Ishmael Brathwaite v 1. Michael Smith; 2. Bryon Smith

• Jurisdiction: British Virgin Islands
• Judge: MATTHEW J Ag.
• Judgment Date: 17 July 2002
• Neutral Citation: VG 2002 HC 38
• Court: High Court (British Virgin Islands)
• Date: 17 July 2002
• Docket Number: CLAIM No. BVIHCV 2002/0036

IN THE HIGH COURT OF JUSTICE (CIVIL)

Before: His Lordship Justice Matthew (Acting)

CLAIM No. BVIHCV 2002/0036

BETWEEN

Ishmael Brathwaite

Claimant/Respondent

and

1. Michael Smith

2. Bryon Smith

Defendants/Applicants

Appearances:

Mr. T. Neale for the Claimant

Mr. J.S. Archibald Q.C.; Miss M. Matthew and Miss A. Smith for the Defendants

KEYWORDS

Application for stay of proceedings in an action for damages for assault and battery until the conclusion of criminal case arising from same incident — Stay of proceedings is matter for the discretion of the Court — Injured party may pursue his civil action independent of Crown pursuing criminal remedies — Little prejudice to Respondent if matter is stayed where pleadings seem to be complete — Stay granted until after criminal matter is completed.

MATTHEW J Ag.

1 On February 28, 2002 the Claimant filed a claim form seeking damages from the Defendants for assault and battery committed upon him on February 7, 2002. The Defendants acknowledged service on April 11, 2002 and filed their defence on June 18, 2002.

2 On April 29, 2002 the Defendants filed a notice of application that the proceedings be stayed until the conclusion of the criminal matter; and that the Respondent pays the cost of the application. I find the latter request a strange one indeed.

3 The grounds of the application are:

• (1) there is a criminal case pending that flows from the same incident as this civil matter;

• (2) that the matter went before the Magistrate's Court for the first time on April 19, 2002 and was adjourned to May 22, 2002;

• (3) that the matter is not expected to be heard on that date;

• (4) the Applicants have spoken to the police about the Respondent being charged;

• (5) that after the criminal matter has ended, the civil matter, if the Respondent is so inclined, can be revisited.

4 The Defendants filed an affidavit each on April 26, 2002 in support of their application. The Respondent opposes the application.

SUBMISSIONS OF COUNSEL

5 Learned Queen's Counsel for the Applicants informed the Court that the criminal matter had begun before the date of the hearing and the Respondent gave his evidence in full at a preliminary inquiry and that the proceedings had been adjourned to July 31, 2002.

6 Counsel submitted that the Court ought to exercise its discretion to stay the proceedings and prayed in aid of the overriding objective of the Civil Procedure Rules 2000; and in particular the need for proceedings to be dealt with expeditiously.

7 Counsel did not have any objection to what Mr. Neale's skeleton says because the matter is all in the discretion of the Court.

8 Counsel submitted that it was not the intention of the Rules to have the Defendants arguing two cases, one in criminal and one in civil action, at the same time.

9 Counsel urged that the criminal proceedings would, or ought to be, ended in October 2002 and...