Hagley and Motor One Insurance Company Ltd v Babwah

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: P. Jamadar, J.A.
• Judgment Date: 15 June 2015
• Neutral Citation: TT 2015 CA 16
• Docket Number: Civil Appeal 32 of 2015
• Date: 15 June 2015

Court of Appeal

Yorke Soo-Hon, J.A.; Moosai, J.A.

Civil Appeal 32 of 2015

Hagley and Motor One Insurance Company Limited

and

Babwah

Appearances:

Ms. T. Hadad instructed by Ms. T. Lutchman for the appellants.

Mr. S. Ramrekersingh instructed by Mr. R. Freeman for the respondent.

Civil practice and procedure - Appeal — Limitation period — Extension of time — Whether trial judge rred by extending time for filing claim — Appeal dismissed.

INTRODUCTION

P. Jamadar, J.A.

1 The decision giving rise to this appeal is that of the trial judge, Justice Peter Rajkumar, dated 19th February, 2015. The decision arose out of a case management conference hearing (CMC) on the 25th November, 2014, at which the judge gave directions for the determination of an issue of limitation raised by the appellant (second defendant). The specific issue was whether the respondent's (claimant's) action ought to be struck out because it was commenced outside of the four year limitation period prescribed by section 5 of the Limitation of Certain Actions Act, Chapter 7:09 of the Laws of Trinidad and Tobago (“the Act”). The trial judge dismissed the appellant's application and extended the time for the filing of the respondent's claim.

2 The issue in this appeal therefore, is whether the trial judge in the exercise of his judicial discretion under section 9 of the Act, as amended by Act 2 of 2000, could legitimately have extended the four year limitation period for the filing of the action as provided for by section 5 of the Act.

DISPOSITION

3 On the 13th April, 2015 this appeal was heard and determined. This Court found that the trial judge was not plainly wrong in the exercise of his discretion and therefore decided that it would not interfere with the judge's decision to extend time for the filing of the respondent's action. In the circumstances the appeal was dismissed. The appellant was ordered to pay to the respondent's costs assessed in the sum of $11,400.00.

FACTUAL BACKGROUND

4 The respondent, Latchman Babwah, filed his claim on the 15th July, 2014 for damages for personal injuries sustained in a motor vehicular accident which occurred on the 9th February, 2010. The claim was made five months after the expiration of the limitation period of four years under the Act for matters of this nature. At the time of filing the action and even up to the CMC of the 25th November, 2014, the respondent had not filed a formal application seeking leave to extend the time for filing his claim. The appellant raised the issue of limitation in paragraph 1 of its defence and subsequently sought to have the action struck out.

5 The respondent's affidavit filed in opposition to the application to strike out the action, attempted to show that the delay in filing the claim was not his fault, and that he was always interested in pursuing his claim and he was continuously taking steps to progress it. He deposed that despite his earnestness and diligence, his intentions were frustrated by default and delay on the part of a succession of legal advisors entrusted with pursuing his claim. Indeed, the trial judge in commenting on this aspect of the evidence stated (at paragraph 20):

“The claimant's affidavit sets out his version of the history of this matter. It makes disturbing reading. In effect he was ill served by a series of attorneys that he approached to institute proceedings. Their actions and limited efforts were ineffectual, culminating in the limitation period expiring.”

ANALYSIS

6 In this appeal three points of contention arose, which we will consider under the following headings: (i) the application argument; (ii) the merits of the respondent's arguments to extend time; and (iii) the drafting error. As is well known, this Court will not interfere with the exercise of a trial judge's judicial discretion, unless it can be demonstrated that the judge was plainly wrong, either in his understanding and/or application of the law and/or in his interpretation and assessment of the facts. (Attorney General of Trinidad and Tobago v. Miguel Regis Civil Appeal No 79 of 2011, at paragraphs 10 and 11:

• “10. Where there is an appeal against the exercise of a trial judge's discretion the Court of Appeal will not interfere with the decision of the trial judge unless it is shown to be plainly wrong. As Lord Templeton has explained:

  “when a judge alive to the possible consequences, decides that a particular course should be followed in the conduct of the trial in the interest of justice, his decisions should be respected by the parties and upheld by an appellate Court unless there are very good grounds for thinking that the judge was plainly wrong.”

• 11. The law as to the reversal by a Court of Appeal in Trinidad and Tobago of an order made by a trial judge in the exercise of his discretion is well-established. The appellate Court will generally only interfere if it can be shown that the trial judge was plainly wrong. Thus, we may say that unless it can be demonstrated, for example, that the trial judge disregarded or ignored or failed to take sufficient account of relevant considerations or regarded and took into account irrelevant considerations or that the decision is so unreasonable or against the weight of the evidence or cannot be supported having regard to the evidence or that the judge omitted to apply or misapplied some relevant legal principle or that the decision is otherwise fundamentally wrong, the Court of Appeal will not generally interfere with the exercise of a Court's discretion.”

THE APPLICATION ARGUMENT

7 At the hearing of this appeal, counsel for the appellant conceded her preliminary argument on this point: which was that an application for an extension of time pursuant to section 9 of the Act, had to be filed prior to or contemporaneous with the filing of the claim form and statement of case in order for a Court to have jurisdiction to consider the matter. She was right to do so. However, we are of the opinion that some guidance should be given on this issue.

8 The respondent himself raised the issue of limitation in his statement of case filed on the 15th July, 2014. Paragraph 12 stated as follows:

• “12. Further, the claimant contends that section 9 of the Limitation of Certain Actions Act Chap. 7.02 (“ LCA”) applies and that the limitation period of four (4) year for filing his claim should be extended from the 8th February, 2010 to the date hereof for these reasons:

  • (1) The claimant is/will be prejudiced by the operation of section 5(2) in so far as it limits his claim to being filed within four (4) years of the date of the accident because having brought his claim outside that period he would be deprived of his remedy in damages which will cause him grave hardship having regard to the fact that he is medically unfit to work and cannot earn a livelihood;

  • (2) On the other hand the defendant and/or the Co-defendant will not be prejudiced if the period is extended because they had knowledge of the accident and the claimant's injury having (i) had notice of the accident and the fact that claims were paid out to passengers in the vehicle driven by the claimant; (ii) settled the property damage claim in respect of the vehicle the claimant was driving; (iii) received the Pre-Action correspondence issued by the claimant's then attorney at law dated 3rd September, 2013;

  • (3) The length of the delay is not inordinate and was caused either in part by the inadvertence of the claimant's then attorney at law who allowed the limitation period to pass while awaiting a response both to written and telephone communication with the defendant/Co-defendant and/or due to the fact that the claimant was unable to finance the cost of commencing High Court proceedings;

  • (4) The length of the delay is not likely to affect the cogency of the evidence because the defendant/Co-defendant knew about the accident and the claimant's injury from inception;

  • (5) The defendant/Co-defendant failed to respond to correspondence and/or telephonic enquiries in respect of status of the claimant's claim.”

9 The appellant also addressed the issue of limitation in its defence as follows:

• “1. The claimants' claim is statute barred under the Limitation of Certain Actions Act, Chapter 7: 09, Act 36 of 1997 Amended by 2 of 2000 and ought to be struck out. The reasons proffered by the claimant in the statement of case as to the late filing of the claim do not fall within any of the exceptions of the Limitation Act as per Section 9(3).”

10 It is clear that the respondent in his statement of case indicated an intention to seek an extension of time to file this action and disclosed his reasons justifying it. The appellant however contended that no formal application was made by the respondent to extend the limitation period. Both parties had raised the issue of limitation in their pleadings, but there was in fact no application filed before the Court at the date of the first CMC. Further, the appellant contended that it is not proper or sufficient for the respondent to plead that the limitation period ought to be extended by way of his statement of case. The proper procedure was that an application ought to have been filed prior to or contemporaneous with the claim form and statement of case and the omission to file such an application for relief pursuant to section 9 of the Act is fatal and cannot be cured. This because, since there was no application before the Court, there was no jurisdiction to adjudicate on any extension of the limitation period. Therefore, the judge could not properly have exercised his judicial discretion to extend the time for the filing of the action.

11 In support of this submission, the appellant relied on the cases of Nigel Aparball and Others v. The Attorney General and Others (CV 2007-04365.), Sinanan Rampersad v. Ramcharan Rampersad (CV 2008-04919.) and ...