Romney v Smith

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Moise, M.
• Judgment Date: 22 May 2018
• Neutral Citation: AI 2018 HC 7
• Docket Number: CLAIM NO: AXAHCV 2012/0065
• Date: 22 May 2018

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Moise, M.

CLAIM NO: AXAHCV 2012/0065

Between:

Vanroy Romney

Claimant

and

Sheridan Smith

Defendant

Appearances:

Ms. Jenny Lindsay for the Claimant

Mrs. Latoya Hobbs-Nurse for the Defendant

Civil practice and procedure - Striking out — Summary judgment — Defence — Whether defence ought to be struck out — Whether statement of case ought to be struck out — Whether claimant entitled to summary judgment — CPR R. 26.3.

JUDGEMENT

Moise, M.

1 The claimant brought this action against the defendant for breach of contract in the sum of Sixty-two Thousand, Four Hundred and Twenty United States Dollars ($62,420.00US). The contract relates to the performance of certain electrical works which the claimant carried out on property belonging to the defendant for a period ending in the year 2006. As I understand it, the agreement between the parties was not reduced to writing and can be described as an oral agreement. The matter has had a long procedural history before this Court as it relates to the disclosure of certain electrical plans which were at some point in the defendant's possession. There are now two applications before me. The claimant applies for an order striking out the defence and entering judgment in his favour along with costs. The defendant on the other hand applies for an order striking out the claim against him and entering judgment in his favour. I have denied both applications and made no order as to costs. These are my reasons for doing so.

2 Before examining each application, it is important to outline some of the procedural history of this matter before the Court. On 12 ^th October 2012 the claimant commenced this action. This would have been approximately 6 years on from the performance of the contract. The matter went through its normal case management procedures and on 28 ^th October, 2013 case management directions were given and it was ordered that the parties give standard disclosure to each other on or before 22 ^nd November 2013. Upon disclosure however, the claimant complained that the defendant failed to disclose certain documents, some of which were electrical plans which relate to the job which was performed by him. The other was a particular cheque which does not appear to be an issue of contention anymore. Although some plans were disclosed, it is apparent that not all of the electrical plans relating to the work done were disclosed by the defendant. It was argued that the plans were an important feature in the case and the failure to disclose these documents was a breach of the defendant's duty as ordered by the master on 28 ^th October, 2013. In that regard, the claimant filed an application on 31 ^st January 2014 requesting an order for specific disclosure of the documents as well as the check which the defendant did not disclose. This was granted on 14 ^th May, 2014. Notwithstanding this, the defendant did not disclose the documents and on 18 ^th June, 2014 the claimant applied to the court for an unless order that if the documents were not disclosed the defence would be struck out and judgment entered in favour of the claimant.

3 On 24 ^th July, 2014 Master Raulston Glasgow (as he then was) granted the request made by the claimant to the effect that the documents were to have been disclosed on or before 30 ^th September 2014, failing which the defence would be struck out and judgment entered in favour of the claimant. However, the defendant made an application to the court prior to the expiration of the unless order, requesting a variation of the order on the basis that despite his best efforts he could not locate the outstanding electrical plans and therefore could not disclose them. Insofar as the cheque was concerned he stated that this cheque was referred to in error and did not exist. This application for variation and relief from sanctions was heard on 21 ^st October, 2014 and was granted. In effect, Master Georges V. Taylor-Alexander (as she then was) accepted the evidence of the defendant that he could not locate the plans and varied the order for specific disclosure and relieved the defendant from any sanctions which may be imposed for his failure to disclose the documents within the time prescribed.

4 The claimant applied to have this order set aside on the basis of the fact that neither he nor his counsel was present at the hearing when the variation order was made. This application was not successful and the claimant's appeal of this decision to the Court of Appeal was similarly unsuccessful. The claimant has now brought this application regarding disclosure of the same documents, more particularly the electrical plans, which were the subject of previous applications and was also considered by the Court of Appeal. The defendant on the other hand argues, inter alia, that given the claimant's own admission that he cannot proceed to trial without the documents, the claim against him should be struck out on that basis as the claimant now has no real prospect of successfully prosecuting his case. I will deal with each application in turn.

The Claimant's application

5 The claimant's application is generally for an order striking out the defense and entering judgment in his favour. In the first instance, the claimant relies on Rule 26.3 of the Civil Procedure Rules 2000 (CPR) which outlines the Court's powers to strike out a statement of case in the following manner:

• 26.3(1) In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that —

  • (a) there has been a failure to comply with a rule, practice direction, order or direction given by the court in the proceedings;

  • (b) the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a claim;

  • (c) the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings; or

  • (d) the statement of case or the part to be struck out is prolix or does not comply with the requirements of Part 8 or 10 .

6 In the alternative, the claimant requests that the court strikes out the defence on its own initiative in keeping with the provisions of Rule 26.2 of the CPR which states that “[e]xcept where a rule or other enactment provides otherwise, the court may exercise its powers on anapplication or of its own initiative.” However, given that there is an application before me I am not of the view that Rule 26.2 is of much assistance and I will proceed to determine this application on the criteria set in Rule 26.3 of the CPR. The claimant also relies on Rule 28.12 where it states that “[t]he duty of disclosure in accordance with any order for standard or specific disclosure continues until the proceedings are concluded”. Reliance is also placed on Rule 28.13 which states as follows:

• 28.13 (1) A party who fails to give disclosure by the date ordered, or to permit inspection, may not rely on or produce at the trial any document not so disclosed or made available for inspection .

• (2) A party seeking to enforce an order for disclosure may apply to the court for an order that the other party's statement of case or some part of it be struck out .

• (3) An application under paragraph (2) relating to an order for specific disclosure may be made without notice but must be supported by evidence on affidavit that the other party has not complied with the order .

• (4) On an application under paragraph (2) the court may order that unless the party in default complies with the order for disclosure by a specific date that party's statement of case or some part of it be struck out .

7 The claimant has grounded his application on the following propositions:

• (a) That the defendant's actions in failing to comply with court orders obliging him to disclose specific documents has been contumacious and/or contumelious. The claimant is materially prejudiced. He cannot have a fair trial as he has no prospect of success without disclosure of the documents;

• (b) The defendant has repeatedly failed to comply with orders of the Court to disclose specific documents over an inordinate period of time. A fair trial is no longer possible. This is an abuse of process;

• (c) In the alternative, the defendant's failure to disclose the documents has led to a situation where the defendant, by his own contumacious and/or contumelious conduct, has no evidence to rebut the claim. The defendant has no prospect of success and the court of its own initiative ought to enter summary judgment for the claimant and strike out the defense;

8 The claimant argues that by court orders dated 14 ^th May and 24 ^th July, 2014, the defendant was obligated to disclose the electrical plans. It was argued that despite the variation of these orders on 21 ^st October, 2014 the master never relieved the defendant of his duty to disclose. Counsel for the claimant argued that the only element of the order which was varied was the time within which to disclose the documents. On that basis, the claimant argues that the defendant's failure to disclose the documents, even at this late stage, is contumacious and/or contumelious and amounts to an abuse of the process of the court. The claimant also argues that the court should have regard to the overriding objective to do justice in this case and consider that without the documents the claimant is unable to prove his case. In that regard it was further argued that the defendant is no longer in a position to rebut the claim against him and therefore has no prospect of success. As a result of this, it is argued that judgment should be entered summarily against the defendant.

9 The defendant, on the other hand, argues that the issues raised in this application have...