Jashani Dottin-Maxwell and Cathyann Dottin v Queen Elizabeth Hospital Board, Nicole Durham and Geoggrey Lafond

• Jurisdiction: Barbados
• Judge: Chase, J.
• Judgment Date: 04 April 2025
• Neutral Citation: BB 2025 HC 18
• Court: High Court (Barbados)
• Year: 2025
• Docket Number: Civil Suit 2092 of 2011

Jashani Dottin-Maxwell and Cathyann Dottin

and

Queen Elizabeth Hospital Board, Nicole Durham and Geoggrey Lafond

Chase, J.

Civil Suit 2092 of 2011

High Court

Appearances:

Ms. Safiya Moore Attorney-at-Law in association with Shermaine Desnoes Attorneys-at-Law for the Claimants

Ivan Hugh Walters Attorney-at-Law for the Defendants with Ms. Neysa Raja Attorney-at-Law for the decision

DECISION

INTRODUCTION

1 Chase, J. [1] This is an application filed on the 31st day of January 2022 by the Applicants/Defendants seeking Summary Judgment and/or a Strike Out Order against the Respondents/Claimants.

2 The Applicants/Defendants apply for orders pursuant to Parts 15.2(a)(i), (b) and Part 26.3(1), (2) and (3)(a)(b) and (c) of the Supreme Court ( Civil Procedure) Rules, 2008 (the CPR).

3 The grounds of this Application are as follows: Summary Judgment pursuant to Part 15.2(a)(i) and (b).

• i. The Applicants/Defendants believe that on the evidence provided the Respondents/Claimants have no real prospect of succeeding on the claim as it now stands at trial to which the application relates.

• ii. The Respondents/Claimants have failed to comply with Part 8.7(1), (3) in that the Respondents/Claimants have not satisfied the special requirement where the Respondents/Claimants intend to rely on the evidence of a medical practitioner but the Respondents/Claimants have failed to attach any medical report from a medical practitioner based on the personal injuries alleged in the Statement of Case and as a result the Applicants/Defendants could not satisfy their duty pursuant to Rule 10.8(2)(a), (b).

• iii. That the Applicants/Defendants believe that it would be unfair to let this case go to trial with the materials that are being objected to because of the prejudice against the Defendants.

• iv. That the Respondents Claimants have no real prospect of succeeding on the claim or issue at a trial.

• v. That the Applicants/Defendants know of no other reason why the case or issue should await disposal at a trial.

AND/OR IN THE ALTERNATIVE:

4 Strike Out of Statement of Case pursuant to Part 26.3(1), (2), (3)(a), (b) and (c):

• i. That the claim be struck out based on a point of law re the Respondent/Claimant has brought her claim in clinical negligence which she must prove on a balance of probabilities: it is pellucidly clear that a pivotal tipping point in this case is the medico-legal expert testimony which requires the Court to carefully consider and weigh all the points raised and their conclusions, but the Respondents/Claimants have not and apparently cannot provide any Medico-legal Expert Opinion.

• ii. That it has been approximately five years since the filing of the claim on October 20, 2017 and still no such Medico-legal Expert Opinion is forthcoming from the Respondents/Claimants and they have failed to prosecute their case with dispatch or industry.

• iii. That the Applicants/Defendants believe that it should not have to suffer and abide this inordinate delay in getting the case to trial and that it may prejudice the Applicants/Defendants in its defence.

• iv. The Applicants/Defendants do not seek to exclude relevant evidence that is logically probative and should be so allowed to exclude the Statement of Case for the lack of the same.

• v. That the Statement of Case be struck out because it discloses no reasonable ground for bringing the claim and in any event is unsupported by cogent evidence.

• vi. That the impugn Statement of Case constitutes an abuse of the process of the Court as set out at Part 26.3(3)(a)(b) of the Supreme Court ( Civil Procedure) Rules, 2008.

• vii. There is no alternative which would enable the case to be dealt with justly without taking the draconian step of striking out the Statement of Case.

• viii. That it is in the interest of fairness that the order sought herein be granted by the Honourable Court in the interests of satisfying the requirements of the Overriding Objective of Part 1.1 and Part 25.1 of the Civil Procedure Rules 2008 to conserve judicial time, save costs and to resolve the matter justly between the Parties.

• ix. That the Honourable Court is invited to take the draconian step and exercise this nuclear measure to strike out the Statement of Case because this is really necessary in order to deal with the case fairly and justly consistent with the Overriding Objective.

BACKGROUND

5 On the 20th day of December 2011, the Respondents/Claimants filed a Claim Form and Statement of Claim by which they claimed damages from the Applicants/Defendants for personal injuries and loss in respect of the Applicants/Defendants' negligence during the delivery of the First Respondent/Claimant as the second of twins born to the Second Claimant on the 26th day of December 2008.

6 The Respondents/Claimants filed an Amended Claim Form (and an Amended Statement of Claim) on the 29th day of November 2012 which included hospital notes from the First Applicant/ Defendant and a physiotherapy report from Ms. Yvonne Ward, Physiotherapist of the Children's Development Centre.

7 The Respondents/Claimants were unable to locate the Second Defendant for service and therefore filed an Application on the 14th day of December 2012, for an order that service of the Claim Form and Statement of Claim, filed on the 20th day of December 2011 and the Amended Claim Form and Amended Statement of Claim filed on the 29th day of November 2012, on the Second Applicant Defendant, be effected by substituted service in the Nation and Advocate newspapers.

8 On the 17th day of December 2012, the First Applicant/Defendant by way of its (then) Attorney-at-Law, Mr. Larry Smith Q.C. filed an Acknowledgment of Service of the Amended Claim Form.

9 The Applicants/Defendants did not file their Defence within the prescribed time and consequently, on the 25th day of January 2013 the Respondents/Claimants served a notice on Mr. Larry Smith Q.C. requesting that the Applicants/Defendants remedy their Default by filing their Defence within 14 days.

10 The Applicants/Defendants did not file their Defence within 14 days from the date of service of the notice. As a result, the Respondents/Claimants filed a Request for Default Judgment against the First and Third Applicants/Defendants on the 19th day of February 2013.

11 On the 4th day of February 2013, the Honourable Madam Justice Jacqueline Cornelius Judge of the High Court, in Chambers granted an order concerning the Respondents/Claimants' Application to serve the Second Applicant/Defendant the Claim Form and Statement of Claim filed on the 20' day of December, 2011 and the Amended Claim Form and Amended Statement of Claim filed on the 29th day of November 2012 by advertisement in the Advocate and the Nation newspapers.

12 On the 19th day of March 2013, Mr. Larry Smith Q.C., the First Applicant/Defendant's (then) Attorney-at-Law, formally accepted liability by letter and invited the Respondents/Claimants to submit their quantified claims.

13 As a result of the formal admission of the First Applicant/Defendant, the Claimants did not post the advertisement for service of the Claim on the Second Applicant/Defendant and instead began preparation of their quantified claims, including seeking the services of medical professionals.

14 On the 10th day of March 2016 and on the 4th day of May 2016 the Respondents/ Claimants then Attorney-at-Law Miriam White wrote to Larry Smith Q.C. advising him of the costs for the various medical assessments and reports required for the quantified claims, and requested an interim payment in light of the Applicants/Defendants' formal admission of liability.

15 On the 24th day of November 2016, the First Defendant's Legal Officer Mr. Ivan Hugh Walters wrote the Claimants' Attorney-at-Law formally informing her that the Applicants/Defendants were not accepting any liability whatsoever for her clients' alleged injuries.

16 On the 12th day of October 2018, the Applicants/Defendants filed a Notice of Change of Attorney-at-Law confirming that Ivan Hugh Walters, Attorney-at-Law had been appointed to act on their behalf in place of Larry Smith Q.C.

17 On the 17th day of June 2019, a Defence was filed by the three Applicants/Defendants jointly and severally.

18 On the 22 ^nd day of November 2019, the Respondents/Claimants changed their Attorney-at-Law and filed a Notice of Change of Attorney confirming that Sofiya A. Moore Attorney-at-law had been appointed to act on behalf of the First and Second Respondents/Claimants in place of Miriam D White, Attorney-at-Law.

APPLICANTS/DEFENDANT'S SUBMISSIONS FILED ON JANUARY 31, 2022

SUBMISSIONS ON APPLICATION FOR SUMMARY JUDGMENT

19 The Applicants/Defendants submitted that the Respondents/Claimants and their legal adviser(s) were well aware and had knowledge of the requirements of sub-rules 8.7(1), (3) and with impunity have deliberately and/or willfully flouted and/or ignored and/or neglected to comply with the terms of sub-rule 20.1(1) even although the Respondents/Claimants have been before the Court at least on three/four previous occasions and as such, the Court should not exercise its discretion in their favour.

20 The Applicants/Defendants contended that pursuant to sub-rule 8.5, the Respondents/Claimants are bound by and must rely solely on the pleadings in their Claim Form and in their Statement of Case. As these pleadings now stand, they are deficient, and that it follows then, that the Respondents/Claimants' Claim must be excluded and jettisoned.

21 The Applicants/Defendants submitted that causation is a particularly important and difficult issue to establish in Clinical Negligence, but it is determinative of the claim which cannot be achieved without reliance on Medico-legal evidence in the form of a medical report(s) to assist the Court in its determination of liability, causation and damages. This is pertinently applicable to the...