Dillon v Cameron (T/A Cameron Auto Parts)

• Jurisdiction: Trinidad & Tobago
• Judge: Boodoosingh, J.
• Judgment Date: 12 October 2016
• Neutral Citation: TT 2016 HC 361
• Docket Number: CV 2015-03120
• Court: High Court (Trinidad and Tobago)
• Date: 12 October 2016

High Court

Boodoosingh J.

CV 2015-03120

Dillon

and

Cameron (T/A Cameron Auto Parts)

Appearances:

Mr. Phillip Lamont and Ms Lana Benoit for the claimant

Ms Denise Gouveia and Ms Whitney Charles for the defendant

Civil practice and procedure - Striking out — Whether defence to counterclaim ought to be struck out — Application dismissed.

Boodoosingh, J.

1 This is an example of how a claim can sometimes mushroom way beyond the original dispute. The claimant was involved in a motor vehicle accident. This insurer was ALGICO. He took his vehicle to the defendant, who did work for ALGICO. He received an estimate. There was toing and froing between him and ALGICO about the amount they would pay to repair the vehicle. Repairs were done. He was given an invoice for $33,501.11. This invoice did not mention storage fees. The claimant initiated action against ALGICO. The defendant sent a letter claiming the repair sum and storage fees at $100.00 per day. All of this happened in 2010.

2 On 12 July, 2011 ALGICO issued a cheque to the defendant for $29,001.11. On 20 September, 2011 the claimant withdrew his claim against ALGICO.

3 He went to retrieve his vehicle. He was told there was an outstanding sum. He was not allowed to retrieve it. Certain letters passed between attorneys. Eventually on 18 September, 2015 he filed a claim against the defendant for delivery of his vehicle and conversion.

4 A Defence was filed on 16 October, 2015 along with a counterclaim.

5 The claimant filed a Notice of Discontinuance of the claim on 1 December, 2015. The matter came up on 2 December, 2015. The claimant paid into Court the sum of $4,500.00 on 8 December, 2015 as a tender for a repairer's lien.

6 The Defence and Counterclaim filed on 16 October, 2015 contained a claim for the balance of $4,500.00 due for the repair of the vehicle. However, there was a claim of $182,500.00 as a storage fee for five years. The defendant says this fee of $100.00 per day for storage was chargeable and the claimant was told of this fee on several occasions.

7 The Defence and Counterclaim having been filed, a Defence to Counterclaim was due twenty-eight days after service. This would have been towards the middle of November 2015.

8 None was filed. On 2 December, 2015 the Court adjourned the matter for an application to be filed for an extension of time to file the Defence to Counterclaim. The claimant went ahead and filed a Defence to Counterclaim on 8 December, 2015.

9 An application for an extension, however, was only filed on 22 January, 2016, asking that the Defence to Counterclaim filed on 8 December, 2015 do stand.

10 There was also an application by the claimant filed on 22 January, 2016 that the claim for storage fees should be struck out.

11 Meanwhile on 13 January, 2016 the defendant filed an application to strike out the Defence to Counterclaim.

12 The parties have filed written submissions on the various applications. The critical issue for decision is: Should the Defence to Counterclaim be allowed to stand or should it be struck out and on what basis?

13 If you do not file a Defence to Counterclaim within the prescribed time — you are deemed to admit the Counterclaim: Rule 18.12 (2) (a). The party against whom the ancillary claim is filed will be bound by any decision or judgment in the main proceedings in so far as it is relevant to any issue in the ancillary claim.

14 However, Rule 18.9(3) provides the rules relating to a defence to a claim apply to a defence to an ancillary claim except Part 12. This must, in my view, include the opportunity to apply for an extension of time.

15 If no extension is permitted, then Rule 18.12 (2) (a) will apply — that is the party against whom an ancillary claim is made is deemed to admit the ancillary claim.

16 In this regard, “deemed to admit” is not a sanction as such but rather a statement of what the legal position is if no defence has been served. It is to declare the position rather than to sanction the party. This is the effect of reading rules 18.9 (3) and 18.12 (2) (a) together.

17 This approach, in my view, is consistent with the following passages from The Attorney General v. Keron Matthews [2011] UKPC 38 by Lord Dyson:

• “14. … First, a defence can be filed without the permission of the court after the time for filing has expired. If the claimant does nothing or waives late service, the defence stands and no question of sanction arises. If, as in the present case, judgment has not been entered when the defendant applies out of time for an extension of time, there is no question of any sanction having yet been imposed on him. No distinction is drawn in rule 10.3(5) between applications for an extension of time before and after the period for filing a defence.

• 15. Secondly, rules 26.6 and 26.7 must be read together. Rule 26.7 provides for applications for relief from any sanction imposed for a failure to comply inter alia with any rule. Rule 26.6(2) provides that where a party has failed inter alia to comply with any rule, “any sanction for non-compliance imposed by the rule…has effect unless the party in default applied for and obtains relief from the sanction”(emphasis added). In the view of the Board, this is aiming at rules which themselves impose or specify the consequences of a failure to comply. Examples of such rules are to be found in rule 29.13(1) (which provides that if a witness statement or witness summary is not served within the time specified by the court, then the witness may not be called unless the court permits); rule 28.13(1) (consequence of failure to disclose documents under an order for disclosure); and rule 33.12(1) (consequence of failure to comply with a direction to disclose an expert's report).

• 16. It is striking that there is no similar provision in relation to a failure to file a defence within the time prescribed by the rules. There is no rule which states that, if the defendant fails to file a defence within the period specified by the CPR, no defence may be filed unless the court permits. The rules do, however, make provision for what the parties may do if the defendant fails to file a defence with the prescribed period: rule 10.3(5) provides that the defendant may apply for an extension of time; and rule 12.4 provides that, if the period for filing a defence has expired and a defence has not...