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Barbados Court of Appeal |
] [Hide Context] BARBADOS
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Civil Suit No. CV1174 of 2015
BETWEEN:
ANGELA JUANITA SPRINGER CLAIMANT/APPLICANT
AND
ALL SEASONS RESORT-EUROPA DEFENDANT/RESPONDENT
Before Master Deborah Holder, BSS, Master of the High Court
2019: March 21
November 18
2021: August 26
Appearances:
Mr. Dennis Headley, Attorney-at-Law for the Claimant/Applicant
Ms. Nikita Vaughn, Attorney-at-Law for the Defendant/Respondent
DECISION
INTRODUCTION
[1] This is a claim for personal injuries. The Claimant/Applicant’s (the Applicant) application to strike out the Defendant/Respondent’s (the Respondent) defence pursuant to Rule 26.3 and for summary judgment pursuant to Rule 15.2(a)(ii) and (b) of the Supreme Court (Civil Procedure) Rules 2008 (CPR), was filed on 27th October, 2017 along with an Affidavit in Support. A supplemental Affidavit in Support was filed on 22nd May, 2018.
FACTS
[2] According to the Applicant she was employed by the Respondent as a Room Attendant at premises located at Sunset Crest, St. James. Her duties included cleaning rooms occupied by guests and the preparation of rooms for occupation by guests. To carry out her duties she had to traverse a pathway which linked two sections of the resort. The pathway was open to the elements. On 14th August, 2012 she slipped and fell and injured her wrist.
[3] The Applicant alleged negligence. The particulars included failure to provide a safe area of work, failure to adequately maintain the pathway to prevent the Applicant from slipping, failure to provide a safe area of work for the Applicant to traverse to carry out her duties, failure to ensure that the area was a non slippery surface, breach of statutory duty of care pursuant to section 7 of the Occupier’s Liability Act Chapter 209 and breach of statutory duty of care pursuant to the Safety and Health at Work Act Chapter 356.
[4] On 28th March, 2017 the Respondent filed its defence. It admitted that the Applicant was its employee. She was a Room Attendant with duties as described and that she had to traverse the pathway which was open to the elements. It did not admit that she slipped and fell and sustained injury, loss and damage.
[5] The Defence is a follows:
“The Defendant, ALL SEASONS RESORT-EUROPA disputes the Claim on the following grounds:
BACKGROUND
[6] The Claim Form and Statement of Claim were filed on 14th August, 2015. The report of Dr. Lennbert Brathwaite, MBBS (UWI), Primary Care Physician was attached. The Respondent was served on 3rd September, 2015 according to the Affidavit of Service filed on 1st October, 2015. An Acknowledgement of Service was filed on 5th January, 2017 and a Defence was filed on 28th March, 2017. At the first case management conference on 3rd July, 2017 Mr. Headley sought the court’s permission to make an oral application to strike out the Respondent’s Defence. The court instructed Counsel to file and serve his application and adjourned the matter. At the next conference instructions were given for the parties to file and serve submissions. Without application or leave of the court the Respondent, on 27th October, 2017 filed and served another Defence and a counterclaim. Counsel for the Applicant voiced objection to this. This document was not the basis of his application.
Affidavit in Support
[7] The Applicant’s Affidavit in Support was filed 27th October, 2017. She deposed that she was aged 58 at the time. She was asked to assist in the house keeping department. She left the said department to investigate a room which guests had refused. As she was walking on the footpath she slipped and fell. She immediately told two of her colleagues who were just ahead of her and immediately thereafter she reported it to the front desk officer. Her colleagues assisted her with an ice pack and a towel to wrap around her wrist. Mr. Albert Wilson, the person in charge of the premises was contacted but did not appear to know who was the company’s doctor. After two hours of excruciating pain without further assistance, Mr. Wilson agreed that she should go to a private doctor. The doctor referred her to Sandy Crest for x-rays. Mr. Wilson instructed that she should bring the doctor’s bills to him. She did so, along with her NIS form.
[8] On her return to the workplace she spoke to the Manager, Ms. Kessurran, who refused to pay the medical bills. She told the Applicant that her policy was to pay for the first doctor’s visit and no other medical bills. The Manager said that she had paid for the x-rays.
[9] The Applicant returned to work but she continued to experience pain and could not continue to work. Her last day at work was 19th November, 2012. She also sought medical attention from other doctors. Throughout these many years excruciating pain persisted and she was forced to rely on her children for financial assistance.
[10] The Applicant also deposed that she was never advised of a dress code nor was she ever accused of violating a dress code. On the day of the incident she wore an appropriate dress and footwear namely an enclosed sandal–shoe which she had worn to work previously.
Supplemental Affidavit
[11] A Supplemental Affidavit filed 22nd May, 2018 attached Exhibit AJS1, a quotation from Dr. Jerry A.W. Thorne FRCS for remedial surgery which the Applicant requires on her right wrist.
Affidavit in Response
[12] The Respondent did not file an Affidavit in Response.
The Applicant’s Submissions
[13] Mr. Headley stated that summary judgment applications were not meant to dispose of the need for trial where there were issues to be considered at trial but to dispose of cases where there was no real prospect of success. His position was that the Respondent had no real prospect of successfully defending the claim and there was no other reason why this case should proceed to trial. He characterized the defence as a non defence and he submitted that the Respondent was in breach of Rule 10.5 of the CPR which stipulated that the Respondent had a duty to set out its case. There was non-compliance with all the requirements provided for in the rules. The Respondent did not set out the reasons for denying or resisting the allegations as well as a different version of events.
[14] He queried whether this was all the Respondent could come up with, two years after the Statement of Claim was filed. He was of the opinion that the only case before the court was outlined in the Applicant’s statement of case and therefore there was no issue for the court to consider. He pointed out that under Rule 10.5 the words “must” and “all” were used. The Respondent disputed negligence, breach of statutory duty and still provided no other version of events. He also emphasized that under the rules the Respondent was required to provide a short statement of all the facts on which it relied to dispute the claim. It provided none. The requirement to identify or annex to the Defence any document which it considered necessary to its defence was also not complied with. The omissions lead Counsel to the conclusion that the Respondent had no real prospect of successfully defending the claim and there were no other issues to be determined by the court.
[15] In his opinion such a defence was not only an abuse of process but it would obstruct the just disposal of the proceedings as it disclosed no reasonable ground for defending the claim.
[16] He argued that summary judgment could be used to prevent weak cases from proceeding. This was supplemental to the power to strike out and it allowed the court to summarily dispose of cases on points of law.
[17] He contended that the “non-defence” amounted to an admission of the Applicant’s claim and to prolong this matter would be a “questionable utilization of the court’s resources and serve[d] no useful purpose”. He concluded that having failed to provide a defence that met the requirements of Rule 10 and the failure of the Respondent to dispel obligations under Rules 26.3 and 15(2)(a)(ii) and (b) of the CPR, summary judgment in favour of the Applicant should be granted.
[18] Cases cited were Three Rivers District Council v. Bank of England (No.3) [2001] UKHL 16 [2003] AC 1; Swain v. Hillman [2001] 1 All ER 91 on real prospect of success and E.D & F Man Liquid Products v. Patel (The Times, 18th April 2003) on burden of proof.
The Respondent’s Submissions
[19] Ms. Vaughn submitted that the grant or refusal of summary judgment under Rule 15 was a judicial discretion. The court is required, by virtue of Rule 1.2, to give effect to the overriding objective when interpreting the rules or exercising any powers under the rules. Consequently Rules 15.2 and 26.3 must be interpreted with this in mind in order to deal with cases justly.
[20] She further submitted that the test for summary judgment was only satisfied when the Applicant had shown that there was no genuine issue of material fact requiring a trial. She cited Landfast (Anglia) Ltd. v. Cameron Taylor One Ltd. [2008] EWHC 343 (TCC) where Akenhead J discussed the principles to be applied.
[21] She contended that the court’s role was restricted in that it had to be satisfied that a trial was unnecessary. Further if there was a genuine issue of fact, no matter how weak or how strong the pleadings under attack appeared to be, the case had to proceed to trial. She also contended that the jurisdiction to strike out ought to be sparingly exercised and only in exceptional cases (Lawrence v. Lord Norreysi [1890] AC 210 at 219 per Lord Hershell). Moreover, it was limited to plain and obvious cases where there was no point in having a trial (Blackstone’s Civil Practice, 2011 at 33.6). Also cited was McDonalds’s Corporation v. Steel [1994] EWCA Civ 41; [1995] 3 All ER 615.
[22] Ms. Vaughn submitted that the power was only used if a defence failed, on its face, as a matter of law. For cases where striking out was appropriate Partco Group Ltd. v. Wragg [2002] EWCA Civ 594, [2002] 2 Lloyd’s Rep 343 per Potter LJ at [46] and Price Meats Ltd. v. Barclays Bank plc [2002] 2 All ER (Comm) 346 were cited. She also referred to a passage from Kodilinye and Kodilinye which was endorsed by the court in Junior Wood Trucking Services Inc. v. Butcher BB 2014 HC 24. The passage is as follows:
“The main distinction between striking out and summary judgment is that the former is aimed at weakness in the manner in which the issues are set out in the statement of case, whereas the latter is used in cases of defences that are weak on the facts and, since summary judgment is defined as ‘a procedure by which the court may decide a claim or a particular issue without a trial’ [Martinez v Elijio (2006) SC Belize, No 97 of 2005 (unreported)], it is clear that it applies also to cases or defences based on misconceived points of law.” (Commonwealth Caribbean Civil Procedure, 3rd ed., 2009 at page 63).”
[23] It was her position that under Rule 10.5 all that was required was a short statement of facts and not written submissions. This allowed issues to be identified at an early stage as stated in Part 25.(1) of the CPR. She submitted that the Respondent’s response (at paragraph 5 of the Defence) to the Applicant’s paragraphs 4 and 5 complied with Rule 10.5.(1) as well as the case law which requires that the defence disclosed must be sustainable in law. The Applicant stated in the statement of claim that she slipped and fell and sustained personal injury, loss and damage as a result of the negligence and/or breach of statutory duty by the Respondent which it owed to the Claimant. She argued that her ground of defence was negligence on the Applicant’s part and the Respondent had a real prospect of defending the claim.
[24] She said that the sole consequence of not setting out a defence under Rule 10.7 was that the Defendant might not rely on any ground or allegation which was not set out but the court had the discretion to grant permission to do so.
[25] Rather than strike out, the court had the discretion to allow a defence to be amended. She reasoned that an amendment should be allowed if what was proposed was arguable, important to the determination of the issues between the parties and if the other side would not suffer undue prejudice. She cited Gale v. Superdrug Stores plc [1996] EWCA Civ 1300; [1996] 3 All ER 468 at 477-478 where the court said that the rules provided for amendment of pleadings so that mistakes in the formulation of issues could be corrected.
[26] Ms. Vaughn also submitted that by virtue of Rule 26.4, the court had the power to rectify matters where there had been an error of procedure, failure to comply with a rule, practice direction or court direction or order. Such failure would not invalidate any step taken in the proceedings unless the court so orders.
[27] She referred to the following statement on Rule 26.3 (1)(2) and (3).
“[22] In the opinion of this court the intended consequence of Part 26 is to provide a Court with the means of enforcing compliance with the provisions of the CPR, practice directions, court orders and the Overriding Objective. In other words, it gives ‘teeth’ to case management orders and is not meant to unnecessarily deprive a litigant of access to the courts (justice).” (Per Reifer J in Boyce et al v Commissioner of Police et al BB 2014 HC 40)”
[28] In Ms. Vaughn’s opinion the court would be required to conduct a protracted examination of documents in order to determine whether the Respondent had a defence. Also, that the Applicant had “failed to meaningfully engage with the issue” whether the Respondent had no real prospect of defending the case. In her opinion, the matter should be disposed of at trial. She asked the court to dismiss the application and order costs in favour of the Respondent.
ISSUES
[29]
(1) Whether the defence is in compliance with Rule 10 of the CPR.
(2) Whether the defence discloses no reasonable ground for defending the claim. / Whether the Defendant has no real prospect of successfully defending the claim.
(3) If the above questions are answered in the negative, whether the court should exercise its discretion under Rules 26.3(3)b and 15.2(a)(ii) to strike out the defence and give summary judgment to the Applicant.
LAW
[30] Defendant’s duty to set out his case
10.5(1) The defendant must include in his defence a short statement of all the facts on which he relies to dispute the claims made against him.
(2) In his defence the defendant must state which, if any, of the allegations in the claim form or the claimant’s statement of claim
(a) are admitted;
(b) are denied;
(c) are neither admitted nor denied, because the defendant does not know whether they are true, but which he wishes the claimant to be required to prove.
(3) Where the defendant denies any allegations in the claim form or statement of claim,
(a) he must state his reasons for doing so; and
(b) where he intends to prove a different version of events from that given by the claimant, he must state concisely his own version.
(4) Where, in relation to any allegation in the claim form or statement of claim the defendant does not
the defendant must state each of his reasons for resisting the allegation.
(5) The defendant must identify in or annex to the defence any document which he considers to be necessary to his defence.
Consequences of not setting out defence
[31] 10.7 The defendant may not rely on any allegation or ground which is not set out in the defence, but which the defendant could have set out there, unless the court gives permission to do so.
Special requirements applying to claims for personal injuries
[32] 10.8(1) This rule sets out additional requirements with which a defendant to a claim for personal injuries must comply.
(2) Where the claimant has attached to the claim form or statement of claim a report from a medical practitioner on the personal injuries which the claimant is alleged to have suffered, the defendant must
(a) state in the defence whether all or any part of the medical report is agreed; and
(b) if any part of the medical report is disputed, the nature of the dispute.
(3) Where the defendant intends to rely on a report from a medical practitioner to dispute any part of the claimant’s claim for personal injuries and the defendant has obtained such a report, the defendant must attach that report to the defence.
Sanctions – Striking out statement of case
[33] 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 where it appears to the court that there has been a failure to comply with a rule or practice direction or with an order or direction given by the court in the proceedings.
(3) The court may also, in addition to all other powers under these Rules, strike out, at a case management conference or otherwise upon an application on notice, a statement of case or part of a statement of case if it appears to the court
Grounds for summary judgment
[34] 15.2. The court may give summary judgment against a party on the whole of a claim or on a particular issue if
(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
Striking out/Summary Judgment. The Principles
[35] The act of striking out has been described not only as a serious step and an extreme step, but as a draconian step. One is also reminded that caution is required before exercising the jurisdiction. Striking out is a discretionary power which must be sparingly exercised. Its use is limited to plain and obvious cases where there is no point in having a trial. It is therefore not appropriate when there are issues which can only be properly determined by hearing evidence. Striking out has also been described as a useful tool which can be utilized in appropriate cases.
[36] The principles which guide the court when dealing with applications made pursuant to Rules 26.3 and 15.2 of the CPR are well settled by the case law. In Paradise Beach Ltd. and Paradise 88 Ltd. v. Edghill and Pate BB 2012 CA15 the Court of Appeal, followed Wenlock v. Moloney and others [1965] 2 All ER 871 and Chan U Seek v. Alvis Vehicles Ltd. [2003] EWHC 1238 (Ch) in holding that the court should not engage itself in a minute protracted examination of documents and facts of the case. It also held, following King v. Telegraph Group Ltd. [2003] EWHC 1312 that it was not appropriate to strike out a claim where the central issues were in dispute and most importantly regard must be paid to the overriding objective to deal with cases justly, in exercising the decision to strike out.
[37] The approach to be taken when dealing with a challenge to a statement of case under both Rules 3.4(2)(a) and 24.2(a)(i) UK (Rules 26.3.(3)b and 15.2 of CPR) labelled a “double barrelled challenge”, was discussed by Brooks LJ in Chief Constable of Kent v. Rixon and others [2002] All ER (D)476. He said that the court would start by considering the first challenge for which it would not normally need to consider evidence. If there is a coherent set of facts and a legally recognizable claim, then the applicant will have to persuade the court that in spite of this the respondent’s case has no real prospect of success.
[38] In Landfast (Anglia) Ltd. v. Cameron Taylor One Ltd. [2008] EWHC 343 (TCC) Akenhead J, in discussing the principles to be applied in a summary judgment application, referred to a quote from the judgment of Neuberger J in Chan U Seek v. Alvis Vehicles Ltd. [2003] EWHC 1238 (Ch), which he considered to be helpful. This case dealt with a strike out and summary judgment application. The quote is as follows:
“19. The Master divided his approach into consideration of dismissing the claim under CPR 3.4(2) and dismissing the claim under CPR 24. In agreement with counsel for the defendant and … for Mr. Chan, it seems to me that ultimately the question is singly whether or not the claim stands any real chance of success. Whether one approaches that issue under one or other of the CPR Rules does not seem to me to matter – a view which seems consistent with the approach in the House of Lords in The Three Rivers case”.
[39] In Swain v. Hillman and another [2001] All ER 91 Lord Woolf MR said that the words “no real prospect of succeeding” needed no further amplification. They direct the court to the need to see whether there is a realistic as opposed to a ‘fanciful’ prospect of success.
[40] The following extract provides commentary on the phrase “no real prospect of success”.
“The phrase does not mean ‘real and substantial’ prospect of success. Nor does it mean that summary judgment will only be granted if the claim or defence is ‘bound to be dismissed at trial’. Nor does it require compelling evidence, but simply enough evidence to raise a real prospect of a contrary case (Korea National Insurance Corporation v. Allianz Global Corporate and Specialty AG [2007] EWCA Civ 1066, LTL 30/10/2007).
In Bee v. Jenson [2006] EWHC 2534 (Comm), [2007] RTR 115, the court adopted the approach explained by Potter LJ in E.D. and F. Man Liquid Products Ltd. v. Patel [2003] EWCA Civ 472, [2003] CPLR 384, at [8]:
I regard the distinction between a realistic and fanciful prospect of success as appropriately reflecting the observation in the Saudi Eagle that the defence sought to be argued, must carry some degree of conviction. Both approaches require the defendant to have a case which is better than merely arguable, as was formerly the case under RSC ord. 14.”[1]
[41] In Three Rivers District Council v. Bank of England (No.3) [2001] UKHL 16, [2001] 2 All ER 513 Lord Hope of Craighead at [94] made the point that whether the claim had no real prospect of succeeding at trial had to be answered by having regard to the overriding objective of dealing with the case justly. He also agreed with Lord Woolf in Swain v. Hillman that Rule 24 (Rule 15 CPR) was designed to deal with cases that are not fit for trial at all.
[42] He further said:
“[158] … The important words are “no real prospect of succeeding.” It requires the judge to undertake an exercise in judgment…. It is a “discretionary power, …he must carry out the necessary exercise of assessing the prospect of success of the relevant party… [T]he judge is making an assessment not conducting a trial or a fact finding exercise…, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the ‘bottom line’ is what ultimately matters.
[159] … There is no point in allowing claims to proceed which have no real prospect of success, certainly not in proceeding beyond the stage where hopelessness has certainly become apparent.”
Burden of Proof and standard of Proof
[43] The burden of proof is on the Applicant (Director of Assets Recovery Agency v. Woodstock [2006] EWCA Civ 741). The standard of proof required of the Respondent is not on the balance of probabilities. It is not high. It suffices to merely rebut the Applicant’s statement of belief. The Respondent’s case must carry some degree of conviction.
DISCUSSION
[44] As I commence this discussion I will firstly deal with a matter which was raised by the Respondent’s Counsel. This court instructed Mr. Headley to file and serve his application to strike out, after he failed to persuade the court that he should be allowed to make the application orally. The Respondent, without making an application to amend its Defence pursuant to Rule 20.1(2) of the CPR, filed and served a new Defence and a counterclaim. It is clear that this document was intended as a response to the pending application.
[45] Ms. Vaughn, without citing legal authority or precedence, submitted that if the court did not accept her arguments that the Defence was in compliance with Rule 10 and that it was sustainable, the new document should be accepted in substitution of the said Defence. This, she contended, would show that the Respondent was in compliance with the requirements of Rule 10 and that it had a real prospect of successfully defending the claim.
[46] The only application before the court is the Applicant’s. Its target is the Defence filed on 28th March, 2017. No application was made by the Respondent to amend its Defence. If indeed this was done the Applicant would be entitled to be heard on that matter. The legal basis on which the court should make a switch from the Defence under consideration to a document filed in these circumstances, has not been demonstrated. Consequently, the court will not give any consideration to the contents of that document.
[47] The true purpose of a statement of case is discussed below.
“A good claim or defence should enable the parties and the court to narrow down and identify the central issues in dispute. This has always been the case….
Thus, as in the past a claim or defence which discloses little or nothing about the party’s case is liable to be (and today almost certainly will be) struck out….
Similarly a ‘block and parry’ defence, confining itself merely to admitting, requiring proof of or denying the allegations in the claim, but not containing any particulars of the defendant’s case, will also be liable to be struck out.
The ultimate purpose of a party’s pleadings is to inform the other party of the case against them….
Good drafting involves the concise and clear identification of the subject matter of the claim, the issues in the case and the parties’, respective positions in respect of those issues.[2]
[48] The Respondent has filed and served a bare-bones Defence. On examination it is easier to say what is missing than what is included. There is no short statement of facts on which the Respondent relies to dispute the claim made against it. No reasons for denial of any allegation made in the claim form or statement of claim have been stated. The Respondent’s own version of the facts is not stated concisely or at all. The Respondent has not annexed or identified any documents which it considers to be necessary to its defence. There is no indication whether all or any part of the medical report, attached to the claim, is agreed or if any part is disputed and the nature of the dispute.
[49] In essence, the Respondent has answered the claim by saying to the Applicant, ‘you say I am negligent but I say if you did suffer any injury as a result of falling it was caused by your own negligence and failure to exercise caution’. Is this sufficient to meet the requirements of the rule?
[50] A defendant has a duty to set out his case. A claimant is entitled to know the facts being relied upon to dispute the claim. A defence may be struck out in certain circumstances. These include: a defence that consists of a bare denial or otherwise fails to set out a coherent statement of facts; where a valid defence has not been made as a matter of law; some material fact or element of the defence is omitted; the facts set out do not constitute the offence alleged; where the relief being sought would not be ordered by the court and where the defence does not answer the claim being made.[3]
[51] Short defences making blanket denials without stating any positive case ought to be a thing of the past. The learned authors [4] of this statement also believe that where an allegation is denied it implies that the Defendant intends to put a positive case to the contrary. This is based on the specifics of their Rule 16.5 (UK) which is equivalent in material particular to Rule 10.5(3) of the CPR.
[52] The Respondent’s defence falls squarely within the above description. Apart from attributing negligence and lack of caution to the Applicant there is not even a hint of the factual circumstances on which the Respondent relies. To determine whether the defence raises issues which require resolution at trial, the Respondent must state its positive case to the contrary. Only the Applicant’s case is known. Her supporting affidavit strengthens her position. On the other hand the Respondent has not even filed an affidavit in response. This leaves the court totally in the dark.
[53] Ms. Vaughn’s contention that the Respondent was only required to provide a short version of the facts and not “written submissions” has a hollow ring in light of the fact that the defence is completely lacking in facts. If, as argued, the Respondent’s defence is negligence on the Applicant’s part, then the latter is entitled to know the factual basis for this.
[54] I do not share Ms. Vaughn’s opinion that Rule 10.7 provides the sole consequences for not setting out a defence. Certainly this is not what it says and the reason for importing the word “sole” into the rule has not been demonstrated. To my mind this rule contemplates a viable defence where there are some grounds or allegations but others have been left out. It does not speak to a situation where there is a blanket denial and no factual circumstances to support a different version of events, in breach of 10.5. The Rule also does not prohibit or preclude a defence from being struck out.
[55] After having considered this matter I am satisfied that the Defence filed on 27th March, 2017 is not in compliance with Rules 10.5 and 10.8 of the CPR.
(a) No reasonable ground for defending the claim./No real prospect of successfully defending the claim
[56] Kodilinye[5] expressed the opinion that summary judgment is not appropriate for negligence and personal injuries claims where facts are more likely to be disputed. Blackstone[6] made the point that there is nothing in principle to prevent a claimant from applying for summary judgment in claims seeking judgment for negligence but acknowledged that such cases invariably involve disputed factual issues so it was rare to find that there was no defence once liability was denied.
[57] These opinions are in consonance with the general rule that where there are disputed factual issues which require resolution at trial summary disposal is inappropriate. However, Rule 15.3 of the CPR stipulates the types of proceedings for which summary judgment is not available and personal injuries and negligence are not listed.
[58] As mentioned at paragraph [37] above, when there is a dual challenge the court firstly considers the statement of case under Rule 26.3 where there is no need to consider evidence. In this case whether the court uses this approach or poses the single question ‘whether or not the claim stands any real chance of success’ as suggested by Neuberger J, a stark reality must be faced. The Respondent has not revealed the factual circumstances of its defence. There are no coherent facts which amount in law to a valid defence or answer to the claim. Consequently one cannot say that there are factual issues which require further investigation at trial.
[59] No documents were attached to the Defence and even though Rule 15 allows the parties to file affidavit evidence, this was not pursued by the Respondent. In these circumstances it is not possible to glean the Respondent’s position.
[60] A useful comment was made by Akenhead J in Landfast (Anglia) Ltd. v. Cameron Taylor One Limited (supra). After rejecting an observation that pleadings should be considered, in some way, as being supplemented by witness statements, he said:
“21. It is still important that parties know where they stand as a matter of pleading and it is the witness statements which support the pleadings. They may, indeed, purport to go further than the pleadings, but, if they do so, then one would expect an application to amend the pleadings. The pleadings in the TCC, as elsewhere in courts up and down the country, are supposed primarily to set an agenda or terms of reference for the trial. Whilst the court will not be slow to allow amendments to reflect the true nature of the dispute between the parties unless there is a good reason not to allow such amendments, none the less the judgment ultimately in this case will be given by reference to the pleadings as they stand.”
[61] As it stands, this defence is not sufficiently detailed for the Applicant to meet it. It is not sustainable. Negligence is known to the law. To merely claim negligence without particulars will not suffice. There is nothing in it to persuade the court that the Respondent has a realistic prospect of successfully defending the claim.
[62] In Erskine Kellman v. Granville Bovell Civil Appeal No. 13 of 2015, the Court of Appeal made the point that the power to strike out is part of the court’s general case management powers but it is not imperative that the power be used. Based on the provisions of Rules 26.1(2)(4) of the CPR the court is empowered to make a number of orders before striking out. They were guided by a pre CPR case[7] from the CCJ where it was held that the correct approach is a balancing exercise and that all relevant facts and circumstances must be taken into account. That case listed the factors which a court should take into consideration in the exercise of the strike out discretion. The Court of Appeal stated that these factors are also applicable under CPR. It also stated that in carrying out this exercise a court must seek to give effect to the overriding objective.
[63] Broadly speaking, two circumstances in which a strike out order should be made were identified. These are: (1) When it is necessary in order to achieve fairness. (2) When it is necessary to maintain respect for the authority of the court’s order. According to the court “Fairness means fairness not only to the non offending-party but also to other litigants who are competing for the finite resources of the court.”
[64] The Court of Appeal also endorsed the approach taken by the Privy Counsel in Real Time Systems Ltd. v. Renraw Investments Ltd. [2014] UKPC6. The Board took the position that in dealing with an application to strike out it was for the court to decide the appropriate response. Lord Mance said:
“17. In that connection, the court has an express discretion under rule 26.2 whether to strike out (it “may strike out”). It must therefore consider alternatives, and rule 26.1.(1)(w) enables it to “give any other direction or make any other order for the purpose of managing the case and furthering the overriding objective”, which is to deal with cases justly. As the editors of The Caribbean Civil Court Practice (2011) state at Note 23.6, correctly in the Board’s view, the court may under this sub-rule make orders of its own initiative. There is no reason why the court, faced with an application to strike out, should not conclude that the justice of the particular case militate against this nuclear option, and that the appropriate course is to order the claimant to supply further details, or to serve an amended statement of case including such details, within a further specified period. Having regard to rule 26.6, the court would quite probably also feel it appropriate to specify the consequences (which might include striking out) if the details or amendment were not duly forthcoming within that period.”
[65] This means that summary judgment will be refused if there is some other compelling reason why the case should be disposed of at trial.[8]
[66] I will give consideration to whether an alternative solution is appropriate.
(c) Amendment
[67] Although Ms. Vaughn raised the issue of amendment, no application to amend was filed. The court has the power to allow amendment rather than striking out. This power must also be exercised in accordance with the overriding objective and this may militate against giving permission depending on the circumstances of the case.[9] In Christofi v. Barclays Bank plc [2000] 1 WLR 939, the court refused an application to amend. Chadwick LJ was of the view that the court would not be acting in accordance with the overriding objective to grant the application. A number of ‘infractions’ were identified and the court did not consider that it was a sensible way to conduct litigation and felt that it should be discouraged (Paragraphs B, C and D at page 949).
[68] Ms. Vaughn argued that litigants should be allowed to correct mistakes and make amendments which were necessary to resolve disputes, no matter how late and how much it delayed the resolution of the dispute. She referred the court to Gale v. Superdrug Stores PC [1996] 3 All ER 469 at 477-478 where Millett LJ commented on the principles which govern the court’s approach to an application to amend.
[69] Such an alarming right to amend and thereby cause delay must collide with the overriding objective which provides that dealing justly with a case includes saving expense, ensuring that it is dealt with expeditiously and fairly and allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. The Respondent’s omission is not a mere technicality. It is not merely and error of procedure. Failure to file a defence which accords with the requirements of the CPR cannot be seen in the same light as a minor error or mistake. I therefore reject the notion that the Respondent has any such blanket entitlement.
[70] In Gale v. Superdrug Stores plc, Millett LJ referred to a passage in the judgment of Bowen LJ in Cropper v. Smith [1884] UKLawRpCh 91; (1884) 26 Ch D 700 at 710-711 with which Bowen LJ in Shoe Machinery Co. v. Cutlan [1896] 1 Ch 108 at 112 agreed. He also referred to Clarapede & Co. v. Commercial Union Association (1883) 32 WR 262 at 263 where Brett MR added a proviso. The amendment should be allowed if it can be made without injustice to the other side. He however added that there is no injustice if the other side can be compensated by costs.
[71] In discussing what is required when dealing with a case justly, Alleyne J, in St. Philip Land Limited (in Liquidation) v. The Chief Surveyor 1132 of 2012 said [at 26] that “there can be no rule that a party ought to be granted leave to amend once there is no prejudice to the other party that cannot be compensated in costs.” In this regard, he referred to Zukerman on Civil Procedure: Principles of Practice 3rd ed., paragraph 7.51 where it was stated that that view was “untenable.” He also said [at 30] that the following passage from the said text demonstrated how the impact of justice might be considered.
“When the amendment advances an issue which relies on already pleaded facts, the court would be inclined to permit it. But an amendment would not be allowed if it is no longer possible for the respondent to defend himself against the fresh allegation….” (paragraph 7.52).
[72] Ms. Vaughn also referred the court to the following except:
“22. …[I]t seems to me inappropriate, certainly in the light of the Overriding Objective, to adopt too close a syntactical analysis of a pleading on an application like this where it is clear that a simple amendment might easily be made to clarify an ambiguity or abstruse plea. Furthermore, it seems ultimately to be fairly pointless for the court to be asked to strike out or dismiss a claim or a defence where it is clear essentially on the pleadings over all what the real issues between the parties are or are likely to be.”
(Per Akenhead J in Landfast (Anglia) Ltd. v Cameron Taylor One Ltd (supra)).
[73] I am unable to find any support in the above quotation for the matter which is currently before this court. No simple amendment is required to clarify an unclear or difficult to understand plea. The Respondent has not revealed any of the factual circumstances of its case. Without this it is impossible to conjure up what the issues are or are likely to be. Not having formulated its issues at all, there are no mistakes to be corrected.
[74] As stated previously any proposed case must be better than merely arguable and must carry some degree of conviction. Consequently, an amendment will only be permitted as an alternative to striking out if there is a real prospect of establishing the amended case (Charles Church Developments plc v. Cronin [1990] FRS 1; Savings and Investment Bank Ltd. v. Flicker (2001) The Times, 15 November 2001).[10]
[75] Having been alerted that an application to strike out was imminent, it was open to the Respondent to file the appropriate application to amend along with the proposed Amended Defence. This could have afforded the Respondent the opportunity to articulate its proposal and the Applicant the opportunity to respond. This was not done. In these circumstances this court is not prepared to speculate as to whether there is a real prospect of establishing an amended defence. Failure to reveal its defence goes to the core of this matter.
(d) Rectification
[76] The Respondent raised the question of the general power of the court to rectify matters under Rule 26.4. This rule is inapplicable to this matter (Erskine Kellman et al v. Granville Bovell per Goodridge JA).
CONCLUSION
[77] The Applicant was aged 58 years in 2012 when the incident occurred. The claim was filed three years later. It took another nineteen months for the Respondent to file a defence, which was not in compliance with Rule 10 of the CPR. The Respondent must have had some inkling of its case yet no effort was made to reveal the same. As a result the defence provided no assistance in identifying or narrowing the issues in dispute. In other words it failed “to set the agenda or terms of reference for trial.” The defence was also “lacking in substance” and the court was satisfied that the Respondent had no realistic prospect of successfully defending the claim.
[78] No reasons were advanced for the omissions but the Respondent must have known that a defence which did not adhere to the Rules of the CPR would inevitably have to be amended. This could have been done before the case management conference started but was not. The end result of seeking to amend thereafter is delay.
[79] The Respondent has done itself no favours by its handling of this matter from the start. Firstly, its tardy response in filing its defence and then the quality of the defence. However, I must acknowledge that it was accommodated and facilitated by the Applicant’s inaction in that judgment in default was not sought. Ms. Vaughn did point to some good faith on the Respondent’s part in that it had expressed an interest in resolving this matter out of court and that unsuccessful negotiations had taken place during 2019. Be that as it may; I do not get the impression that the Respondent approached this matter with a sense of either urgency or seriousness.
[80] The Respondent’s failure to make use of the benefit of Rule 15.5.(2)(a) to file affidavit evidence to put its position before the court is indicative of its refusal to help its own cause. I also wish to mention the court’s disapproval of a tactic used by the Respondent who, without leave or application, filed a new defence and counter claim after the court had given specific instructions to the Applicant about his application.
[81] Justice to both litigants is the paramount consideration. Prejudice to the Applicant is a factor to be weighed in the balance. The Respondent’s failure to properly set out its defence is in itself prejudicial to the Applicant because of the potential to delay the progress of the case. In this regard I refer to the Applicant’s affidavit where she deposed that she continued to suffer, severe pain and financial woes consequent upon her injury and that she was unable to access requisite treatment. Dealing justly with a case includes ensuring that it is dealt with expeditiously and fairly.
[82] In St. Philip Lands, Alleyne J also endorsed a passage from the judgment of Lord Griffiths in Ketteman v. Hansel Properties [1987] AC 189 at 280 A-H. Lord Griffiths made the point that the assessment of where justice lies should guide the judge’s exercise of his discretion. The passage is instructive and I will reproduce a portion of it. He said:
“[A] judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other…. Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently.”
[83] No application to amend was filed but the Respondent raised the issue of amendment. The court has given due consideration to this. The proposed Amended Defence has not been placed before the court for appropriate scrutiny consequently its real prospect of success cannot be meaningfully assessed. This failure is of the Respondent’s own making. In these circumstances there is no basis for giving the Respondent carte blanche to file whatever it chooses.
[84] Ideally, parties should be allowed to put their cases in order to resolve issues between them. This statement begs the question whether this matter should be further delayed to allow the Respondent to file an appropriate application and proposed pleadings. It is fully expected that such an application would not go unchallenged, consequently another hearing would have to be scheduled. The Respondent has made no effect to assist itself and no reason, good or otherwise, has been advanced for this state of affairs. In fact, the reason for its refusal to utilize Rule 20.1.(2) to put any proposed amended pleading before the court for consideration remains a mystery.
[85] In my opinion the balance of justice lies with the Applicant. No reason, compelling or otherwise, has been advanced to persuade the court that this matter should be delayed any further to accommodate the Respondent. A strike out is warranted. It will achieve fairness. It is not disproportionate and will give effect to the overriding objective.
[86] “To give summary judgment against a litigant on paper without permitting him to advance his case before the hearing is a serious step. The interests of justice overall will sometimes so require.” (Swain v. Hillman per Judge LJ at 96b).
DISPOSAL
[87] 1. The Respondent’s defence is struck out.
Master of the High Court
[1] Blackstone’s Civil Practice 2011 at 34.10
[2] Ibid 24.21.
[3] Ibid 33.7 and 33.8 for discussion.
[4] Ibid 33.7 and 26.7
[5] Kodilinye and Kodilinye. Commonwealth Caribbean Civil Procedure. 3rd edition page 64
[6] Blackstone. 34.18
[7] Barbados Rediffusion Services Ltd. V. Asha Mirchandani et al CCJ Appeal No. CV 1 of 2005
[8] Blackstone 34.46
[9] Ibid.33.11
[10] Ibid 33.11
] [Hide Context]
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