim filed together with the Claim Form. The amount being claimed for loss and damage and interest thereon, consequent on the alleged unlawful repudiation/termination on that date is, $2,153,004.21.

2 Essentially, the subject contract was one for the sale and installation of air conditioning, refrigeration and related systems equipment, with work commencing in the first quarter of 2008.

3 The Defendant terminated the contract in December 2008 and refused to allow the Claimant to proceed further, or in any way access the site to execute any further works.

4 The Defendant's Amended Defence and Counterclaim allege defective work using inferior material and inferior staff, delay, and generally, the Claimant's failure to proceed with the works in a good and workmanlike manner. The Defendant counterclaims for loss and damage incurred in remedial works, third party costs of completion of the said works, and interest on unspecified damages.

5 The Defendant's stance is challenged in a Reply to Defence and Counterclaim.

The Subject Applications

6 There are two applications presently before this Court, which must perforce be heard at the same time.

7 First in time is that of the Defendant, filed August 9 ^th 2016, together with an Affidavit in Support of even date. This is the ‘Striking out’ Application in which the Defendant seeks the following relief:

• “i. To strike out the Claim Form and the Statement of Claim pursuant to the Supreme Court ( Civil Procedure) Rules 2008 and/or the inherent jurisdiction of the Court;

• ii. Judgment entered for the Defendant;

• iii. Alternatively, that the Claimant be debarred from relying on any witness statements and calling witnesses at trial of this action;

• iv. Alternatively, that the Claimant be required to provide security into court as a condition for being allowed to continue with the proceedings;

• v. Costs to the Defendant to be assessed”.

8 The grounds of the application include:

• i. The Claimant failed, refused and/neglected to comply with orders of the court for the filing of witness statements, statements of agreed facts and issues and listing questionnaire;

• ii. Protracted and unreasonable delay interfering with the Defendant's right to a fair trial as the delay now affects the ability of the parties to recollect and the availability of parties to attend;

• iii. The Court has the jurisdiction to grant the orders sought by the Defendant.

9 The second is that of the Claimant filed November 1 ^st 2016 together with Affidavit in support of even date. The Claimant seeks the following relief:

• i. That pursuant to Part 29.11 of the Supreme Court ( Civil Procedure) Rules 2008 that the Claimant be allowed to file all witness statements on which it intends to rely at trial and/or alternatively;

• ii. That pursuant to Part 27.8 (4) (a) of the Supreme Court ( Civil Procedure) Rules 2008, that the Claimant be granted an extension of time to file all witness statements in relation to its case which it intends or may rely on at trial;

• iii. Under Part 26.4 of the Civil Procedure Rule 2008, the Claimant be granted relief from sanctions in failing to comply with order made at Case Management Conference on February 1 ^st, 2013.

10 The Claimant's grounds of application are:

• a. That seeking to file witness statements outside of the date ordered by the Court at case management would not prejudice the Defendant in its right to a fair trial;

• b. The Court has the power to grant permission to the Claimant to file its witness statements outside of the date ordered by the Court if the Court considers it just in all circumstances to do so;

• c. It is just in all the circumstances for the Court to grant said permission for the following reasons:

  • i. By reason of the termination of the contract between parties, the conduct of the Defendant in so doing led to the Claimant's impecuniosity which prevented it from continuing with its claim but it is now in a position to do so;

  • ii. The Claimant is prepared to comply with all court orders and directions and will comply with any future orders, Practice Directions, and direction of the court.

• d. Based on Rule 27.8 (4) (b) of the CPR, the Claimant can apply for relief from sanctions for failure to comply with orders made by the Court at case management;

• e. That the Claimant has a good and arguable case and there is a good prospect of success in this action.

• f. the Defendant has paid no monies to the Claimant save and except for initial set up monies in spite of work done on the project.

11 Several sets of documents were filed subsequent to and pursuant to the above Application, and by agreement of the parties it was established that the below-listed documents are relevant to the two Applications heard together:

• i. Written Submissions of the Claimant and Defendant both filed on January 18 ^th 2017;

• ii. Affidavit in Response of Darryl Hannibal of January 20 ^th 2017;

• iii. Affidavit in Response (to the above) by Jo-Ann Roett filed January 27 ^th 2017;

• iv. Document titled Submission in Response filed by counsel for the Defendant on January 30 ^th 2017;

• v. Affidavit of Darryl Hannibal of January 31 ^st 2017.

The Parties Submissions

The Defendant's Submissions

12 The Defendant made ‘delay’ the main focus of its submissions, incorporating the time of termination of the contract (2008) through to the resumption of proceedings in 2016, submitting that there were no active steps undertaken by the Claimant to prosecute its claim until the Defendant filed its application to ‘strike out’ in August 2016. Counsel argues that the Claimant took action three months later by filing its application for relief from sanctions on November 1 ^st 2016 under a Certificate of Urgency. The Defendant maintains that no affidavit has been filed in response to the Defendant's application.

13 The critical period of inactivity was 2013 to 2016 and of this the Defendant states, that it drew to the Claimant's attention its failure to comply, firstly in November 2013, and on subsequent (unspecified) occasions thereafter, but the Claimant nonetheless neglected to prosecute the claim. Counsel submitted further, that the argument that the parties were in negotiations does not dispel the Claimant's breach as the requirement to file arose before negotiations commenced.

14 On the issue of its own compliance, the Defendant stated: even though its witnesses were all out of the jurisdiction it was still able to file its witness statements and summaries on the 31 ^st May and 3 ^rd June 2013 respectively, more than three and a half years ago.

15 The Defendant argues that the Claimant's delay has been gross and inordinate; that delay has caused the Defendant prejudice in that time will affect the recollection of the witnesses and their ability to be present for the trial; and that a fair trial is no longer possible.

16 Counsel submits that the presence of an ‘unless order’ is unnecessary before the granting of an order to strike. In other words, there is no need to grant an ‘unless order’ before the Court takes the step to ‘strike out’ part or all of a statement of case, where there has been failure to comply with an order given by the Court in the proceedings.

17 Counsel submitted that at the very least, if the Claimant is allowed to file witness statements he must be ordered to lodge security for the continued conduct of the action, especially in light of Darryl Hannibal admitting in his affidavit that the Claimant Company is impecunious; to ignore this fact would be to expose the Defendant to significant legal fees which would not be recoverable if the Claimant fails in its claim.”

18 Counsel sought to disregard the cases cited by the Claimant as “pre-CPR regime and dated”. Counsel strongly recommended the application of more recent regional and United Kingdom authorities, inter alia, as follows: Amar Holdings Limited v Development Finance Limited TT 2008 HC 52; Baksh v Doc's Homes Limited TT 2011 HC 135; Attorney General of Trinidad and Tobago v Universal Projects Ltd Civ Appeal No. 104 of 2009; Landmark Investments and Another v Dome Company Cleaning Services Limited [2015] EWHC 1168 (QB); Owners and/or Bailees of the Panamax Star v Owners of the Auk [2013] EWHC 4076 (Admiralty); Mealey Horgan plc v Horgan (1999) The Time 6 July 1999; Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537.

19 Counsel for the Defendant also submitted that “its costs of its application of August 9 ^th 2016 and for the Claimant's application of November 1 ^st 2016 should be assessed and paid as a condition of the litigation proceeding at all.”

The Claimant's Submission

20 The Claimant's Written Submissions filed January 18 ^th 2017 and further oral submissions are extensive. Only the salient aspects of the same will be summarized.

21 On the issue of ‘striking out’, the Claimant relied on the principles extracted from the case law where...