Baldwin Martin Troy Day v Henry Merren
| Jurisdiction | Cayman Islands |
| Judge | Justice Kawaley |
| Judgment Date | 26 November 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 40 OF 2019 |
The Hon. Justice Kawaley
CAUSE NO. 40 OF 2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Application for declaration of invalidity of purported service of expired writ after end of limitation period-cross-application-for renewal of writ-plaintiff a litigant in person who failed to comply with the time limits because of ignorance of the law-whether good reason shown for failing to effect service during validity of writ-whether failure to apply for renewal before expiry of writ satisfactorily explained-Grand Court Rules Order 6 rule 8
The Plaintiff in person (assisted by Mr Harold Davis as his McKenzie Friend)
Mr Paul Keeble of Hampson and Company on behalf of the Defendant
On March 24, 2016, a road accident occurred involving a car driven by the Plaintiff and a car driven by the 1 st Defendant which was owned by his wife, the 2 nd Defendant. On March 14, 2019, 10 days short of three years after the accident, the Plaintiff issued a Writ against the Defendants 1 seeking damages for personal injuries alleged to have been sustained by him by reason of the 1 st Defendant's negligence. The Writ was filed just over a week before the three year limitation period expired 2.
Under Grand Court Rules (“GCR”) Order 6 rule 8(1) (b), a writ is valid in the first instance for 4 months. The Plaintiff's Writ herein accordingly expired on Saturday July 13, 2019. 3 The Defendants were not purportedly served until July 29, 2019, more than two weeks after the validity of the Writ had expired and over four months after the limitation period for the Plaintiff's claim had expired.
By a Summons dated July 30, 2019, the Defendants applied to set aside service of the Writ and/or to declare that service had not been validly effected. On September 13, 2019, I gave directions for the Plaintiff to apply to extend the validity of the Writ within seven days. By Summons dated September 20, 2019, the Plaintiff applied for an Order to extend the validity of the Writ, which Summons was supported by his Second Affidavit dated October 21, 2019.
The two applications came on for hearing on November 7, 2019. At the end of a short hearing I refused the Plaintiff's application to retrospectively extend the validity of Writ and granted the Defendants a declaration that the Wit had not been validly served on them on July 29, 2019. This was essentially because the Plaintiff had failed to establish a good reason for failing to serve in time and/or to satisfactorily explain why the application for an extension was not made in time. These are the reasons for that decision. It is appreciated that the Plaintiff may find much of this legalistic Judgment difficult to digest. I have attempted to summarise the key findings in a more accessible form in paragraphs 30–31 below.
The relevant legal principles governing applications to renew writs after their expiry were fully and clearly set out in Mr Keeble's clear and cogent Outline Submissions on behalf of the Defendants for the September 13 and November 7 hearings. Although the Plaintiff was unable to challenge the technical legal arguments, I scrutinised them critically before both the initial and subsequent hearings to ensure there was no point which could be taken in his favour.
It being common ground that the Writ was served after its validity had expired, the critical statutory rule was the following paragraph in GCR Order 6 rule 8:
“(2) Subject to paragraph (3) 4, where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 4 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow.”
Although it appears that the rule confers an unfettered discretion on the Court to permit extensions of the time for making the application to renew the writ to a date after its expiry, the case law explains that the discretion is in fact a narrow one when the effect of the extension would be to deprive the defendant of the benefit of a limitation defence. In summary:
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(a) good reason must be shown by the Plaintiff for not serving the Writ while it was valid;
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(b) the failure to apply for an extension before the writ expired must be satisfactorily explained; and
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(c) (if good reason has been shown for the failure to serve during the Writ's validity), the Court must balance the prejudice each party would suffer if the renewal application is refused. If good reason for the failure to serve is not established, this more flexible balancing of competing justice considerations does not take place.
These principles are derived from the leading English pre-CPR case of Kleinwort Benson Ltd v Barbrak Ltd [1987] 2 All ER 289, as applied by the Cayman Islands
courts. The House of Lords there described the situation where an application to renew a writ was being made after it had expired as a “category (3)” caseIn Davidson and others v Moulam and others [ 2014 (1) CTLR 99], the Cayman Islands Court of Appeal (Chadwick P, Mottley and Campbell JJ.A concurring) held:
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(a) “ it is necessary for the applicant to satisfy the court that there is a good reason for granting an extension of the validity of the writ…in category (3) cases the applicant for an extension has an extra difficulty to overcome, in that he must also give a satisfactory explanation for his failure to apply (at paragraph 24, citing Lord Brandon in Kleinwort Benson);
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(b) “Having reached the conclusion that there was no good reason to extend the validity of the writ, the judge did not need to go on to conduct a balance of hardship analysis: that is made clear by the qualification to the Kleinwort Benson principles, introduced by both Waddon v. Whitecroft Scovell Ltd 5… and Baly 6… which are referred to in Lord Browne-Wilkinson's judgment in Dagnell 7…” (at paragraph 30).
In Weavering Fixed Income Macro-Fund v Ernst and Young [ 2014 (1) CILR 296], Quin J opined as follows:
“52 The best summary of principles can be found at The Supreme Court Practice 1999, at para. 6/8/6. … I regard them as representing the law in relation to this issue in the Cayman Islands…”
His judgment then helpfully sets out in full the relevant commentary on Order 6 rule 8 found in the 1999 White Book. The following passages are pertinent for the purposes of the present case:
“(3) It is not possible to define or circumscribe what is a good reason. Whether a reason is good or bad depends on the circumstances of the case.
Normally the showing of good reason for failure to serve the writ during its original period of validity will be a necessary step to establishing good reason for the grant of an extension…(4) Examples of reasons which have been held to be good are:
(a) a clear agreement with the defendant that service of the writ be deferred;
(b) impossibility or great difficulty in finding or serving the defendant, more particularly if he is evading service…
(5) Examples of reasons which have been held to be bad are:
(d) carelessness…
(7) A writ will not normally be renewed so as to deprive the defendant of the accrued benefit of a limitation period… Possible exceptions are the good reasons in 4(a) or (b), above, or very sharp practice by the defendants which has deceived the plaintiff into inactivity…”
In summary, there is no fixed legal definition of what does or does not amount to a “good reason” for not serving within the initial validity period. The question of what is a good reason for not serving and, where the application itself is made late, what is a satisfactory explanation for the delay “depends on the circumstances of the case”. On the other hand, when a plaintiff seeks permission to renew a writ in circumstances where a new claim would be potentially time-barred, the Court's discretion is a narrow one and the Court is not entitled to take a lenient view of the procedural irregularities which have occurred.
The Plaintiff's Second Affidavit advanced the following brief explanation of why service was not effected within the four month period when the Writ was valid:
“5. Mr Henry Merren have [sic]… been trying to avoid the consequence of his actions from March 14, 2016 until this very day…He further more avoided the writ of summons issue [sic] against the 1 st and 2 nd defendant from the inception until the day it expired. It is my belief that the insurance company and their attorney that both defendant the Istand 2 nd shared made them aware that the summon [sic] was in force during the period of 14 th of March until the 14 th of July and as a result they avoided the service upon themselves. Weather [sic] they, the 1 st and 2 nd defendant was in Cayman or overseas or staying in some other place. I do not know. The only thing I know is that on many occasions even when the light was on at 15 Simmons Way no person answer the door bell, nor did any person cared [sic] enough to answer the knocks on the door even when some cars was parked in the yard.”
The issue of evading service was identified by me at the September 13, 2019 hearing as something which the Plaintiff needed to address. The Plaintiff offered no explanation of why he was unable to apply to extend the validity of the Writ before it had expired. It is possible that I did not direct, or did not effectively direct, the Plaintiff's...
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