Kavita Karim v Lenny Blackman-Blake

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Robin N. Mohammed
• Judgment Date: 24 October 2023
• Neutral Citation: TT 2023 HC 330
• Docket Number: Claim No. CV2019-03276
• Court: High Court (Trinidad and Tobago)

BETWEEN

Kavita Karim (As the Legal Personal Representative of the Estate of Elvira Cipriani otherwise Elvira Alvaria Cipriani)

Claimant

and

Lenny Blackman-Blake

and

Dennis Blake

Defendants

and

Insurance Company of The West Indies (Formerly The Great Nothern Insurance Company Limited)

Co-Defendant

Before

The Honourable Mr. Justice Robin N. Mohammed

Claim No. CV2019-03276

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Keston McQuilkin instructed by Ms. Nalini Jagnarine for the Claimant

Mr. Ravindra Nanga instructed by Ms. Alana Bissessar for the Defendants and Co-Defendant

DECISION ON SUMMARY JUDGMENT, STRIKING OUT & EXTENSION OF LIMITATION PERIOD

INTRODUCTION

1 There are, before this court, three Applications for decision, namely:

• i. An application filed jointly by the defendant and co-defendant seeking summary judgment, or in the alternative, the striking out of the entire claim on the grounds that the action is statute-barred.

• ii. The claimant's application seeking the disapplication of the limitation period in accordance with Section 9 of the Limitation of Certain Actions Act.

2 By claim form and statement of case filed on the 12 ^th August 2019, the Claimant commenced these proceedings claiming the following reliefs:

• (a) Damages for negligence pursuant to the Supreme Court of Judicature Act Chapter 4:01 for the benefit of the Estate of Elvira Cipriani otherwise Elvira Alvaria Cipriani, deceased, who died on the 1 ^st September 2013;

• (b) A declaration that under the provisions of section 10A of the Motor Vehicles Insurance (Third Party) Act Chapter 48:51 that by reason of the policy of insurance issued at the material time by the co-defendant to the first defendant in respect of motor vehicle registration number PCX1311, the co-defendant is liable to indemnify the defendants in respect of any damages, interest and costs awarded to the claimant;

• (c) An order that the co-defendant do pay to the claimant the full amount awarded in the action against the defendants together with any interest and costs;

• (d) Interest pursuant to section 25 of the Supreme Court of Judicature Act Chapter 4:01;

• (e) Costs;

• (f) Further and/or such other relief as the Honourable Court deems just.

3 The Claimant initiated this action in her capacity as the Legal Personal Representative of the estate of Elvira Cipriani, also known as Elvira Alvaria Cipriani. Ms. Cipriani was a passenger in motor vehicle HBD 6179, which was involved in a collision with the First Defendant's vehicle PCX 1311 on August 31, 2013. Tragically, Ms. Cipriani succumbed to injuries sustained in the accident and passed away on September 1, 2013.

4 The claim was filed after the expiration of the 4-year limitation period, following a series of pre-litigation correspondences titled “without prejudice.” Additionally, a proposal for settlement dated March 10, 2017, was put forth. Regrettably, this proposal for settlement did not yield a successful resolution, and no agreement was reached. Furthermore, additional “without prejudice” correspondences were exchanged in July and October of 2018.

5 The co-defendant entered an appearance on the 4 ^th September 2019 and the first and second defendants entered an appearance on 21 ^st October 2019, indicating an intention to defend the claim.

6 Nonetheless, and without having filed a defence, on the 12 ^th December 2019, the defendants and co-defendants filed their Notice of Application and accompanying affidavit in support. Their application seeks the court's grant of summary judgment against the entire claim or, as an alternative, the striking out of the Claimant's entire claim, pursuant to the provisions contained in Parts 26.2(1)(a), (b), and (c) of the Civil Proceedings Rules 1998 (“the CPR”). Alternatively, their application also seeks an extension of the time for filing a defence, contingent upon the court's inclination to extend the limitation period in favour of the Claimant.

7 The Claimant filed an application to extend the limitation period on the 10 ^th January 2020. Subsequently, both parties filed written submissions, with the Defendant submitting its written submissions on the 13 ^th March 2020, and the Claimant providing response submissions on the 10 ^th August 2020.

II. FACTUAL BACKGROUND

8 The factual background and procedural history of the claim are summarized herein, drawing from the pleadings and submissions.

9 The Claimant, being the daughter and Legal Personal Representative of Elvira Cipriani, lost her mother on the 1st of September 2013 due to injuries sustained in a motor vehicular accident. The accident involved a collision between two vehicles, resulting in injuries to their occupants, with the Claimant's mother, Elvira Cipriani, tragically succumbing to her injuries. The deceased was seated in the front passenger seat of motor vehicle registration number HBD 6179, which was in motion along the Claude Noel Highway. The second defendant was responsible for the operation and management of motor vehicle registration number PCX 1311, proceeding in a westerly direction along Claude Noel Highway. It is alleged that the second defendant negligently drove and managed the said vehicle by overtaking a line of traffic, subsequently colliding with motor vehicle registration number HBD 6179. This collision resulted in damage to the entire vehicle and inflicted several injuries upon the deceased, including injuries to the head, chest, and broken bones.

10 Following the incident, the deceased was promptly transported to the Scarborough Hospital, where she was admitted and received medical treatment for her injuries until her passing on the 1st of September 2013.

11 Subsequent to her mother's demise, the Claimant applied for the grant of letters of administration for the deceased's estate, which was duly granted on the 4th of March 2016.

12 A series of “without prejudice” correspondences transpired between the claimant and the defendants, extending beyond a year after the expiration of the limitation period within which the claimant was expected to file a claim.

13 The claimant subsequently proceeded to file her claim and statement of case, leading to the respective appearances made in October 2019 and September 2019.

14 The defendants sought an extension of time to file a defence, to which the claimant concurred. Subsequently, on the 12th of December 2019, the defendants and co-defendants submitted a Notice of Application, seeking summary judgment or, alternatively, a striking out order of the claim on the grounds that it was statute-barred.

DEFENDANT'S SUBMISSIONS

15 The Defendant's counsel, Mr. Nanga, asserted that when considering the factual matrix of the present case in the context of section 9(3) Limitation of Certain Actions Act chapter 7:09 (LCAA) factors, the application for an extension of time may fail.

16 For instance, Mr. Nanga pointed out that regarding the duration and rationale behind the delay, the Claimant's affidavit is conspicuously silent on the matter. Given the affidavit's contents, Mr. Nanga contends that one can only infer (although not explicitly stated by the Claimant) that the delay in initiating proceedings might be attributed to protracted negotiations spanning a one-year period between 2017 and 2018. He further submits that the absence of specific particulars appears designed to obfuscate the notion that the Claimant may not have been genuinely committed to pursuing the claim.

17 Mr. Nanga submits that, concerning the pre-action protocol letter, it was dispatched on the 20th of March 2017, nearly four years after the accrual of the cause of action. Subsequently, there ensued prolonged and unexplained delays in correspondence with the defendants. He further contends that the Claimant provided no elucidation as to why it took nearly two years after the expiration of the limitation period to instigate legal proceedings, and why, even after receiving the co-defendant's attorney-at-law's letter in October 2018, the Claimant delayed for over a year and three months to commence the current action.

18 In terms of the potential deterioration in the evidentiary strength of the case, Mr. Nanga posits that the memory of the accident's witnesses may have become increasingly vague and clouded over time, rendering the defence of the claim challenging. Consequently, he submits that extending the limitation period under these circumstances would unduly prejudice the Defendants' ability to mount a robust defence. He contends that there exists no justifiable reason why the Claimant did not initiate legal proceedings sooner, affording the Defendants a fair opportunity to adequately defend against the claim.

19 Shifting focus to the Defendants' conduct subsequent to the cause of action arising, he argues that the Claimant initially refrained from pursuing a claim against the Defendants. He asserts that the pre-action protocol letter was exclusively addressed to the co-defendant. Consequently, the Defendants remained uninformed of the Claimant's intent to pursue a claim until they were served with the proceedings. Mr. Nanga highlights the stark contrast in responsiveness between Great Northern Insurance and the Claimant, emphasizing the latter's prolonged and unexplained periods of delay.

20 Mr. Nanga advances the position that the Claimant was not obliged to await the grant of letters of administration, as her legal representatives could have pursued Administration Pendente Lite. Furthermore, he posits that, in any event, the grant was secured over a year before the limitation period lapsed.

21 In terms of the Claimant's prompt and reasonable actions, he contends that there is a conspicuous absence of promptitude and reasonableness in the Claimant's conduct. He submits that even after the co-defendant's attorneys brought to light the statute-barred nature of the claim, the Claimant took almost three...