Smith v Gibson and Attorney General
| Jurisdiction | Barbados |
| Judge | Beckles, J. |
| Judgment Date | 07 April 2017 |
| Neutral Citation | BB 2017 HC 20 |
| Court | High Court (Barbados) |
| Docket Number | CV 667 of 2015 |
| Date | 07 April 2017 |
High Court
Beckles, J.
CV 667 of 2015
Mr. Edmund R. King, Q.C. in association with Mr. Hal Gollop, Q.C., Attorneys-at-law on behalf of the claimant
Ms. Donna Brathwaite, Q.C., in association with Mr. Jared Richards, Attorney-at-law for the First and Second defendants
Civil practice and procedure - Application by claimant for an order that summary judgment be entered against the first defendant pursuant to Part 15 of the Civil Procedure Rules, 2008 — Whether defendant had a real prospect of successfully defending the claim — Whether there was no other reason why the case should have been disposed of at a trial.
The history of these proceedings is as follows: the matter commenced by way of Fixed Date Claim Form on an application dated May 14, 2015 where the claimant sought a declaration against the First defendant who allegedly refused to grant him an audience and by extension the right to represent his client Branlee Consulting Services Inc. in the mater CV0099 of 2015 Clico International Life Insurance Ltd v Leroy Parris, Branlee Consulting Services Inc. and the Estate of David Thompson.
The application was accompanied by the affidavit of equal date.
On May 21, 2015, the defendants filed an acknowledgment of service of the Fixed Date Claim Form filed on May 14, 2015 which indicated that they received the claimant's Claim Form No. 667 of 2015 on May 15, 2015.
On September 14, 2015, the claimant filed an affidavit of service indicating that Harcourt Gill, writ server did on May 29, 2015 serve the First defendant with the Fixed Date Claim Form, the Acknowledgment of Service and supporting affidavit of the matter commenced on May 14, 2015.
The defendants then applied for an order pursuant to Rule 26.3 of the CPR that the claimant's statement of case filed on May 14, 2015 namely the Fixed Date Claim Form and affidavit of Vernon Smith be struck out and costs be awarded to the defendants in any event — this was done on September 15, 2015.
On January 12, 2016 the claimant applied for an order that summary judgment be entered against the First defendant. The claimant's Contention
Counsel for the claimant contends that as required by Part 10 Rule 10.3(1) of the CPR, the First defendant failed, neglected and/or refused to file and serve a Defence within twenty-eight days after being served with the claim form and affidavit filed on May 14, 2015.
Counsel further contends that the First defendant refused to attend the first hearing of the claim which was scheduled for September 16, 2015, but instead on September 15, 2015, the attorney-at-law for the First defendant filed and served on the claimant an application on behalf of the First defendant to strike out the claimant's substantive application.
Counsel also pointed out that the First defendant at the date of the said application had not filed an acknowledgement of service.
Thus, Counsel declared that the application to have the claimant's substantive application struck out is null and void alleging that since the First defendant had not filed an acknowledgment of service, the First defendant has no standing in the matter relying on Rules 9 and 10 of the CPR to support this contention.
He further contends that the application should be struck out since it does not contain a certificate of truth in accordance with Part 3.12 of the CPR and also that the affidavit filed by the attorney-at-law for the First defendant does not contain a certificate of truth as required by Rule 3.12 and should be struck out pursuant to Rule 3.13.
The claimant also alleges that since January 12, 2016 an application for summary judgment was filed and served on the First defendant. However as to date the First defendant has not filed a Defence and neither has he attended court at any of the hearings of the action.
It was also pointed out that the First defendant has not filed written evidence nor served copies of such on every other party to the application as required by Rule 15.5 (1) and (2) of the CPR.
In response to the above arguments, counsel for the First defendant, Donna Brathwaite, QC deposed that both the application to have the claimant's substantive application struck out and affidavit in support contained a certificate of truth.
She also highlighted at paragraph 8 of her affidavit that on September 16, 2015 appearances were entered on behalf of the defendants and an objection was taken to an appearance being entered on behalf of the First defendant. She pointed out that she was informed for the first time by counsel for the claimant that an affidavit of service had been filed on September 14, 2015 which stated that the First defendant was served on May 29, 2015.
Counsel deposed that an acknowledgment of service was filed on behalf of the defendant on September 16, 2015 and notice was given by letter dated September 17, 2015 pursuant to Rule 9 of the CPR that an acknowledgment of service was filed on the First defendant's behalf and the claimant was also supplied with a copy of the acknowledgment of service.
Counsel submitted that pursuant to Rule 26.4 of the CPR, the court has a general power to rectify matters where there has been a procedural error. She further contends that the rule applies in relation to a matter where no order was sought or if sought had not been made under Rule 26.3 striking out a statement of case or part of a statement of case. Additionally, she submitted that in this case, orders have not been made under a Rule 26.3 application.
It was also submitted that the court must be mindful of the overriding objective of the CPR which provides that dealing with cases justly includes ensuring that they are dealt with expeditiously and fairly. She also pointed out that Rule 25.1 provides that the court must further the overriding objective by actively managing cases.
Counsel submitted that the claimant was aware from as early as May 2015 that the defendants intended to defend the Fixed Date Claim Form, in that acknowledgment of service was filed and notice was given pursuance to Rule 9; further, at the first hearing, appearances were entered on the defendants' behalf
She also pointed out that the claimant would not be prejudiced in that it cannot be said that the claimant was unaware that the First defendant intended to defend the Fixed Date Claim Form dated 14 May, 2015.
Essentially, Counsel submitted that the procedural defects are not fatal to the proceedings and the court should exercise its discretion under Rule 26.4 and bear Rule 1 and 25 in so doing and allow the hearing of the defendants application to commence.
Whether the court should in the circumstances make an order for summary judgment.
Summary judgment occurs where the court determines a particular issue, or issues between litigants without a trial.
The power of a court to make a summary order is contained in Part 15 of the Civil Procedure Rules 2008 (CPR). CPR 15.2 provides the grounds for summary judgment:
“The court may give summary judgment against a party on the whole of a claim or on a particular issue if
(a) It considers that
(i) the claimant has no real prospect of succeeding on the claim or issue; or
(ii) the defendant has no real prospect of successfully defending the claim or issue, and
(b) there is no other reason why the case or issue should be disposed of at a trial.”
The applicable test is a two-pronged test which firstly requires consideration of whether the party against whom the court is urged to enter summary judgement has a real prospect of success and thereafter, a determination of whether there is any other reasoning why the case or issue should be disposed of at trial.
To quote Lord Woolf MR in Swain v. Hillman [2001] All E.R. 91 CA:
“It is important that a judge in appropriate cases should make use of the powers contained in Pt 24 (our Part 15). In doing so he or she gives effect to the overriding objectives contained in Pt 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally that it is...
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