Newton v VRL (Nassau) Ltd et Al (d/b/a Super Club Breezes Bahamas)
| Jurisdiction | Bahamas |
| Judge | Bain, J. |
| Judgment Date | 09 February 2011 |
| Court | Supreme Court (Bahamas) |
| Docket Number | CLE/GEN No. 378 of 2008 |
| Date | 09 February 2011 |
Supreme Court
Bain, J.
CLE/GEN No. 378 of 2008
Mr. Raynard Rigby for the plaintiff.
Ms. Lakeisha Strachan for the defendant.
Civil practice and procedure - Defence — Plaintiff application to strike out defendant's defence — Failure to comply with Unless Order.
(1) By Summons filed 7 January 2011 the plaintiff made application pursuant to Order 31A Rule 20 (1) of the Rules of the Supreme Court (Amendment) Rule 2004, for an Order to strike out the defendant's Defence filed herein on the ground of the defendant's non-compliance with the Case Management Order and for any consequential order that may be deemed just and for costs to be paid to the plaintiff in any event to be taxed if not agreed.
(2) In response to the Summons an Affidavit in Response was filed by Adriana Knowles, a partner at Harry B. Sands, Lobosky & Company In the Affidavit Ms. Knowles explaining the delay in complying with the Order for Directions made 7 May 2010
(3) The Summons was heard at the pre-trial conference on 21 January 2011. At the hearing it was alleged that the defendant had not filed its Witness Statement or Expert Witness Statement. The defendant admitted that the Witness Statements were not filed. The defendant at that hearing indicated to the Court that the defendant would need time to have the report of the Expert Witness filed and noted that the matter may have to be adjourned.
(4) The defendant's List of Documents had been filed on 30 December 2010 and inspection had taken place on 14 January 2011.
(5) After hearing both parties the Court made the following unless Order.
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“1. Defendant to file Witness Statement and Expert Witness Statement by 28 January 2011.
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2. Defendant to file Bundle of Documents by 28 January 2011.
If documents are not filed by 28 January 2011 the Defence would be struck out.”
(6) The Court gave directions that the trial of this matter would proceed as scheduled on 8, 9 and 10 February 2011.
(7) At the trial of this matter on 8 February 2011 counsel for the plaintiff raised a preliminary point that the defendant had not filed the Bundle of Documents by 28 January 2011. Instead on 28 January 2011 the defendant filed a Supplemental List of Documents and a Bundle of the Supplemental Documents. This list consisted of two items being
- Photos of the locus in quo and 2. Check list for Frank Hanna Clearing Company.
(8) These documents were additional to the documents contained in the List of documents filed by the defendant on 30 December 2010.
(9) In response counsel for the defendant admitted that she did not file the documents contained in the List of Documents filed 30 December 2010 because she was of the opinion those documents dealt with quantum of damage and not to liability. Counsel maintained that as the trial had first to deal with the issue of liability and then if liability is proved the issue of quantum of damage would be dealt with. Additionally counsel for the defendant alleged that she was trying to save costs by not having all the documents in the list produced.
(10) The Order given at the Case Management hearing with respect to filing of Bundle of Documents was that the agreed Bundle of Documents and Bundle of Pleadings were to be filed by 10 January 2011.
(11) The defendant has not complied with the Unless Order by filing the Bundle of Documents on 28 January 2011. The defendant has not made application was made for an extension of time to comply with the Order pursuant to Order 31A Rule 18 (2) (b) or for relief of the sanctions imposed by the Order pursuant to Order 31A Rule 25.
(12) The issue to be decided is whether as a result of the defendant's failure to comply with the Unless Order the Defence is struck out.
(13) Previously the court held that when an unless order was made and there was failure to comply the other side may move directly to enforce the sanction.
(14) In Samuel v. Linzi Dresses Ltd. [1981] QB 115 the Court of Appeal overruled the dicta of Whistler, Wallis and King and held that where the court makes an “unless” order or condition order that a party is required to do an act within a specified time but the order to do that act was not complied with within the time specified, the court nevertheless retains the power to extend the time within which such act should be complied with.
(15) In Samuel v. Linzi Dresses Ltd. Roskill LJ stated at page 126:–
“In my judgment therefore, the law today is that a court has power to extend the time where an “unless” order has been made but has not been complied with, but that it is a power which should be exercised cautiously, and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not.”
(16) As noted earlier, there was no application by the defendant to extend the time to comply with the Order of 21 January 2011.
(17) In Re Jokai Tea Holdings Ltd. [1993] 1 All ER 630 Sir Nicholas Browne-Wilkinson VC held that:–
“In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an unless order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.”
(18) Counsel for the defendant maintained that they have complied with the Order of 21 January 2011 by filing a Supplemental List of Documents and the filing of Documents contained in that Supplemental List. Counsel maintained that they were not going...
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