Shaniya Cumberbatch-Alleyne and Grace-Ann Cumberbatch v Queen Elizabeth Hospital Board et Al

• Jurisdiction: Barbados
• Judge: Chase, J.
• Judgment Date: 04 April 2025
• Neutral Citation: BB 2025 HC 17
• Court: High Court (Barbados)
• Year: 2025
• Docket Number: Claim CV1574 of 2017

Shaniya Cumberbatch-Alleyne and Grace-Ann Cumberbatch

and

Queen Elizabeth Hospital Board Et Al

Chase, J.

Claim CV1574 of 2017

High Court

Appearances:

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

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

DECISION

INTRODUCTION

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).

And /or in the Alternative:

• 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('V, (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.

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.

  • (i) 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 October 2017, the Respondents/Claimants filed a Claim Form and Statement of Claim by which they claimed damages from the Applicants/Defendants for personal injury and loss in respect of the Applicants/Defendants' negligence during the delivery of the First Claimant on the 22nd day of October 2014.

6 On the 17th day of October 2018, the Respondents/Claimants filed a Notice of Application for Substituted Service of the Claim Form and Statement of Claim to have service on the Second, Third, Fourth and Fifth Applicants/Defendants effected by substituted service vis newspaper advertisements in the Nation and Advocate Newspapers.

7 On the 17th day of October 2018, an Acknowledgement of Service of the Claim Form and Statement of Claim was filed on behalf of all the Applicants/Defendants.

8 On the 4th day of December 2018, the Respondents/Claimants filed an Affidavit of Service of the Claim Form and Statement of Claim confirming service on the 11th day of October 2018.

9 On the 11th day December 2018, the Applicants/Defendants filed a Notice of Extension of Time for Filing the Defence.

10 On the 30th day of May 2019, the Applicants/Defendants filed their Defence.

11 The Applicants/Defendants are seeking, by way of the Application filed on the 31st day of January 2022, an order that the Court grants Summary Judgment against the Respondents/Claimants and/or strikes out the Respondents/Claimants' Statement of Case.

APPLICANTS/DEFENDANTS SUBMISSIONS FILED ON JANUARY 31, 2022

APPLICATION FOR SUMMARY JUDGMENT

12 The Applicants/Defendants submitted that the Respondents/Claimants make no definitive allegation of breach of duty or causation which is supported by a medical report, simply bald allegations of a serious nature, that is, that the First Respondent/Claimant suffered neurological damage as a result of the negligence of the agents and/or servants of the First Defendant and without supporting the same with any medico-legal evidence in the form of a medical report(s) from a specialist practitioner in Obstetrics/Gynecology and/or a Pediatrician and/or a Pediatrician Neurologist.

13 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.

14 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 argued that they are deficient, and that it follows then, that the Respondents/Claimants' Claim must be excluded and jettisoned.

15 The Applicants/Defendants averred 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 Respondents/Claimants' case.

16 The Applicants/Defendants also submitted that the Court should take a pedantic, punctilios approach to the Rules which would in the context of this case be appropriate and proportionate to instill obedience in civil litigation which the CPR 2008 is intended to instill.

17 It was further submitted by the Applicants/Defendants that it is in the interest of fairness and justice and the furtherance of the Overriding Objective of Part 1.1 and Part 25.1 of the Civil Procedure Rules, 2008 that this course of granting Summary Judgment is righteous.

APPLICANTS/DEFENDANTS' WRITTEN SUBMISSIONS ON APPLICATION TO STRIKE OUT

18 The Applicants/Defendants submitted that for the foregoing egregious breaches of the Rules alone, the said Claim should be struck out. A failure to strike the Claim would lead to a mockery of the discipline of civil litigation the CPR 2008 intended to instill and serve to return to the laissez faire status quo ante the CPR 2008.

19 The Applicants/Defendants submitted that it is of paramount importance to note that the Respondents/Claimants and their legal adviser(s) knew from the documents served exactly what was being claimed:

• (i.) claim for Medical Malpractice in Clinical Negligence which required Medico-legal evidence in the form of a medical report(s);

• (ii.) only Medico-legal evidence can be relied upon to support the claim; and

• (iii.) that sub-rule 8. 7(1), (3) of the CPR 2008) applied to the claim.

20 The Applicants/Defendants contended that, the foregoing being the case, it behooves the Applicants/Defendants to point out the procedural errors to the Court and invoke the remedies that are available to the Court vis-a-vis to allow them to be amended and/or to request that the Court use its nuclear weapon and strike out the claim and/or to request summary judgment and claim the costs for having done so.

21 The Applicants/Defendants also submitted that without prejudice to the foregoing contentions, it is alternatively submitted that the granting of any relief to the Respondents/Claimants is likely to cause significant hardship to and substantially prejudice the...