Bodden v Thompson

• Jurisdiction: Cayman Islands
• Judge: (Williams, J.)
• Judgment Date: 23 November 2011
• Court: Grand Court (Cayman Islands)
• Date: 23 November 2011

Grand Court, Civil Division

(Williams, J.)

BODDEN

and

THOMPSON

K. Broadhurst for the plaintiff;

C. Flanagan for the defendant.

Cases cited:

(1) Cayman Hotel & Golf Inc. v. Resort Gems Ltd., 1992–93 CILR 372, referred to.

(2) Cayman Islands Civil Aviation Auth. v. Island Air Ltd., 2003 CILR 483, referred to.

(3) Charlesworth v. Relay Roads Ltd., [2000] 1 W.L.R. 230; [1999] 4 All E.R. 397, not followed.

(4) Clarapede & Co. v. Commercial Union Assn.(1884), 32 W.R. 262, referred to.

(5) Ketteman v. Hansel Properties Ltd., [1987] A.C. 189; [1987] 2 W.L.R. 312; [1988] 1 All E.R. 38, referred to.

(6) Ladd v. MarshallWLR[1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745, referred to.

(7) Swain-Mason v. Mills & Reeve LLP, [2011] 1 W.L.R. 2735; [2011] All E.R. (D.) 131; [2011] EWCA Civ 14, referred to.

(8) Swiss Bank & Trust Corp. Ltd. v. Iorgulescu, 1994–95 CILR 149, referred to.

(9) Worldwide Corp. Ltd. v. GPT Ltd., [1998] All E.R. (D.) 667; [1998] EWCA Civ 1894, not followed.

Civil Procedure-hearing-adjournment-court to consider whether justice requires that claim can be argued properly and other party compensated in costs-when liability for personal injury admitted and future care costs to be incurred, may allow adjournment for plaintiff to adduce expert evidence of quantum without having to satisfy heavy onus

The plaintiff brought an action for damages for personal injuries caused in 2001 by the defendant”s negligent driving.

The defendant pleaded guilty to the offence of dangerous driving. In 2003 the plaintiff issued a writ; in his statement of claim he pleaded that he faced substantial future medical expenses, which were still being assessed, full particulars of which would be provided prior to trial. The parties came to an agreement on liability in 2005 when it was ordered by consent that, inter alia, there be judgment against the defendant for a sum to be assessed at trial. In the same year, the Grand Court (Levers, J.) ordered the plaintiff to serve all medical evidence on which he intended to rely within a specified time-frame later in 2005.

By the commencement of the trial in October 2011, the court had received expert evidence on whether future medical care was needed but not as to its cost. No application was made at the pre-trial conference to adduce such evidence or at the review hearing to vacate the hearing to enable such evidence to be obtained and filed. The plaintiff”s amended schedule of damages and future loss contained mostly unsubstantiated estimates for the treatment. The defendant”s counter schedule of damages highlighted that there was no expert evidence to substantiate the figures and that as a consequence the cost of future medical care could not be proved. On Day 1 of the trial, the plaintiff indicated that he wanted to adduce expert evidence relating to the quantum of future care costs-the issue was adjourned until a later stage of the trial. On Day 3, the plaintiff attempted to introduce two new expert witnesses who had produced reports based on written material given to them, without having seen the plaintiff. Again, the issue was adjourned, but the court noted the fact that the matter would, in any event, have to be adjourned part-heard because of the plaintiff”s criminal appeal in respect of his conviction for dangerous driving. By the time the issue of the late admission of evidence came to be adjudicated, it transpired that the plaintiff not only wanted to submit the

reports of the two new expert witnesses but also sought an adjournment for the witnesses to see the plaintiff, prepare new reports and then give evidence.

The defendant submitted that the application should be denied on the grounds that it was too late, unjustified and prejudicial. In particular, he submitted that prejudice had been caused as a consequence of his approach to questioning the witnesses, which was based on his view of the effect of the absence of any evidence as to quantum. He submitted that the court”s enforcement of its case management powers placed a ‘heavy onus’ on the plaintiff to show why there should be an adjournment.

Held, granting the application:

An adjournment would be granted to enable the plaintiff to obtain and produce the evidence and the court would hear the parties in relation to the making of directions which flowed from this decision and costs. The courts regarded the issue of the admissibility of late evidence as being analogous to an application to amend pleadings prior to the making of a final order. In exercising its discretion to grant the adjournment, the court would consider whether justice required that a claim which was not futile, frivolous or proposed in bad faith could be argued properly and if the other party could be compensated in costs for any loss suffered because of the application to admit late evidence. The court would take into account that: (i) the matter could not be concluded until the outcome of the criminal appeal; (ii) the evidence required was on an already pleaded, discrete and not new part of the claim; (iii) the defendant would not be precluded from meeting any new evidence; (iv) there was no evidence supporting the defendant”s submission that prejudice had been caused as a consequence of his approach to questioning the witnesses; in any event, the court would likely look favourably on any application to recall a witness to test him...