Tyrell Oneal Mccollin v Sheradon Holder and Darrie Hoyte

• Jurisdiction: Barbados
• Judge: Alleyne, J.
• Judgment Date: 30 August 2018
• Neutral Citation: BB 2018 HC 10
• Docket Number: 972 of 2015
• Court: High Court (Barbados)
• Date: 30 August 2018

High Court

Alleyne, J.

972 of 2015

Tyrell Oneal Mccollin

and

Sheradon Holder and Darrie Hoyte

Appearances:

Mr. Junior O. Allsopp Q.C. in association with Mrs. Makala K. Broome and Mr. Alphonza McD. Carew for the Claimant

Ms. Jessica R. Ashby in association with Ms. Stephna A. Greenidge for the

Civil practice and procedure - Application for interim payment — Personal injury matter where defendants had accepted liability — Quantum.

INTRODUCTION

Alleyne, J.

1 Before me is an application for an interim payment of $500,000.00 filed by the Claimant on 27 February 2018. The grounds on which he seeks the order are:

• “(i) The Claimant suffered severe injuries as a result of an accident on 8th May 2014. His injuries include, C4 ASIA A complete Spinal cord injury.

• (ii) The Defendants, through their insurer, Sun General Insurance Company Limited, have accepted liability for the accident which caused the Claimant's injury.

• (iii) The Claimant will recover a substantial sum of money by way of damages. The interim payment sought will not exhaust the likely award of damages in this case and represents a reasonable proportion of the likely amount of the final settlement or judgement on damages.

• (iv) The Claimant's condition due to his injuries continues to require care and any further delay can be detrimental to his recovery.”

2 The Defendants object to the application. They argue that there is insufficient evidence to support it. Alternatively, they urge that if the Court is minded to make an award, it should not exceed $40,000.00. This represents six months' living expenses as outlined in the Claimant's evidence.

3 Having considered the evidence and Counsels' submissions, the Court has decided to allow the application and to order a payment in the amount of $350,000.00. The reasons for this decision are set out below.

BACKGROUND

4 Born on 23 June 1997, the Claimant is now 21 years old. On 8 May 2014, he was struck by a motor vehicle while walking on a sidewalk at Sargeant's Village, Christ Church. That vehicle was owned by the First Defendant and driven by the Second Defendant. On 10 July 2015, the Claimant commenced proceedings against them in negligence. Along with special damages, he claims damages for pain and suffering, loss of amenities, domestic assistance, past and future medical expenses, and loss of earning capacity. The Defendants have admitted liability.

5 The Defendants have made previous interim payments. They paid $200,000.00 to the Claimant pursuant to an order made by Worrell J on 24 January 2017. Additionally, US$243,000.00 and other payments totalling $416,500.71 were made pursuant to various consent orders. These covered related expenses including the cost of local nursing care and rehabilitative treatment in the United States of America. The parties agree that the total amount paid by the Claimant thus far is approximately $1,112,220.61.

THE EVIDENCE: AN OVERVIEW

6 The Claimant's application is supported by the affidavit of his mother, Ms. Gloria McCollin. I will refer to its contents later.

7 Ms. Jessica Ashby filed an affidavit on the Defendants' behalf. She appeared for them in association with Ms. Stephna Greenidge. She exhibited a letter from Dr. Harley Moseley 111 dated 16 December 2015 and addressed to one of the Claimant's Counsel which she identified as a copy of “the document referred to as the medical report” of Dr. Moseley by Ms. McCollin at paragraph 8 of her affidavit. In fact, Ms. McCollin deposed that Dr. Moseley was the Claimant's attending physician and that “[a] copy the medical reports (sic) of Dr. Moseley 11 have been produced to the Defendants (sic)”. Ms. Ashby also verified the expenses paid for nursing care for the Claimant to be $262,536.72 and exhibited a supporting spreadsheet.

8 During the hearing of the application, Mrs. Makala Broome who appeared for the Claimant in association with Mr. Alphonso Carew and Mr. Junior Allsopp Q.C., referred me to a medical report from Dr. Moseley dated 2 December 2014 and a letter from him to Mr. Allsopp Q.C. dated 8 May 2015. Ms. McCollin exhibited those items with an affidavit filed on 10 July 2015 in support of an earlier application. Ms. Ashby took no objection to the use of these documents. Indeed, she referred to them in her submissions.

THE LAW: SOME GENERAL PRINCIPLES

9 Part 17 of the Supreme Court ( Civil Procedure) Rules, 2008 (the C.P.R.) provides generally for interim remedies. C.P.R. 17.5 to 17.9 relate specifically to applications for interim payments. C.P.R. 17.6(1) to (3) set out various conditions which must be satisfied for the grant of an order. There is no dispute that those relevant to this application have been met. The Defendants have admitted liability to pay damages to the Claimant ( C.P.R. 17.6(1)(a)); they are insured in respect of the claim ( C.P.R. 17.6(2)(a) and (3)(b)); and if the claim went to trial, he would obtain judgment for substantial damages against at least one of them ( C.P.R. 17.6(3)(a)).

10 However, the grant of an order is not automatic. It lies in the Court's discretion. In exercising that discretion, the Court is required by C.P.R. 1.2 to seek to give effect to the overriding objective of the C.P.R.. That objective as expressed in C.P.R. 1.1(1) is to enable the Court to deal with cases justly.

11 C.P.R. 1.2 sets out a non-exhaustive list of goals that are included so far as practicable in the notion of dealing with cases justly. This comprises (i) ensuring that the parties are on equal footing; (ii) saving expense; (iii) dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; (iv) ensuring that the case is dealt with expeditiously and fairly; and (v) allotting to the case an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

12 In respect of other relevant factors, I have found the comments of Auld L.J. in Campbell v. Mylchreest [1998] EWCA Civ 60 to be helpful. He stated in the first three paragraphs of his judgment:

A judge, when considering an application for an interim payment, has a discretion in the matter. This court's decision in Stringman v. McArdle[1994] 1 WLR 1653, has not changed that, as Lady Justice Butler-Sloss emphasised at p. 1656D. It is true that, as a guide to the exercise of that discretion, it indicates that the court should normally order sought interim payments within the amount of the likely recoverable damages without investigation or consideration of the plaintiff's intended use of the money.

However, there may be instances where there may be another matter, or other matters relevant to the exercise of the discretion. Mr. Mackay has helpfully suggested possible examples in other circumstances: first, that the payment is sought too close to the trial to justify ordering it; second, that the sought payment may be too small for it to be worthwhile as an exercise of the power; and third, where a plaintiff is not getting on with the claim and simply putting off the day of trial by repeated applications for interim payments.

… where the use to which a plaintiff intends to put money received by way of interim payment might prejudice the fair conduct of the trial in some way, it is, in my view, a relevant factor for consideration by the judge, along with the Stringman v. McArdle starting point, when exercising his discretion whether to order a payment. More particularly, where the use to which the plaintiff intends to put the money might pre-empt in some way the outcome of an important issue in the trial, that is a matter relevant to the exercise of the discretion.

13 C.P.R. 17.6(4) provides that “[t]he court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.” Evidently, this requires the Court to consider the likely amount of the final judgment and what would be a reasonable proportion of that amount. It must then ensure that any payment ordered falls within that barrier.

14 The terms “the likely amount of the final judgment” and “a reasonable proportion” are readily understandable. They require no engagement in sterile definitional analysis. However, guidance as to their practical application is useful and consideration as to the yardstick of “a reasonable proportion” necessary. A helpful passage in this regard is found at paragraph 3 of the judgment of Lady Justice Smith in Cobham Hire Services Limited v. Eeles[2009] E.W.C.A. Civ 204. With reference to the former practice in England and Wales, which generally is observed here, she stated at paragraph 3:

… the judge would usually make a conservative preliminary estimate of the likely final award. For that he would need both sides' schedule of loss, in so far as they could be provided at that stage. He would have to make a broad assessment of the merits of each side's contention and would err on the side of caution. He would order an interim payment which allowed a comfortable margin (or headroom) in case his preliminary estimate turned out to be too generous.

15 The purpose of the reasonable proportionality requirement was stated with her usual clarity and succinctness by Cornelius J in Hoyte v. Electric Sales and Services Ltd, High Court Suit No. 1156 of 2002, date of decision 28 May 2011. She was speaking in the context of an identical requirement contained in Order 29, Rule 11 of the Rules of the Supreme Court, 1982. Citing Spillman v. Bradfield Riding Centre [2007] E.W.H.C. 89, she stated at paragraph 11:

There the court emphasized that the amount payable as an interim award should not be such as to expose the defendant to the risk that the eventual damages will be less than the sum or sums paid out as interim awards. If it turns out that the plaintiff has been...