Williams v Bob Soto Diving Ltd

• Jurisdiction: Cayman Islands
• Judge: (Smellie, Ag. J.)
• Judgment Date: 13 April 1993
• Court: Grand Court (Cayman Islands)
• Date: 13 April 1993

Grand Court

(Smellie, Ag. J.)

WILLIAMS

and

BOB SOTO DIVING LIMITED

D. Murray for the plaintiff;

A. McLaughlin for the defendant.

Cases cited:

(1) Allen v. McAlpine (Sir Alfred) & Sons Ltd., [1968] 2 Q.B. 229; [1968] 1 All E.R. 543.

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

(3) Department of Transport v. Smaller (Chris) (Transport) Ltd., [1989] A.C. 1197; [1989] 1 All E.R. 897, observations of Lord Griffiths applied.

(4) Executive Securities Corp. v. Bland Invs. S.A., 1992–93 CILR 286.

(5) MacDonald v. Executive Air Servs. Ltd., Grand Ct., Case No. 24/85, February 16th, 1989, unreported.

(6) Rath v. C.S. Lawrence & Partners, [1991] 1 W.L.R. 399; [1991] 3 All E.R. 679, dicta of Farquharson and Slade, L.JJ. applied.

Civil Procedure-dismissal for want of prosecution-delay-defendant to show likely prejudice or unfair trial to justify dismissal-if long delay before writ caused prejudice necessary only to prove more than minimal additional prejudice due to post-writ delay even if delay within limitation period

Civil Procedure-dismissal for want of prosecution-delay-death or unavailability of defendant”s main witnesses following plaintiff”s delay, with consequent reliance on secondary evidence, likely to cause risk of prejudice or unfair trial

The plaintiff brought an action against the defendant for damages for personal injuries.

The plaintiff alleged that she sustained permanent back injuries as a result of a fall in May 1984 aboard a dive boat owned by the defendant. The defendant operated diving excursions for the tour operators with whom she had booked a cruise. She commenced the present proceedings by writ of summons in July 1987, more than three years after the accident but still within the statutory limitation period. After receiving notice of the proceedings the defendant obtained a report from an accident reconstruction expert on the stairway and railing which the plaintiff claimed were faulty and had caused the accident.

A request for further and better particulars of the plaintiff”s statement of claim was filed and served by the defendant in March 1988 but no reply was received for 16 months. The plaintiff was also examined in April 1988 by the defendant”s medical expert who concluded that she had been suffering back problems before the accident. She promised to release her prior medical records but failed to do so. The vessel itself then had to undergo extensive repair and modification following hurricane damage. The crew were dispersed, and the captain (who had witnessed the accident) left the Cayman Islands. The limitation period for the action expired in 1990.

In December 1992, after the death of the accident reconstruction expert, the defendant requested the plaintiff to discontinue the action but she gave notice of her intention to proceed and filed a summons for directions in February 1993. In March the defendant applied for the dismissal of the action for want of prosecution.

The defendant submitted, inter alia, that (a) there was inordinate and inexcusable delay in bringing the action which would give rise to a

substantial risk of an unfair trial or was likely to cause serious prejudice since its main witnesses were unavailable to give evidence, the captain of the boat having left the Cayman Islands and the accident reconstruction expert having died, and the boat itself had undergone extensive repair and modification; (b) the issue of the writ more than three years after the occurrence of the alleged cause of action, albeit within the limitation period, by itself caused prejudice; (c) the delay subsequent to the issue of the writ exceeded the time-limits prescribed by the rules of court and was inordinate and inexcusable having regard to the delay before the issue of the writ; and (d) the delay after the writ had increased, by more than a minimal amount, the prejudice it had already suffered by reason of the delay in bringing the action.

The plaintiff submitted, inter alia that (a) the burden of proof in this application rested on the defendant and had not been discharged; (b) there was reasonable excuse for the delay (i) which was due to a breakdown in communications between her American and Cayman attorneys and between herself and her Cayman attorneys, and (ii) because she had had to await the commencement of parallel proceedings against the cruise operators-which it was her intention to join with the present proceedings; (c) the unavailability of the accident reconstruction expert would not expose the defendant to risk of an unfair trial or any risk of prejudice as his report was available to the defendant and there would be no objection to its admissibility per se. In any event, the examination on which the report was based had not been conducted until more than three years after the accident and consequently very little weight could be attached to it as an accurate representation of the condition of the boat at the time of the accident; (d) had the evidence of the ‘main witnesses’ been as important as the defendant asserted, it would have made an earlier application to strike out the action when the limitation period expired in 1990; and (e) the prejudice of which the defendant was really complaining was that it could not adequately put forward its defence as it would like, which was not caused by the manner in which the proceedings had been conducted so far.

Held, dismissing the action for want of prosecution:

(1) The plaintiff had been unable to offer any reasonable excuse for the almost six years” delay between the filing of her writ and the defendant”s issuing the summons to dismiss the action. (Whether she had a claim for professional negligence against her attorneys was irrelevant.) Since, once she had issued the writ, she was bound to observe the rules of court, her inordinate and inexcusable delay thereafter in proceeding implied a general disregard of due process, even though the defendant did not need to prove breach of any specific rule of the Grand Court (Civil Procedure) Rules. It did, however, have to show that the delay would cause a substantial risk of serious prejudice or that the fair trial of the issues would be impossible. In this respect, where the defendant could prove that a long delay before the issue of the writ had caused it prejudice, it only had to show a little more than minimal additional prejudice as a result of the post-writ delay, even if

within the limitation period, to justify the striking out of the action; provided that by then the limitation period had expired. It was only in exceptional cases that the court would allow an application to dismiss a pending action while the statutory limitation period had still not expired, on the ground that the plaintiff had been guilty of inordinate and inexcusable delay in prosecuting the action (page 322, lines 18–28;page 325, line 15 – page 326, line 20; page 326, lines 39–41;page 327, lines 12–21;page 328, line 4 – page 329, line 11).

(2) Although the accident reconstruction expert”s written report could be given in evidence, he was not available to speak to it and might therefore be less influential. Moreover, the defendant”s main witness and only eye-witness was no longer available to testify, though he would have been if the plaintiff had diligently pursued the proceedings. Forcing the defendant in this way to rely on secondary evidence to support its case (which might not be as conclusive as the primary evidence it would otherwise offer) while at the same time allowing the plaintiff the advantage of putting forward its best case, created a substantial risk of serious prejudice or that a fair trial of the issues was impossible. The defendant had therefore discharged its burden in satisfying the court that the action ought to be dismissed for want of prosecution (page 329, line 36 – page 330, line 12; page 330, line 24 – page 331, line 28).

SMELLIE, Ag.J.: On the day this matter was heard there were
two summonses before the court. They were the summons for
directions filed on February 1st, 1993 by the plaintiff and the
summons to dismiss for want of prosecution filed by the
40	defendant on March 3rd, 1993. It was agreed between counsel
that arguments on the latter should proceed as, depending on the

outcome, all other proceedings may either be permitted or
forestalled. Mr. McLaughlin”s affidavit filed in support of the
summons to dismiss was accepted by Mr. Murray as an accurate
outline of the history of the matter and of the proceedings. I rely
5	on that affidavit for the chronology of events.
The action is in respect of personal injuries alleged to have
been suffered by the plaintiff to her back as a result of a fall she
sustained on board the defendant”s dive boat on May 28th, 1984.
On July 20th, 1987 the proceedings were commenced by writ of
10	summons filed on behalf of the plaintiff more than three years
after the accident but well within the statutory limitation period.
The defence was filed on October 30th, 1987 and amended
subsequently on April 14th, 1988.
The plaintiff was examined by the defendant”s medical expert,
15	Dr. Stephen Wertheimer, on April 18th, 1988. His examination
revealed that the plaintiff had suffered pre-accident back prob-
lems. The plaintiff”s pre-accident medical records were called for.
Notwithstanding the exchange of correspondence on it, in which
the release of those records was promised, they had not been
20	provided up to the date of the hearing in this matter. It has not
been advanced by Mr. McLaughlin that the plaintiff”s dilatoriness
in this regard could in itself cause prejudice to the defendant but,
rather, it is advanced as some evidence of the general and
inordinate delay on the part of the plaintiff in the conduct of the
25	proceed

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