Powell v Port Auth

• Jurisdiction: Cayman Islands
• Judge: (Foster, Ag. J.)
• Judgment Date: 27 March 2009
• Court: Grand Court (Cayman Islands)
• Date: 27 March 2009

Grand Court

(Foster, Ag. J.)

POWELL

and

PORT AUTHORITY and ATTORNEY GENERAL

Mrs. K. Reid for the plaintiff;

M.S. Baldwin for the first defendant;

D. Schofield, Senior Crown Counsel, for the second defendant.

Cases cited:

(1) Baker v. Bowketts Cakes Ltd., [1966] 1 W.L.R. 861; [1966] 2 All E.R. 290, referred to.

(2) Kleinwort Benson Ltd. v. Barbrak Ltd., [1987] A.C. 597; [1987] 2 W.L.R. 1053; [1987] 2 All E.R. 289; [1987] 2 Lloyd”s Rep. 1, followed.

(3) Stevens v. Services Window & General Cleaning Co. Ltd., [1967] 1 Q.B. 359; [1967] 2 W.L.R. 939; [1967] 1 All E.R. 984, referred to.

(4) Waddon v. Whitecroft-Scovill Ltd., [1988] 1 W.L.R. 309; [1988] 1 All E.R. 996, followed.

Legislation construed:

Grand Court Rules 1995, O.6, r.8(2): The relevant terms of this paragraph are set out at para. 8.

Civil Procedure-writ of summons-extension of validity-when extension sought after validity of writ and limitation period expired, court to consider if satisfactory explanation for delay-if adequate explanation then to determine whether ‘good reason’ for extension, taking into account balance of hardship to parties-failure of attorney to seek legal aid certificate in time insufficient reason

The defendants sought an order to discharge or set aside an ex parte order extending the validity of a writ filed by the plaintiff.

The plaintiff was injured at the premises of her employer, the first defendant. She sought compensation for her injuries and consulted an attorney, who assisted her in applying for legal aid in respect of a personal injury claim. The legal aid was initially limited to issuing a letter before action and any additional steps in the matter had to be separately approved. A letter before action was never sent but instead a writ was issued by the attorney, on behalf of the plaintiff, one day before the limitation period in the action expired. Before serving the writ the attorney sought an extension of the plaintiff”s legal aid but did not do this until two weeks before the expiry of the writ and the certificate extending the legal aid was not issued until after the writ had expired. An ex parte application was then made and granted to extend the validity of the writ, pursuant to O.6, r.8(2) of the Grand Court Rules, and the writ was served on the first defendant a week later. In response, the defendants applied to discharge or set aside the order.

They submitted that the time spent seeking legal aid was not a reason for extending the validity of the writ, nor was it an excuse for failure to seek an extension before its expiry.

The plaintiff submitted in reply that the court should take into account the particular nature of the Cayman legal aid system and the fact that she had to apply herself for aid was a sufficient explanation for the delay.

Held, granting the application of the defendants:

(1) The ex parte order extending the validity of the writ would be discharged. If the application for extending the validity of a writ were made when its validity and the limitation period for the action had expired, the court would have to be satisfied that there was a satisfactory

explanation for the failure to apply for an extension in time. Moreover, if a satisfactory explanation were produced, the court would then consider whether there was a ‘good reason’ for extending the validity of the writ and in exercising its discretion the court would take into account all the circumstances, including the balance of hardship to the parties of agreeing or refusing to extend its validity (para. 17; para. 26).

(2) The delay in obtaining a legal aid certificate until after the expiry of the writ was not an acceptable reason for failure to seek an extension of time. It was the responsibility of the plaintiff”s attorney to seek extension of the legal aid, as she would have known that she would have to provide an opinion to the Chief Justice or another judge of the Grand Court before any extension would have been granted. The failure to seek the legal aid until two weeks before the expiry of the writ was not attributable to the legal aid system, but rather was the fault of the plaintiff”s attorney, and so consequently would not excuse the delays in applying to extend the validity of the writ. The plaintiff had failed both to provide a sufficient excuse for the delay in applying for extension and also to show that the circumstances provided a good reason to extend it and the order would therefore be discharged. Since the defendants were protected by the expiry of the limitation period, the plaintiff would simply be left with the option of pursuing proceedings against her attorney for her failures in the matter (paras. 22–26).

1 FOSTER, Ag. J.: This an application by the defendants to discharge or set aside an ex parte order made on December 11th, 2008, extending the validity of the plaintiff”s writ, which had been issued on May 29th, 2008 and therefore had expired on September 29th, 2008.

2 The plaintiff was injured when she slipped on some stairs at the premises of her employer, the Port Authority. She actually gives different dates for the accident in her correspondence but in her affidavit filed in support of her application for extension of the writ in December 2008, she says that the accident was on May 30th, 2005. The relevant limitation period within which to bring a claim in respect of such an accident is three years, and therefore...