Andrew Smith v First Caribbean International Bank (Bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Winder, CJ
• Judgment Date: 08 February 2024
• Docket Number: 2020/CLE/gen/00662
• Court: Supreme Court (Bahamas)

BETWEEN

Andrew Smith

Sophia Smith

Claimants

and

First Caribbean International Bank (Bahamas) Limited

First Defendant

and

Insurance Management (Bahamas) Limited

Second Defendant

Before

Hon. Chief Justice Sir Ian R. Winder

2020/CLE/gen/00662

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Beryn Duncanson for the Claimants

Michelle Deveaux and Berchel Wilson for the First Defendant

Viola Major for the Second Defendant

DECISION

Winder, CJ

1 This is my decision on the application of the First Defendant (FCIB) for Judgment against the Claimants following upon their alleged non-compliance with the case management directions order of 17 August 2023. The case management directions were made in the nature of an unless order.

2 The background to this matter is more fully set out in my 9 August 2023 written decision. That written decision concerned an application by the Claimants for relief from sanctions and for new case management directions. In granting the Claimants the relief sought, the Court gave new case management directions on 17 August 2023. These were the third such trial directions given by the Court in this action. The alleged non-compliance with those directions are the subject of this application.

3 The 17 August 2023 case management directions provided, in part, as follows:

• 1. The Defendants' Expert Reports in response to the Claimants' expert evidence shall be filed and served on or before Monday 18 ^th September 2023.

• 2. The Claimants shall provide the Specific Disclosure listed in the Schedule attached to this Order and shall file an Affidavit verifying the Disclosure, on or before Monday 18 ^th September 2023.

  • 2.1 Unless the Claimants comply with the direction at paragraph (2) above, the Claimant's Statement of Claim and Writ of Summons filed herein on 29 ^th July 2022 shall be struck out and this action stand dismissed, with costs to the Defendants to be taxed if not agreed.

• 3. The Claimants shall file and serve an Agreed Bundle of Documents on or before Friday 13 ^th October 2023. If necessary the parties may file and serve bundles of Non-Agreed documents on or before Friday 13 ^th October 2023.

• 4. The parties shall serve and exchange Witness Statements on or before Monday 20 ^th November 2023.

4 The FCIB complaint is captured in its written submissions as follows:

4. In summary the action which was begun in July 2020 has been the subject of 3 case management orders, two of which were unless orders which the Claimants have breached:

• • The Claimants did not comply with the first CMC order of 21 June 2021 and took no steps for almost a year.

• • The Claimants did not comply with the second CMC Order of 31 May 2022 which included an Unless Order provision with the sanction that upon failure to file Expert Witness Statement the Claimants' Statement of Claim would be struck out and Action dismissed.

• • The Claimants obtained relief from sanction by judgment of 19 July 2023.

• • The Claimants did not comply with the third CMC Order of 17 August 2023 which included an Unless Order provision with the sanction that upon failure to file provide specific disclosure and file an Affidavit Verifying the disclosure the Claimants' Statement of Claim would be struck out and Action dismissed.

• • The Claimants have also not complied with paragraphs 3-6 of the case management directions in preparation for the trial dates of 24 – 26 February 2024.

5. Paragraph 2 of the Order dated 17 August 2023 [TAB 1] directed the Claimants to file an Affidavit Verifying the disclosure and to provide such disclosure by 18 September 2023 and included the unless order sanction of strike out of the Statement of Claim and dismissal of the Action for failure to do so.

6. The Claimants have not complied with the unless order terms and did not file an Affidavit Verifying the disclosure by 18 September 2023.

19. The Order of 17 August 2023 provided at paragraph 4 for the filing of Witness Statements by 20 November 2023 and at paragraph 4.1 recites the CPR29.11 sanction for failure to do so.

20. The Claimants have failed to file and serve Witness Statements on 20 November 2023 and have in fact have not filed and served any Witness Statements for witnesses of fact to date.

21. FCIB's Witness Statements were filed under sealed envelope on 20 November 2023 pursuant to CPR29.7(2).

22. FCIB therefore seeks an order enforcing the sanction which attaches pursuant to CPR29.11 if the matter is to go to trial.

5 The Second Defendant (IM) supports the application of FCIB.

6 CPR 26.5 provides:

26.5 Judgment without trial after striking out.

(1) This rule applies where the Court makes an...