Quillen et Al v Harney, Westwood & Riegels

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Satrohan Singh, J. A.
• Judgment Date: 22 June 1999
• Neutral Citation: VG 1999 CA 6
• Docket Number: No. 10 of 1998
• Date: 22 June 1999

Court of Appeal

Singh, J.A.

No. 10 of 1998

Quillen et al

and

Harney, Westwood & Riegels

Appearances:

Mr. Andrew Neish, Mr. Terrence Neale with him for the appellants

Mr. Gerard Farara Q.C., Mr. Michael Fay with him for the respondents.

Practice and procedure - Dismissal of action — Judicial discretion — Improper exercise.

Facts: The respondent was sued by the appellants for damages for fraud and negligence. The respondent alleged that the appellant's claim was statute-barred. The court ordered that the limitation issue as it related to negligence be heard as a preliminary issue. When heard, the judge found against the appellants on the issue and ordered that the claim in negligence be dismissed.

Held: The appellants appeared in person before the judge having been abandoned by their legal advisers and were to a certain extent ignorant of legal procedures. In exercising his discretion, the trial judge erred in principle and consequently failed to exercise a proper judicial discretion. Court is therefore entitled to substitute its own discretion for that of the trial judge. Appeal allowed.

Satrohan Singh, J. A.

1 On April 14, 1997, the appellants sued the respondent for damages for fraud and negligence. By their defence filed on June 30, 1997 the respondent alleged that the appellants' claims were statute-barred. On the summons for directions filed in the matter and upon the application of the respondent, Benjamin, J ordered that the Limitation issue as it related to the tort of negligence be heard as a preliminary issue. This was done, and, on July 23, 1998, the learned trial judge found against the appellants on the issue and ordered, inter alia, that the claim in negligence by the first two appellants be dismissed with costs.

2 The appellants have appealed from this order of the learned judge.

THE ISSUE BEFORE THE JUDGE

3 The issue before the judge was one for the exercise of his judicial discretion, whether or not he should dismiss the appellants' suit as it related to the tort of negligence, because the appellants failed, in breach of a rule of the court, to file a reply specifically disputing the respondent's limitation plea. The appellants contend that their failure to file the reply was due to the abandonment of them by their legal representative and their ignorance of these legal procedures. They contend that they had an answer to the limitation plea based on concealment from them by the respondent of material facts relevant to the cause of action of negligence and that time should only begin to run from the date when they discovered the true position. In any event, they contend through Mr. Neish that despite the lack of the reply, because their statement of claim gave facts in its particulars of fraud and negligence, which would be the facts to be amplified in the proposed reply to negative the limitation plea, the trial judge ought to have exercised his discretion in their favour and allow them time to file the reply. They contend that no injustice would have been done to the respondent.

4 The appellants contend that the point taken against them was a technical one based on the rules of pleading and, given that the technical objections could be cured by further particularization or by service of a reply, the learned judge should, before taking the very draconian step of summarily dismissing their claims in negligence, have afforded them an opportunity further to plead their case.

THE LAW

5 O 33, rule 4 of the Rules of the Supreme Court, 1970 provides:

6 “If it appears to the court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.”

7 and 018, r. 19 states:

• “(1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that –

  • (a) it discloses no reasonable cause of action or defence, as the case may be; or

  • (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 the process of the court;

8 and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

9 There is controversy between Mr. Neish and Mr. Farara as to which of the aforementioned rules is applicable to this matter. Mr. Neish...