Abbey International Insurance Company Ltd v Knowles

JurisdictionBahamas
CourtSupreme Court
JudgeMalone, J.
Judgment Date11 Jan 1982
Docket NumberNo. 794 of 1975

Supreme Court

Malone, J.

No. 794 of 1975

Abbey International Insurance Co. Ltd.
and
Knowles
Appearances

Mrs. S. Wells for the plaintiff

Mr. D. Bethell for the defendant

Practice and procedure - Costs

Practice and procedure - Dismissal of action — Appeal against dismissal order — Timing of appeal

Malone, J.
1

This is an appeal from the Registrar. It arises out of the Registrar's decision made on the 27th January, 1981 when he rejected the plaintiff's objections to the taxation of the bill of costs in the action and ruled that the defendant was entitled proceed to with the taxation as the action stood dismissed.

2

For a better understanding of the learned Registrar's ruling, it is necessary to relate the background facts to the proceedings before him. On the summons for directions in the action it was inter alia ordered on the 20th June, 1979 that the action be set down for trial within 90 days. By the 31st October, 1980 there had not been compliance with that order. On that day, application was made on behalf of the defendant by summons to have the action dismissed for want for prosecution. No evidence was filed by the plaintiff for the consideration of the Registrar when he heard that summons on the 4th November, 1980. Indeed, the Registrar's record of those proceedings, which I consider I am entitled to look at, although this appeal is a rehearing, discloses that the objection taken by Counsel on behalf of the plaintiff to the application was that

“The failure to set down was an oversight on the part of our Chambers and we have every intention of setting it down and getting a trial date before Christmas.”

3

The learned Registrar considerately, I think, having regard to the act that the period of time ordered for the setting down of the fiction had long passed and that the plaintiff had not put before him any worthwhile evidence to explain the circumstances it might rely on as an excuse, did not dismiss the action straightaway. Instead, he made an “unless order” in the following terms:

  • “1. The plaintiff set this action down for trial within 30 days from today;

  • 2. in the event that the plaintiff fails to set this action down for trial as aforesaid, the proceedings on the part of the plaintiff shall stand, dismissed; and

  • 3. the costs of this application shall be the defendant's in any event.”

4

That order was filed on the 16th December, 1980. The delay in filing the order does not, however, in my view, relieve the plaintiff from the obligation to obey the order made as it is not an order of a kind to render obedience contingent on service of the order. The precise point is dealt with in Script Phonography Company Limited v Gregg (1890) 59 L.J., Ch, 406, which is reported in the English and Empire Digest Repl Vol. 30, p 165 as follows:

“When an order has been made in chambers dismissing an action unless the next step is taken by plaintiff within a specified time, and plaintiff does not take that step within the specified time nor appeal against the order, the order takes effect and the time for taking the step cannot subsequently be extended, the action having become dead, notwithstanding that the order has not been drawn up or served upon the plaintiff before it became operative.”

5

It therefore follows that if within 30 days from the 4th November, the plaintiff failed to set the action down, it stood dismissed. Accordingly, the sole issue on this appeal is whether or not the learned Registrar was right in holding as he must have done on the 27th January, 1981, when he ruled that the defendant was entitled to proceed with the taxation of the bill of costs in the action, that the plaintiff had failed to comply with the order made on the 4th November, 1980.

6

Order 34, r 3 of the Rules of the Supreme Court, 1978 sets out the steps that must be taken to set down an action for trial. Essentially the steps are two in number. Namely:

1
    the making of a request to the Registrar that the action may be set down for trial at the place specified in the order made on the summons for directions; and 2. the delivery to the Registrar of the two bound bundles as required by the rule. The bundle to serve as the record being stamped and indorsed in accordance with the provisions of the rule.
7

On the 4th November, 1980 a request to have the action set down for trial was made on behalf of the plaintiff but no bundles were delivered to the Registrar until the 19th December, 1980. By Notice of Appeal filed on the 28th January, 1981, five grounds appeal are listed. The several grounds, to my mind, are...

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