CI Civil Aviation Auth v Island Air Ltd

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 03 October 2003
• Court: Grand Court (Cayman Islands)
• Date: 03 October 2003

Grand Court

(Smellie, C.J.)

CAYMAN ISLANDS CIVIL AVIATION AUTHORITY

and

ISLAND AIR LIMITED

R.D. Alberga, Q.C. and K. Myers, Crown Counsel, for the plaintiff;

R.J. McMillan for the defendant.

Cases cited:

(1) Allen v. McAlpine (Sir Alfred) & Sons Ltd., [1968] 2 Q.B. 229; [1968] 1 All E.R. 543; (1968), 112 Sol. Jo. 49, dictum of Lord Salmon referred to.

(2) Birkett v. James, [1978] A.C. 297; [1977] 2 All E.R. 801; (1977), 121 Sol. Jo. 444, applied.

(3) Fazio v. Hyatt Britannia Corp. Ltd., Grand Ct., Cause No. 576 of 1996, October 11th, 2000, unreported, distinguished.

(4) Grupo Torras S.A. v. Bank of Butterfield Intl. (Cayman) Ltd., 2001 CILR 9, referred to.

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

(6) Omni Secs. Ltd. (No. 3), In re, 1998 CILR 275, applied.

(7) Rath v. C.S. Lawrence & Partners, [1991] 1 W.L.R. 399; [1991] 3 All E.R. 679, referred to.

(8) Stephenson v. Hunza Invs. Ltd., 1988–89 CILR N–4, distinguished.

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

(10) Trill v. Sacher, [1993] 1 W.L.R. 1379; [1993] 1 All E.R. 961, referred to.

(11) Weldon v. NealELR(1887), 19 Q.B.D. 394, distinguished.

(12) Williams v. Bob Soto”s Diving Ltd., 1992–93 CILR 318, distinguished.

(13) Willis v. Earl BeauchampELR(1886), 11 P.D. 59, referred to.

Legislation construed:

Grand Court Rules, 1995 (Revised): O.18, r.19: The relevant terms of this rule are set out at para. 35.

O.20, r.5(1): The relevant terms of this paragraph are set out at para. 10.

r.5(2): The relevant terms of this paragraph are set out at para. 20.

r.5(5): ‘An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.’

Limitation Law (1996 Revision) (Law 12 of 1991, revised 1996), s.11: ‘An action to recover a sum recoverable by virtue of any instrument of a legislative character shall not be brought after the expiration of six years from the date on which the cause of action accrued …’

Civil Procedure-dismissal for want of prosecution-delay-even if post-writ delay of two years combined with maximum limitation period pre-writ delay inordinate and inexcusable, must also substantiate allegations of resulting prejudice-if delay allegedly prejudicial to business interests, should consider earlier application for dismissal or order for plaintiff to proceed expeditiously

Civil Procedure-pleading-amendment-amendment allowed to recover further sums accrued post-writ arising from same cause of action-if no prejudice to other party, desirable to settle all disputed matters in single trial

Civil Procedure-pleading-amendment-time-barred claims-leave granted to amend under Grand Court Rules, O.20, r.5(2) and (5) to rely on document already mentioned in pleadings to prove already-pleaded case-new cause of action may be introduced if arises from same or substantially same facts as already-pleaded claim and no injustice to other party

The plaintiff brought an action against the defendant to recover unpaid fees due under the Aircraft (Landing and Parking Fees) Regulations.

The defendant had used the plaintiff”s airports since 1993 without paying fees under the Aircraft (Landing and Parking) Regulations. On April 3rd, 1995, the defendant unsuccessfully requested a waiver of past and future fees on the grounds that it provided an essential service to the Islands. In later correspondence with the Minister for Aviation, the defendant claimed that the Minister made representations leading it to believe that the fees would indeed be waived.

The plaintiff, however, commenced the present proceedings on April 2nd, 2001, seeking payment. After the defendant”s reply on June 24th, 2001, in which it relied on the six-year statutory limitation period to avoid that portion of the claim accrued prior to April 2nd, 1995, no further action was taken until the defendant filed the present summons on June 10th, 2003, seeking to strike out the plaintiff”s application, or summary judgment against it. The plaintiff responded by seeking an amendment to claim the unpaid fees accrued since 2001, and also to

amend its reply, to rely on the defendant”s request for waiver in 1995 as an acknowledgement of the debt then owed, in order to challenge the limitation period defence.

The plaintiff submitted that (a) although it was now to be pleaded as an acknowledgement of the debt, the 1995 letter was mentioned in the original statement of claim and thus was already part of the factual basis of the pleaded case; (b) the written acknowledgement of debt was merely proof of the already-pleaded claim that the limitation period had not expired and it did not therefore introduce a new cause of action; (c) the defendant had acquiesced in the delay and benefited by retaining the money and paying no interest on it; and (d) summary judgment should not be granted as it contested the factual premises of the defendant”s claims.

The defendant submitted in reply that (a) the finality in resolving the claim it faced would be compromised by the plaintiff”s proposed amendment to include fees accrued since the commencement of the present proceedings in 2001; (b) nor should the plaintiff be permitted to rely on the letter as an acknowledgement of the debt owed in 1995, as that would enable it to circumvent the statutory limitation period; (c) the plaintiff”s post-writ delay of two years, when combined with the full limitation period pre-writ delay, was inordinate and inexcusable; (d) furthermore, the defendant had suffered prejudice as its business interests were compromised by the delay in bringing the proceedings and therefore the claim should be struck out; and (e) alternatively, the plaintiff”s claim should be summarily dismissed as it was unsustainable and, in light of the defences pleaded, bound to fail.

Held, making the following rulings:

(1) The plaintiff would be allowed to add to its statement of claim a claim for the unpaid fees accrued since the commencement of these proceedings in 2001, as this later sum had arisen from the same cause of action as the original claim, i.e. the defendant”s non-payment of the statutory landing fees. The defendant had failed to show that it would suffer any prejudice as a result of this amendment, and it was therefore desirable that all the plaintiff”s claims be decided in a single trial, to avoid wasteful litigation (paras. 13–15).

(2) The plaintiff would also be allowed to amend its reply to the defence, to plead the letter as an acknowledgement of the debt accrued prior to April 1995. Although amendments which sought to defeat limitation defences were not generally permitted, this amendment was granted under the Grand Court Rules 1995, O.20, r.5(2) as it was just in the circumstances, the amendment merely enabling the plaintiff to support its already-pleaded claim that the limitation period had not expired and did not therefore introduce a new cause of action. Furthermore, reference had been made to the letter in the plaintiff”s statement of claim and it was thus already part of the pleaded case. Even if this amendment introduced a new cause of action after the expiry of the limitation period, the court would have had discretion under the Grand Court Rules, O.20, r.5(5) to allow it,

as it clearly arose from the same, or substantially the same, facts as the already-pleaded claim (paras. 17–18; paras. 21–26).

(3) Even if the plaintiff”s post-writ delay of two years, when combined with its full statutory limitation period pre-writ delay, did constitute an inordinate and inexcusable delay, the action would not be struck out as the defendant failed to show that it had suffered prejudice as a result of that delay. If, as it claimed, the entry of the proceedings on its books had been prejudicial to its business interests, it could have applied to the court earlier for dismissal of the action or for directions to the plaintiff to proceed expeditiously. As it had not done so and there was no suggestion that it was unable to raise financing or was otherwise hampered in the operation of its business by the contingent liability of the litigation, its assertion of prejudice was unsubstantiated and its application for striking out would be dismissed (paras. 47–49).

(4) Furthermore, as the factual bases of the defendant”s defences were disputed by the plaintiff, summary dismissal of the action was inappropriate. Although some examination of the facts was necessarily involved in the disposal of a summary judgment application, as this case would have necessitated a mini-trial of the evidence, summary judgment would not be granted, as it would only have been appropriate had the important facts not been in dispute (paras. 55–56).

1 SMELLIE, C.J.: The plaintiff in this matter sues the defendant for unpaid fees claimed as due under the Aircraft (Landing and Parking Fees) Regulations, in respect of the defendant”s aircraft operating into...