IN THE HIGH COURT OF JUSTICE BETWEEN TARANDAYE DILRAJ AND KHADARNATH GILDHARE NEW INDIA ASSURANCE COMPANY (TRINIDAD AND TOBAGO) LIMITED DECISION

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1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE HCA S 570 of 2001 BETWEEN TARANDAYE DILRAJ Plaintiff AND KHADARNATH GILDHARE NEW INDIA ASSURANCE COMPANY (TRINIDAD AND TOBAGO) LIMITED Defendants Before: Master Margaret Y Mohammed Appearances: Ms Mohanie Maharaj-Mohan for the plaintiff Ms Reeyah Chattergoon for the defendants Introduction DECISION 1. There are 2 applications for determination and both are dealt with separately. The plaintiff has approached the court to exercise its discretion to extend time to file her list of documents, bundle of documents and witness statements which she requires to prove her damages. The plaintiff s main reason for failing to do so in 2009 is the parties were negotiating a settlement. The defendants have opposed this application primarily on the grounds of the plaintiff s inordinate delay and prejudice. The issue is whether the plaintiff s delay in failing to comply with the court s order of 2009 is excusable in light of the history of this matter. For the reasons set out hereafter, I have dismissed the plaintiff s summons. Page 1 of 7

2 2. The defendants have applied to have the plaintiff s assessment of damages dismissed for want of prosecution under the inherent jurisdiction of the court and alternatively under Order 18 rule 19 of the Rules of the Supreme Court 1975 ( the RSC ) on the basis that it is an abuse of process, the delay has been inordinate, she has consistently not complied with orders of the court and it is not in the interest of the administration of justice to allow this matter to proceed. The plaintiff s response is she has waited more than 10 years to get to this stage and to dismiss her claim would be an injustice to her. The issue is whether the plaintiff s conduct in prosecuting her action has been so unacceptable by the court to deny her from continuing with her matter. I have decided that the defendant s application has merit. Therefore, the plaintiff s action is dismissed for want of prosecution or alternatively on the basis that it is an abuse of process to allow this action to continue in the civil court system. Should the court grant the plaintiff an extension of time to file her list of documents, bundle of documents and witness statements? 3. I have not been persuaded by the reasons set out in the affidavit in support of the plaintiff s application to grant the extension of time. Order 3 rule 5 of the RSC gives the court a very wide discretion in applications for extensions of time to file documents. The approach by the courts in this jurisdiction in granting extensions of time was set out by Jamadar JA in The National Lotteries Control Board v Michael Deosaran 1 at paragraph 53 where he stated that the court considers all the circumstances of the case with the overriding objective that justice be done... The learned judge then set out the following factors to be considered where there has already been a determination of a trial on the merits and judgment given. These factors while not exhaustive, in my opinion, are also relevant in other circumstances. Some of the factors are : (a) The length of the delay and whether it is inordinate (the longer the delay the less likely a court would find that there is reason to extend); (b) The reasons for the delay and whether there is an acceptable explanation for it; the cogency of the explanation should be greater the longer the delay; (c) The promptness of the application for the extension and the assessment of promptness should be made in relation to the default and the reasons for it but could also include all other relevant circumstances; 1 Civ Appeal 132 of 2007 Page 2 of 7

3 (d) The degree of prejudice to the defendant caused by the delay and that may result if the extension is granted. The greater the prejudice the less likely a court would find that there is reason to extend; (e) Special cases or exceptional circumstances; (f) Whether the party seeking the extension has generally complied with the rules and any orders and directions; and (g) The interest of the administration of justice not limited to justice between the parties to the litigation but includes larger considerations of the administration of justice. 4. Having considered the aforesaid factors in the context of this action I refuse the plaintiff s application for the following reasons: (a) I agree with the defendants that the respective delays of 21 months for failing to file the list and bundle of documents and 17 months for failing to file and serve the plaintiff s witness statements and/or summaries are significant and inordinate. Directions were given by the Master on July 21, 2009 for the parties to file and serve their respective list and bundle of documents on or before October 19, 2009 and witness statements and or summaries on or before February 15, 2010 yet the application for the extension of time was only filed on July 25, The matter came up before the court on several occasions during the 21 and 17 months respectively yet the plaintiff did not make any oral applications to extend time to comply with the directions in order to protect her interests. (b) The application for the extension of time in relation to the deadline to file the documents was not made promptly since it was made 21 and 17 months respectively after the default. (c) I do not accept the explanation proffered by the plaintiff that the directions were not complied with since the parties were negotiating a settlement of the damages as reasonable. Much has been said by both parties about the negotiations of the settlement of damages. Whatever form it took, I am of the view that it is totally unacceptable for the plaintiff to allow 2 years to elapse in negotiating a settlement of damages where the issue of liability was determined in Further, it is precisely because this matter is 10 years old that it was the duty of the plaintiff s attorney to ensure that all negotiations took place with some degree of vigour and that if little was happening to take steps for the court to proceed with the matter. For the plaintiff to lay blame at the feet of the defendants is to abdicate her responsibilities as the party who engaged the court s process in the first place. Page 3 of 7

4 (d) This is not a special case. This matter is a negligence action arising from a motor vehicle accident in November The nature of the personal injuries and special damages pleaded are not unusual and the ongoing medical treatment of the plaintiff does not make this an exceptional circumstance. (e) The plaintiff cannot say that she has been denied the opportunity to proceed with the assessment of damages. According to the court s records on 8 occasions between the period July 2005 and February 2011 the assessment of damages was fixed to proceed and on all occasions the plaintiff failed to seize every opportunity for various reasons from negotiating a settlement, requesting a further medical examination, awaiting medical reports (some 8 years after the accident) and her attorney being involved in other matters. (f) The delay has prejudiced the defendants. The plaintiff indicated since April 2005 that she had additional documents to provide to the defendants and only 6 years after disclosing this to the court she has annexed the additional information to her application for an extension of time. I agree with the defendants that they will be handicapped in investigating the new information especially since this accident took place in (g) To allow this application would undermine confidence in the administration of the civil justice system. The court is always hesitant to shut out a plaintiff. However the court must be cognisant that there are other litigants in the civil justice system who are being delayed with their actions while this plaintiff was given ample opportunity to proceed with her action. To grant an extension of time where there has been a delay of 21 and 17 months respectively will not instil overall confidence in the court s ability to manage its resources efficiently and effectively. There must be an end to litigation and matters must be completed within a reasonable time to ensure that other litigants are dealt with in a timely manner in the civil justice system. Should the plaintiff s action be dismissed for want of prosecution or abuse of process? 5. While it does not mean that if a court has found that there has been an abuse of process it necessarily follows that the action should be dismissed for want of prosecution I can find no reason for allowing this matter to continue to occupy invaluable time in the civil justice system after some 10 years. 6. A court has an inherent jurisdiction, on an application by a defendant to dismiss an action for want of prosecution. In November 2010 in this jurisdiction Mon Desir J in Page 4 of 7

5 Keith Dhanoolal and ors v F.V. Nelson 2 summarised the factors laid down in the leading case of Allen v Sir Alfred Mc Alpine & Sons Ltd 3 and refined by Lord Diplock in Birkett v James 4 to be considered in such applications as: (a) The length of the delay. (b) The reasons for the delay. (c) Compliance with the rules of procedure. (d) Whether the defendant has suffered or is likely to suffer any prejudice. (e) Any possible prejudice to the plaintiff if the action is dismissed. (f) The possibility of achieving a fair trial. (g) Availability of witnesses. (h) Whether the default was intentional or contumelious. (i) The defendant s conduct or delay (if any). (j) Interest of justice that grossly inordinate and inexcusable delays should cease. 7. Under Order 18 rule 19 of the RSC a court may at any stage of the proceedings strike out an action on any of the following grounds: (a) The action discloses no reasonable cause of action or defence, as the case may be; (b) It is scandalous, frivolous or vexatious; or (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is otherwise an abuse of process of the court. 8. The effect of allowing the defendant s application is the plaintiff s action is brought to an end. It is therefore not surprising that the court considers similar factors if an action should be struck out for abuse of process or dismissed for want of prosecution 9. When I apply these factors to the circumstances of this action my reasons for dismissing the action for want of prosecution or alternatively for abuse of process are as follows: (a) As stated previously the plaintiff s reason for the delay of 21 and 17 months respectively in failing to comply with the court s orders is unsatisfactory. 2 HCA 1753 of (1968) 1All ER (1977) 2 All ER 801 Page 5 of 7

6 (b) The plaintiff has had ample opportunity to prosecute her claim and has failed to seize the opportunities presented. (c) If the plaintiff is prejudiced by not having her action continue she cannot blame anyone but herself for this unsatisfactory outcome. (d) The defendants will be prejudiced since they are now confronted with new information. (e) The plaintiff has not complied with several peremptory orders. She failed to file her list and bundle of documents on or before October 19, 2009 and witness statements and/or summaries on or before February 15, On June 15, 2011 the matter was adjourned to deal with any of the plaintiff s applications on July 26, 2011 but the plaintiff filed a voluminous application on the day before July 25, The plaintiff filed her submissions in support of the July 25, 2011 application on November 4, 2011 but failed to serve same on the defendants as ordered. (f) Whilst the plaintiff has not complied with the court s directions the defendants complied by filing their list and bundle of documents on October 19, 2009 yet this did not act as a catalyst for the plaintiff to do same. (g) It is not in the interest of the administration of justice to allow a plaintiff to wilfully flout its orders. (h) The plaintiff s overall conduct has been unsatisfactory at best. Conclusion 10. It is a pity that more than 5 years after the introduction of the Civil Proceedings Rules 1998 ( the CPR ) matters filed under the RSC still continue to meander their way through the civil justice system. It is particularly disturbing that the new proactive approach in dealing with CPR matters has not been applied in the conduct of RSC matters. Old habits are difficult to change and 5 years is a long time for a litigant in Trinidad and Tobago who is seeking a remedy in our civil justice system but if the court is to instil any confidence in litigants that their matters would be dealt with in a timely manner, it must be firm and not tolerate inordinate delay. Page 6 of 7

7 Order 11. The plaintiff s summons filed July 25, 2011 is dismissed. 12. The defendants summons filed October 4, 2011 is allowed. The plaintiff s assessment of damages is dismissed for want of prosecution and abuse of process. 13. The plaintiff to pay the defendants the costs of the summons filed July 25, 2011 and October 4, 2011 respectively certified fit for advocate attorney to be taxed in default of agreement. Dated this 31 January, Margaret Y Mohammed Master (Ag) Page 7 of 7