Anthony Clyne Appellant/Claimant v The Guyana and Trinidad Mutual Insurance Company Ltd Respondent/Defendant [ECSC]

• Jurisdiction: Grenada
• Court: Court of Appeal (Grenada)
• Judge: EDWARDS, J.A.,Justice of Appeal,Ola Mae Edwards,Janice George-Creque,Clare Henry,Justice of Appeal [Ag.]
• Judgment Date: 05 May 2010
• Judgment citation (vLex): [2010] ECSC J0505-2
• Docket Number: HCVAP 2010/011
• Date: 05 May 2010

[2010] ECSC J0505-2

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mde. Clare Henry Justice of Appeal [Ag.]

HCVAP 2010/011

Between:

Anthony Clyne

Appellant/Claimant

and

The Guyana and Trinidad Mutual Insurance Company Limited

Respondent/Defendant

Appearances:

Mrs. Celia Edwards with Ms. Corina Johnson for the appellant/claimant

Ms. Dia Forrester for respondent/defendant

REASONS FOR DECISION

EDWARDS, J.A.

1 On 5^th May 2010, we heard this interlocutory appeal against the ruling of the learned judge made on 30^th April 2010. The learned judge ruled upon hearing a contested application by the respondent for relief from sanction and permission to file a witness statement out of time. The judge granted the application and ordered that the defendant file the witness statement of Mrs. June Belmar-Church within 7 days of the date of the order and there be no order as to costs. We allowed the appeal, set aside the ruling of the learned judge with costs agreed at $1,500.00 to the appellant and promised to give written reasons for our decision.

Background Facts

2 The appellant who operates a rental car service, was the owner of motor vehicle registered RM898 which was involved in an accident on a public road on 12^th March 2003, whilst being driven by Mr. Alban James. This accident resulted in a third party Mr. Thomas Baker sustaining loss and damage. This motor vehicle was insured by the respondent at the material time under a policy of insurance wherein the respondent undertook to indemnify the appellant for any damage to property including costs and expenses arising as a consequence of the vehicle being used on the road. Mr. Thomas Baker who sued the appellant for damages in Claim No. 346 of 2006, obtained default judgment against the appellant for the sum of $18,932.15 together with interest thereon at 6% per annum.

3 The appellant thereafter, brought an indemnity claim against the respondent to satisfy the judgment in Claim No. 346 of 2005. The respondent in its defence to this claim alleged that it is entitled to deny the claim because the appellant in breach of the conditions of the insurance policy:

• (a) failed to provide full details of the accident and complete a Claim Form;

• (b) failed to co-operate with the respondent in defence of the Claim No. 346 of 2005; and

• (c) having failed to notify the respondent of the accident immediately or at all, failed to give any full particulars of anything thereof.

The respondent pleaded also that the appellant did not present to the respondent Claim No. 346 of 2005 which was instituted on 27^th July 2005, and served on the respondent by the legal representatives of Mr. Thomas Baker on 14^th September 2005. Consequently, the respondent was not obligated to indemnify the alleged loss as the claim was not served within 7 days as required by section 14 of the Motor Vehicles Insurance (Third Party Risks) Act Cap. 202.

4 The appellant in his reply denied these allegations of the respondent, and pleaded at paragraph 1(a) to (c) that he accompanied the driver Mr. Alban James to the respondent company to make a report; that Mr. James in a written statement given to Mr. Baker (an employee of the respondent) admitted that the accident was his (Mr. James') fault; that subsequently a female employee of the respondent contacted him and indicated that the respondent needed more information from Mr. James; that the appellant tried to contact Mr. James who had returned to the United Kingdom; and so informed the respondent. The appellant's subsequent witness statement supports these pleaded allegations.

5 At a case management conference held on 16^th April 2008, the Master made an order that witness statements were to be filed by 30^th September 2008. The respondent filed the witness statement of Johnson Cornwall and a witness summary for Cyril Phillip on 30^th September 2008. The appellant who was abroad on the deadline date, sought an extension of time to file his witness statements by an application filed on 10^th October 2008. This application was granted and the appellant filed his witness statement on 20^th October 2008. On 21^st October 2008 the appellant filed his Pretrial Memorandum which indicated that one of the three issues to be determined at the trial is: "(a) Whether the Claimant failed to perform his obligations under the contract of insurance with the Defendant vis-à-vis the accident."

6 A Pretrial Memorandum filed by the respondent on 29^th January 2009, identified 3

issues to be determined at the trial:

• "(i) Whether the Claimant failed to perform his obligations under the contract of insurance with the Defendant vis-à-vis the accident;

• (ii) Whether, in the circumstances the Defendant is entitled to avoid liability under the contract of insurance.

• (iii) Whether or not the Defendant is exempt from indemnifying the Claimant for damages as awarded against them in CLAIM NO. GDAHCV 2005/0346, due to the Claimant's failure to comply with the section 14 of the Motor Vehicles Insurance (Third Party Risks) Act Cap 202 as amended (Act No. 39 of 1994)."

7 However, the respondent identified in this Pretrial Memorandum the factual and legal contentions of the claimant to be:

• "(i) That the Defendant is no longer liable to indemnify the Claimant for damages as ordered against them in CLAIM NO. GDAHCV 2005/0346 due to the Claimant's failure to serve the Defendant in accordance with the Motor Vehicle Insurance (Third Party Risks) Act Cap 202 as amended (Act No. 39 of 1994) within 7 days of the commencement of the suit.

• (ii) That the Defendant is entitled to costs and further or other relief as the court sees fit."

8 The matter was set down for trial on 1^st April 2009, following the Pretrial Review order with a trial window of May 2009; and the trial bundle containing the witness statements was filed on 1^st April 2009. The respondent filed a supplemental trial bundle which contained a copy of the respondent's motor insurance policy. The trial date was postponed to 12^th November 2009. The respondent filed an application on 11^th November 2009 for permission to file the witness statement of Mrs. June Belmar-Church with the supporting affidavit of Mr. James Bristol counsel for the respondent; which alleged that an exhibited letter dated 11^th January 2006 from the Operations Manager Mrs. June Belmar-Church to the Fire Manager—GTM Guyana reporting on Claim No. GDAHCV 2005/0346 was a statement that was inadvertently overlooked in the preparation for the trial as it was amongst the material in their file relating to Claim No. 2005/0346 and in preparation for trial on 12^th November 2009 it was unearthed. Mr. Bristol asserted in this supporting affidavit that no prejudice would be caused to the appellant by the proposed unsigned witness statement of Mrs. June Belmar-Church but its absence from the trial would jeopardize the case of the respondent as it speaks directly to the defence. The respondent subsequently filed an amended application on 23^rd November 2009 which added a request for relief from sanction. The learned judge in her ruling stated that the matter did not come on for trial on 12^th November 2009 owing to circumstances not attributable to the parties. The respondent's application came on for hearing on 16^th March 2010 before the learned judge.

9 The gravamen of the appellant's objection to the application in the court below and before us is that the respondent narrowed its factual and legal contention to that stated in its pretrial memorandum, and having subsequently realized that the decision inJeffery Joseph v General Insurance Agency1 would undermine the defence connected to the factual and legal contention, the respondent is seeking to rely on the lack of notification defence to the obvious prejudice of the appellant. The appellant's affidavit contained evidence to support his opposition to the application and his contention of being prejudiced.

10 In determining the application the learned judge at paragraphs 19 to 32 of her written ruling went through the exercise required by CPR 27.8(4); 29. 11 and 26. 8 and relevant case law relating to these rules. CPR 26.8 states:

• "(1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be—

  • (a) made promptly; and

  • (b) supported by evidence on affidavit;

• (2) The court may grant relief only if it is satisfied that—

  • (a) the failure to comply was not intentional;

  • (b) there is a good explanation for the failure; and

  • (c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions.

• (3) In considering whether to grant relief, the court must have regard to — the effect which the granting of relief or not would have on each party;

  • (a) the interests of the administration of justice;

  • (b) whether the failure to comply has been or can be remedied within a reasonable time;

  • (c)...