Steve Straughn v David Corbin
| Jurisdiction | Barbados |
| Judge | Alleyne, J. |
| Judgment Date | 20 June 2019 |
| Neutral Citation | BB 2019 HC 15 |
| Date | 20 June 2019 |
| Docket Number | Suit No: No. CV 1563 of 2014 |
| Court | High Court (Barbados) |
High Court
Judge(s): Alleyne, J.
Suit No: No. CV 1563 of 2014
The Claimant in person.
Mr. Jared Richards in association with Ms. Gayl Scott for the Defendant.
Civil practice and procedure - Pleadings — Defence — Application to amend defence — Whether application was out of time — Application for striking out claimant's application — Abuse of process.
This is a defamation claim. Before me are two applications which were filed during the course of the proceedings. First, is an application filed by the defendant on 21 September 2016. He seeks leave pursuant to Rule 20.1(2) of the Supreme Court ( Civil Procedure) Rules, 2008 (“CPR”) to amend his defence. He wishes to substitute the defence of absolute privilege with that of qualified privilege.
On 26 October 2016, the claimant filed an application seeking dismissal of the defendant's application. His attack against it is three-pronged. He claims that it (i) is “out of time”; (ii) constitutes “an abuse of the process of the Court”; and (iii) discloses “no reasonable ground for amending the Defendant's Statement of Case”.
I heard the applications together. The claimant appeared in person and Mr. Jared Richards in association with Ms. Gayl Scott appeared for the defendant. The latter's application was supported by an affidavit filed on 21 September 2016. The claimant filed an affidavit on 26 October 2016. I had the benefit of written and oral submissions from the parties. Having considered the matter, I have determined to refuse the defendant's application and to allow the third ground of the claimant's. I set out my reasons for this decision below.
Some background is required to provide context. The defamation proceedings arise out of a letter which was written by the defendant to the Solicitor General on 31 October 2011. It appears that it was copied to the Attorney General, the Deputy Solicitor General and an Acting Deputy Solicitor General. The claimant complains that some of its contents defamed him.
It is common ground that at the time of the communication, the parties worked together in the Solicitor General's Chambers, the defendant as a Clerical Officer and the claimant as a Crown Counsel. The defendant avers that two police officers came to see him at work in response to a complaint made to them by the claimant. He asserts that the letter was written at the behest of the Solicitor General who requested him to explain why police officers had visited the Chambers.
The claimant filed his claim form on 17 October 2014. The defendant filed a defence on 3 December 2014. In it, he averred that the letter was published on an occasion of qualified privilege. Additionally, he denied that the words complained of were defamatory of the claimant; that they bear any of the meanings asserted by the claimant; or that they were calculated to disparage him in his employment as a Crown Counsel or as an Attorney-at-Law.
In the grounds set out on his application, the defendant asserts that when he filed his defence, he was represented by a different Attorney-at-Law and that the amendment should be allowed in the interest of justice. The record reflects that he was represented by Mr. Derrick Oderson when the defence was filed. He is now represented by the Solicitor General's Chambers.
At paragraph 5 of the grounds, the defendant sets out the basis on which he considers the defence of qualified privilege to be relevant. It reads:
The Defendant was acting in the course of his employment when he presented the report dated the 31st day of October 2016 to the head of Chambers, the Solicitor General and in the circumstances the defence of absolute privilege should apply in this instance.
Five issues potentially arise. If either of those identified at (i) to (iii) is resolved in the claimant's favour, those at (iv) and (v) will fall away. They are:
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i. is the defendant's application out of time?
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ii. is the claimant's application an abuse of process; and, if so, should it be struck out on that account?
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iii. should the claimant's application be dismissed on the ground that it discloses no reasonable ground for amending the defence?
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iv. subject to the outcome of 5 below, ought the defendant to be granted leave?
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v. does the prospective defence have a reasonable prospect of success?
Three sets of procedural rules feature in the discussion that follows. The first is contained in CPR 20.1 which regulates amendments to statements of case; the second in CPR I which is concerned with the overriding objective of the CPR; and the third in CPR 10 which deals with defences.
CPR 20.1(1) provides that a statement of case may be amended at any time “prior to a case management conference and the filing of a defence without the court's permission”. CPR 20.1(2) reads:
The court may give permission to amend a statement of case at a case management conference or, at any time after a case management conference, upon an application being made to the court.
CPR 1 provides:
1.1 (1) The overriding objective of the Rules is to enable the court to deal with cases justly.
(2) Dealing justly with a case includes, so far as is practicable,
(a) ensuring that the parties are on equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate to
(i) the amount of money involved;
(ii) the importance of the case;
(iii) the complexity of the issues; and
(iv) the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
1.2 The court must seek to give effect to the overriding objective when interpreting these Rules or exercising any powers under these Rules.
1.3 The parties are required to help the court to further the overriding objective.
The relevant portions of CPR 10 read:
10.1 The rules in this Part set out the procedure for disputing the whole or part of a claim.
10.2 (1) A defendant who wishes to defend all or part of a claim must file a defence in Form 5.
10.3 (1) The general rule is that the period for filing a defence is the period of 28 days after the date of service of the claim form and statement of claim.
…
(5) The parties may agree, by one agreement or several successive agreements, to extend the time for filing a defence … up to a maximum total period of 56 days.
(6) …
(7) Any further extensions may only be made by court order.
(8) The general rule is subject to any express provision made elsewhere in these Rules, ….
I come now to the first issue— is the defendant's application out of time? A “defence” is one of a number of procedural documents expressed to fall within the definition of the term “statement of case” contained in CPR 2.3. It is not disputed that the defence in this case is a statement of case for the purposes of CPR 20.1(2); nor that these proceedings reached case management some time ago.
Mr. Richards relied on CPR 20.1(2) to answer the assertion that the defendant's application is out of time. Invoking the plain language of the sub-rule, he contended that it allows that at any time after proceedings have reached case management, a party may on an application seek the leave of the court to amend a statement of case. That is clear enough.
But what did the claimant advance? He built his limitation argument on the timelines set out in CPR 10.3. CPR 10.3(1) prescribes twenty-eight days from the date of service of the claim form to be the general period for filing a defence. The ensuing sub-rules provide for extensions to that period by the agreement of the parties or order of the court. The defendant has not sought to exploit any of those provisions. I do not suggest that he needed to do so. The claimant submitted that an amended defence which substitutes absolute privilege for qualified privilege would be a wholly new defence. Consequently, he continued, the amended defence would be out of time given the timelines contained in CPR 10.3(1).
The claimant cited no authority for this novel proposition. Mr. Richard's rebuttal answers it convincingly. The filing of a defence and amending a defence are distinctly different procedural steps which are regulated by different parts of the CPR. CPR 10 deals with the filing of a defence, and CPR 20.1 with amendments to a defence. The fact that an amended defence advances a substantially different case to that contained in the defence it amends does not and cannot magically convert the former to the latter so as to render CPR 10 applicable. Such procedural acrobatics are impossible.
The process from the issuance of a claim form to judgment is a journey along a procedural highway that is carefully mapped out in the procedural rules. As with many journeys, sometimes there is a turning back. However, this occurs only as allowed by the rules of the road. After a defence has been filed, the case moves beyond the juncture sign-posted and directed by CPR 10.3. To uphold the claimant's submission requires a reckless U-turn that would throw litigants into irremediable and catastrophic chaos. I must reject it.
I turn to the claimant's second ground. He contends that the defendant's application is an abuse of the Court's process and, for that reason, should be struck out. No issue arises as to this Court's jurisdiction to strike out an application if it constitutes an abuse of process. However, the defendant disagrees that his application can be so characterised.
The general...
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