Andrew Smith v First Caribbean International Bank (Bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Chief Justice Sir Ian R. Winder
• Judgment Date: 19 July 2023
• 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

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Beryn Duncanson and Lashanda Bain for the Claimants

Michelle Deveaux and Berchel Wilson for the First Defendant

Viola Major for the Second Defendant

DECISION

Introduction

1 This is my decision on an application for relief from sanctions and case management directions made by the Claimants (“the Smiths”) by summons filed on 8 June 2023 (the “Relief Summons”). The First Defendant (“FCIB”) and the Second Defendant (“IMBL”) both oppose the Relief Summons.

2 Having regard to the particular circumstances of this case I will set out the Relief Summons in full:

LET ALL PARTIES CONCERNED attend before His Lordship the Honourable Sir Ian Winder, Chief Justice of the Supreme Court of the Commonwealth of the Bahamas, in chambers [or remotely via Zoom/Meeting online to be advised] at the Supreme Court Hansard Building, in chambers, on Wednesday the 19 ^th July A.D. 2023, at 10 o'clock in the forenoon, or so soon thereafter as Counsel may be heard on an application on behalf of the Plaintiffs for an Order for Directions and other relief pursuant to the provisions of Order 31 A, Rule 8(a) and Rule 25 of the Supreme Court (Amendment) Rules 2004 (RSC) [“hereinafter the Old Rules”], and/or in the alternative now Part V, Rules 26.1-26.9 (inclusive) under the Supreme Court Civil Procedure Rules 2022 (as amended by the Supreme Court Civil Procedure Rules 2023) [hereinafter “the New Rules”], and the inherent jurisdiction of the Court for an Order that:-

1. There be Directions for a new timetable with dates for Trial.

2. That the Plaintiffs do have relief from sanction for any manner of breach whether technical or material breach that this Court shall deem them to have committed in their attempts to comply with this Court's Unless Order dated 31 ^st May 2022 by defective filing and/or serving of documents, such that time be hereby enlarged and/or extended for the purposes of Filing and Serving of all requisite documents and/or for the performance of any act founding wanting in the Plaintiffs' attempted compliance with this Honourable Court's Unless Order of 31 ^st March 2022,

3. AND THAT the Grounds for this Notice of application herein be (i) Order 31A Rule 25 of the Old Rules and/or (ii) Rules 22.4-22.9 (inclusive) of the New Rules and (iii) the Affidavits of Joshua Leonard Forbes sworn 2 ^nd June 2023 and otherwise filed herein; and (iv) The Inherent Jurisdiction of this Honourable Court; and (v) The Overriding Objective of the New Rules (Rules 1.1 1.2 & 1.3); and (vi) upon such further grounds as Counsel might advise and this Honourable Court Permit.

Evidence

3 The Smiths' application is supported by the affidavit of Joshua Leonard Forbes filed on 8 June 2023 (the “Forbes Affidavit”). The Defendants principally rely upon the affidavit of Samovia Miller filed on 3 July 2023 (the “Miller Affidavit”) which was made in response to the Forbes Affidavit. IMBL also relies on an affidavit of service of Ganito Saunders filed on 3 August 2022 and a supplemental affidavit of service filed on 6 June 2023.

Background

4 The relevant background may be summarized as follows.

5 The Smiths are the mortgagors of #22 Ashwater Drive, Devonshire Subdivision, Block 10, Unit 22, in Freeport, Grand Bahama (the “Subject Property”). FCIB is the mortgagee of the Subject Property pursuant to an Indenture of Mortgage dated 26 November 2003 entered into with the Smiths. IMBL is an insurance broker and agent connected with a policy of insurance that was formerly in place respecting the Subject Property which it says lapsed on 5 September 2018 and was not renewed.

6 The Smiths commenced these proceedings on 23 June 2020 by specially indorsed Writ of Summons alleging, in outline, that:

i) in or around September 2019, the Subject Property sustained significant damage due to Hurricane Dorian estimated at a total loss. FCIB negligently and in breach of contract failed to pay insurance premiums to IMBL with the result that the insurance policy on the Subject Property was cancelled without notice to the Smiths.

ii) FCIB and IMBL negligently and in breach of contract failed to: (a) advise the Smiths that insurance premiums had not been paid; (b) notify the Smiths that there was any default and/or expiry of the insurance policy over the Subject Property; (c) effect the renewal of an adequate homeowners insurance policy for the Subject Property; or (d) act with reasonable care and skill to ensure the Smiths' insurance needs were clearly met.

iii) In the circumstances, the Smiths are entitled to general damages, damages for emotional distress, aggravated damages, special damages comprising travel and relocation expenses, interest at commercial rates, and costs on the indemnity basis.

7 After the close of pleadings, the Smiths did not refer the matter to case management. IMBL caused the Registrar to fix a case management conference. IMBL filed a notice of referral to case management on 11 December 2020 and, in about January 2021, applied to the Listing Office for a hearing date.

8 A case management conference took place before me on 21 June 2021 at which all parties were present by their counsel. At that case management conference, I gave standard case management directions (the “First Case Management Directions”). Among other things, I ordered that:

i) each party was to file and serve a list of documents by 6 August 2021.

ii) mutual inspection of the documents contained in the parties' lists of documents was to take place by 21 August 2021.

iii) the Smiths' expert report was to be filed and served by 30 August 2021.

iv) the Defendants' expert reports in response were to be filed and served by 29 October 2021.

v) witness statements were to be filed by 14 January 2022.

vi) a pre-trial review was to be held on 31 May 2022 at 10:00 am.

vii) trial was to take place on 13, 14 and 15 July 2022.

9 The Smiths failed to comply with any of the First Case Management Directions. The Defendants filed their lists of documents on 6 August 2021 and 21 July 2021, respectively. Dissatisfied with the Smiths' failure to comply with the First Case Management Directions, IMBL took out a summons on 17 May 2022 (just before their appearance at the pre-trial review) seeking an unless order.

10 A pre-trial review took place before me on 31 May 2022 at which all parties were again present by their counsel. After hearing from counsel, I vacated the trial dates of 13 to 15 July 2022, issued new case management directions timetabling the matter to trial and acceded to IMBL's application for an unless order.

11 The unless order that I made on 31 May 2022 (the “Unless Order”), which was filed on 20 June 2022, was in the following terms:

IT IS HEREBY ORDERED AND DIRECTED that the Case Management Directions Ordered on 21 ^st July 2021 are hereby modified and extended as follows:

1. The Plaintiffs shall file and serve their List of Documents on or before 10 June 2022.

2. There shall be an inspection of the Plaintiffs' documents contained in their List of Documents on or before 30 ^th June 2022.

3. The Plaintiffs' Expert Report shall be filed and served on or before 22 ^nd July 2022.

4. Unless the Plaintiffs comply with each of the aforementioned case management directions (1) through (3), the Plaintiffs' Writ of Summons, filed herein on 23 ^rd July 2020 shall be struck out and this action shall stand dismissed with costs to the Defendants, to be taxed if not agreed.

5. The Second Defendant shall have its costs of the application for an unless order in any event, to be taxed if not agreed but not paid until the substantive Action is determined.

6. In the event the Plaintiffs comply with directions (1) through (3) above, the following directions shall apply.

7. The Defendants' Expert Reports in response shall be filed and served on or before 22 ^nd September 2022.

8. The parties' Experts shall meet on or before 28 ^th October 2022 and produce a Joint Expert Report on or before 18 ^th November 2022.

9. The Plaintiffs shall file and serve a Bundle of Pleadings and a Bundle of Agreed Documents on or before 5 ^th January 2023. If necessary, the parties may file and serve Bundles of Non-Agreed Documents on or before 5 ^th January 2023.

10. The parties shall file and exchange Witness Statements on or before 24 ^th January 2023.

11. Any party wishing to file a Hearsay Notice shall file and serve same on or before 17 ^th February 2023.

12. The Plaintiff shall file an Agreed Statement of Facts and Issues on or before 24 ^th March 2023. If the parties cannot agree a statement of facts and issues, then each party shall file their own Statement of Facts and Issues on or before 24 ^th March 2023.

13. A further Pre-Trial Review Hearing shall take place on 31 ^st May 2023 at 9:00 am.

14. The Trial of the matter shall take place on 18 ^th, 19 ^th, 20 ^th July 2023.

[Emphasis added]

12 On 10 June 2022, the deadline for compliance with paragraph 1 of the Unless Order, Counsel for the Smiths uploaded to the Court (via the eDocument Delivery Form on www.bahamasjudiciary.com), and emailed to opposing counsel, an unfiled list of documents in purported compliance with the Unless Order.

13 Counsel for the Smiths' email to opposing counsel, attaching the unfiled list of documents, stated:

Dear Counsel,

See attached List of Documents filed today and hereby served upon yourselves by the Plaintiffs pursuant to the Unless Order of 31 ^st May 2022.

Yours truly,

Beyrn Duncanson

[Emphasis added]

14 Nearly two weeks later, on 22 July 2022, the deadline for compliance with paragraph 3 of the Unless Order, Counsel for the Smiths sent an email at...