National Bank of Anguilla Ltd v Carty

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Rawlins, M.
• Judgment Date: 21 December 2001
• Neutral Citation: AI 2001 HC 8
• Docket Number: 84 of 1996
• Date: 21 December 2001

High Court

Rawlins, M.

84 of 1996

National Bank of Anguilla Limited

and

Carty

Appearances:

Ms. Yvette Wallace for the plaintiff/respondent.

Mr. Patrick Paterson for the defendant/applicant.

Practice and procedure - Abandonment of action — Order for mutual discovery between parties in application by plaintiff for summary judgment — Defendant sought to have cause deemed abandoned under provisions of Order 34 r. 11(1) — Whether Order 34 r. 11(1) applicable in the case — Finding that it was operative and applicable in the absence of waiver by the defendant and inasmuch as a period of more than one year had elapsed since filing of the last document — Cause deemed abandoned and incapable of being revived by virtue of operation of Order 34 r. 11(1).

Rawlins, M.

1 It is hardly surprising that Order 34, rule 11(1) of the Eastern Caribbean Supreme Court Rules, 1970, as amended, (hereinafter “the 1970 Rules) has given rise to much litigation recently. In fact, during the hearings which have come in the wake of the introduction of the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000, it has been a procedure upon which much store has been laid for bringing finality to many cases that have long languished un-prosecuted in the civil justice system.

2 The Background to this Application

3 In the case that is before the court on this application, the cause was instituted by way of a Writ of Summons, specially indorsed, dated 14th October 1996, and filed on 16th October 1996. Appearance was entered on behalf of the defendant on 25th October 1996. On 5th November 1996, an Application for Summary Judgment was made on behalf of the plaintiff. Solicitors for the plaintiff filed an Amended Writ on 2nd January 1997, and a Defence was filed on 30th January 1997. The plaintiff filed a Reply on 31st January 1997, and a Summons for Directions on 26th June 1997. The Order thereon was made by Saunders, J. on 26th September 1997, and the said Order was filed on 14th October 1997. The Order provided for mutual discovery between the parties. It also provided for the inspection of documents, and paragraphs 5 and 6 stated:

“5. That the matter be fixed for hearing on 10th and 11th December, 1997.

6. That the estimated length of trial be two (2) days.”

4 Solicitors for the defendants filed a List of Documents on 15th January 1998. After that date, no document was filed until the Firm of Keithley Lake & Associates filed a Notice of Change of Solicitor on 1st June 2000, by, indicating their appointment to act for the plaintiff in the matter. The Affidavit of Ms. Kelva Richardson, which is referred to at paragraph 5 herein, indicates that the last possible proceedings in this matter may have been in January 1998.

5 The case first came before me at Status Hearings, which were held during the week of 19th February 2001. It was adjourned to Case Management Conference, which was scheduled for 6th April 2001. On 3rd April 2001, in compliance with the Case Management Directions, Solicitors for the plaintiff filed a Case Management Brief. On 4th April 2001, they also filed a List of Documents, an Affidavit Verifying List of Documents and a List of Authorities, which included copies of each authority. When Ms. Wallace appeared for the plaintiff and Mr. Patterson for the defendant at the Case Management Conference on 6th April 2001, the case was adjourned to a further Case Management Conference to be held on 12th July 2001. Case Management Directions were then issued, intending to elicit compliance by the defendant.

6 Solicitors for the defendant filed, simultaneously, on 27th June 2001, by way of Summons, an application which sought, inter alia, to have the cause herein deemed abandoned under the provisions of Order 34, rule 11(1) of the 1970 Rules. Solicitors for the defendant also filed the documents in compliance with the Case Management Conference Order of 6th April 2001. An Affidavit in support of the Application of 27th June 2001, deposed by Shearon Perkins, Legal/Accounts Clerk with Solicitors for the defendants was filed on 10th July 2001. In that Affidavit, Ms. Perkins premised the abandonment of the case on the grounds that the Reply was filed in the matter on 31st January 1997, Summons for Directions on 26th June 1997, and the Order on the Summons for Directions was entered on 14th October 1998 (sic), but since that time, no request for hearing has been filed, and no further proceedings taken or other documents filed such as are referred to in Order 34, rule 11(1)(a) of the 1970 Rules.

7 An Affidavit in Opposition to the Application was deposed by Kelva Richardson, Legal and Office Administrator with the Firm of Solicitors for the plaintiff and filed on 11th July 2001. In that Affidavit, the deponent stated, inter alia, that while no formal Request for Hearing or Record was filed in the matter, the Order on Summons for Directions fixed the matter for hearing on the 10th and 11th December 1997. She stated, further, that the matter was fixed on the Call Over List, and Counsel for both sides had consented to the fixing of the matter notwithstanding the absence of these formalities and, moreover, the case was subsequently fixed for trial on 28th and 29th January 1998 and again on 28th June 1999, but was not heard on those dates. She further deposed that on this last mentioned date, the matter was vacated, due to the absence of the Judge from the jurisdiction. Thereafter, she stated, the Parties entered into certain discussions with a view to avoid further litigation. The relevant Court Civil Causes Lists were exhibited to the Affidavit.

8 In an Affidavit in Response, deposed by Shearon Perkins and filed on 12th July 2001, the deponent in the main denied that there was an agreement that the case would have been tried without the formal Request for Hearing or the Record being filed. That the Summons for Directions made provision for mutual discovery and inspection of documents, but the plaintiff had failed to provide a list of documents or to produce any documents for inspection, and further, the discussions between the parties were without prejudice.

9 Submissions by Counsel

10 The submissions of Mr. Patterson at the hearing of the Application on 12th July 2001, on behalf of the defendant/applicant were premised on the matters deposed by Ms. Perkins in her affidavits. He submitted that in the premises of the failure to seek the request for hearing, not only has the matter become deserted, because there has at no stage been an application for reviver, or even consent for reviver, but it is also abandoned by virtue of Order 34, rules 11(1)(a) and (b). As authorities, he referred to the cases Lewis v. St. Hillaire and Another (1995) 48 W.I.R. 124 (CA of the Eastern Caribbean and Privy Council), and Barbuda Enterprises Ltd, v. Attorney General of Antigua and Barbuda (1993) 42 W.I.R. 183.

11 He submitted, further, that the placing of the matter on the Call Over List, and fixing it for trial in the absence of a formal request for hearing does not amount to waiver, because for any such waiver to apply, there must be clear or expressed agreement or consent to waive. He cited as authority for this the case Gustavus Frett v. Idalia Davies and Haldane Davies, Civil App, 2 of 1995, (British Virgin Islands). He also submitted that if waiver is to apply to oust the application of abandonment, it will have to be clearly and distinctly made, and supported by such evidence that the court will feel satisfied that that was what the defendant intended. That, in his view, is not present in this case.

12 In her submissions, Ms. Wallace referred to the Affidavit of Richardson. She emphasized, in particular, that the Order on Summons for Directions fixed the matter for hearing on 10th and 11th December 1977, The matter was placed on the Court's Call Over List on two occasions. Trial dates were fixed for 18th and 29th January 1998, and then on 28th June 1999, Ms. Wallace further submitted that Order 34, rule 11 does not therefore apply because the matter has been fixed for trial. Admittedly, she stated, no record was filed,

13 but all of the Parties were present when the matter was fixed on all occasions, and would have been aware of this. In her view, the defendant, by participating in that process and by his failure to object to the matter being placed on the trial list, had waived his right, or consented to the continuation of the matter. She submitted that by his failure to object, he could not now rely on such a draconian rule. In her view, Order 34, rule 11 and the authorities thereon do not apply in this case since this matter had been placed on the trial list, and the Parties had entered into negotiations in a manner that prevented the matter from proceeding to trial.

14 In response, Mr. Patterson further submitted that the negotiations were without prejudice negotiations, and cannot be prayed in aid in relation to this application. He submitted further, that the contention that the defendant waived his rights by failing to object to the matter being placed on the trial list does not take into account that once an action becomes ripe for hearing and the plaintiff has not set it down for hearing, it cannot be revived by anything short of action for revival. This is such a case. It became ripe for hearing, but the plaintiff did not set it down, there was no consent for revival in accordance with the Rules.

15 Does either Order 34, rule (11)(1)(b) or (c)...