Cynthia Samuel Claimant v Mount St. John'S Medical Centre Board First Defendant Attorney General Second Defendant [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Tabor, M (Ag.),Charlesworth Tabor |
| Judgment Date | 21 November 2013 |
| Judgment citation (vLex) | [2013] ECSC J1121-1 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO. ANUHCV2011/0785 |
| Date | 21 November 2013 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Master Charlesworth Tabor (Ag.)
CLAIM NO. ANUHCV2011/0785
Mr. Kendrickson Kentish Mr. Kendrickson Kentish and Miss Amiya Athill for the Claimant
Mr. Kelvin John and Mr. Loy Weste for the First Defendant
Miss Luann Da Costa for the Second Defendant
Civil Procedure Rules 2000 (CPR 2000) — application to strike out statement of claim pursuant to 26.3 — relief from sanctions pursuant to 26.8 and 26.9 — time to serve claim form pursuant to 8.12 — procedural error — discretion of court to grant extension of time in absence of specific sanctions — implied sanctions doctrine — order in which applications should be heard.
There are three (3) applications before the court. The first application was filed on 20 th November, 2012 by the first defendant. This is an application pursuant to Rules 8.12 and 26.3, which inter alia, sought to have the claimant's claim against the first defendant struck out because of the claimant's failure to serve the Claim Form within six months after the date when the claim was issued. The second application was filed on 22 nd November, 2012 by the second defendant. This is an application pursuant to Rules 26.3 (1) (b) and (c) and 19.2 (4) which sought to have the second defendant removed as a party to the proceedings and that the claimant's Statement of Claim as it relates to the second defendant struck out. The third application was filed on 15 th January, 2013 by the claimant. This application sought relief from sanctions pursuant to Rule 26.8 of the CPR and/or an extension of time within which to serve the Claim Form under Rule 8.13 of the CPR.
The first defendant has listed nineteen (19) grounds as the basis for its application to strike out the claimant's statement of claim. I will not restate these grounds but will simply provide a synopsis. Essentially, the position of the first defendant is that "a claim form must be served within 6 months after the date when the claim was issued" as required by Rule 8.12 (1) of the CPR. Also, pursuant to Rule 8.1 (2) "a claim is issued on the date entered on the claim form by the court office."
With respect to the present case, the date entered on the claim form by the court office was the 2 nd December, 2011. On the Notice to the Defendant accompanying the claim form is the statement that "This claim form has no validity if it is not served within 6 months of the date below unless it is accompanied by an order extending that time." The date on the Notice to the Defendant was the 3 rd November, 2011. Consequently, pursuant to the CPR the claim form was only valid until 2 nd June, 2012 i.e., six months after the date the claim form was issued; or alternatively, the claim form could only have been valid until 3 rd May, 2012 i.e., six months after the date of the Notice to the Defendant.
However, despite the requirements of the CPR regarding the service of a claim form, the claim form was served on the first defendant on 25 th October, 2012; approximately 11 months after it was issued by the court office. Since the claimant did not obtain an extension of time to extend the validity of the claim form, the claim form and statement of claim would have no validity and there would be no legal basis for the claimant to maintain the claim against the first defendant. In the circumstances, therefore, learned Counsel has argued that the claim should be struck out in its entirety pursuant to Part 26 of the CPR.
Learned Counsel has urged the court that should its application be denied, that the first defendant should be given the opportunity to enter a defence to the claim since it has a real prospect of successfully defending the claim. He indicated that the first defendant was unable to file its defence within the prescribed 28 day time period under the Rule 10.3 (1) of the CPR, since it is awaiting an expert medical report, among other things, to facilitate the preparation of its defence. He further indicated that the extension of time to file the defence of the first defendant is necessary for the just disposal of the claim on its merits, and no prejudice will be caused to the parties if this application is granted.
With respect to the second defendant, the grounds of the application are:
-
(1) The second defendant/applicant has been wrongly sued and made a party to the claim.
-
(2) That the claimant's statement of claim discloses no reasonable ground for bringing an action against the second defendant or for the second defendant to be defending this claim.
-
(3) That the claim against the second defendant is frivolous and vexatious.
-
(4) That the statement of claim in its form is an abuse of the process of the court.
On 9 th March, 2009 the claimant aged 50 was admitted to the Mount St. John's Medical Centre (MSJMC) with uncontrolled diabetes and right arm swelling and pain. The claimant was treated with antibiotics from 10 th March, 2009 as well as being administered incorrect doses of insulin from the date of her admission to the hospital.
The claimant's condition worsened on 12 th March, 2009 and on 15 th March, 2009 she was seen by the surgical team of the hospital. On 16 th March, 2009 she underwent surgery for a fasciotomy in respect of her arm. The infection the claimant developed and the need for the fasciotomy was caused by the negligence of the defendant.
The claimant has identified the following as the particulars of negligence:
-
(a) The defendants and their servants or agents did not administer the antibiotics to the claimant in a timely manner, thereby worsening the infection and increasing the risk for the subsequent need for surgery.
-
(b) The defendants and their servants or agents did not administer the correct dosage of insulin to the claimant, thereby worsening the infection and increasing the risk for the subsequent need for surgery.
-
(c) The defendants and their servants or agents did not refer the claimant to the medical team in a timely manner thereby increasing the risk for subsequent need for more serious surgery.
-
(d) The surgical team did not take the claimant to the operating room in a timely manner thereby allowing for the claimant's infection to worsen.
The claimant has identified the following as the particulars of injury and loss:
-
(a) Deformity of the right arm
-
(b) Flail right limb.
-
(c) Limited use of right arm.
-
(d) Loss of earning capacity by reason of her disability.
As a result of the foregoing, the claimant is asking the court for the following relief:
-
(a) General damages.
-
(b) Interest pursuant to section 27 of the Eastern Caribbean Supreme Court Act, Cap. 143.
-
(c) Court fees.
-
(d) Costs.
-
(e) Such further Order as the court deems fit.
The extension of time for serving a claim form is provided for by Rule 8.13 which states as follows:
-
(1) The claimant may apply for an order extending the period within which a claim form may be served.
-
(2) The period by which the time for serving a claim form is extended may not be longer than 6 months on any one application.
-
(3) An application under paragraph (1) –
-
(a) must be made within the period –
-
(i) for serving a claim form specified by rule 8.12 or
-
(ii) of any subsequent extension permitted by the court; and
-
-
(b) may be made without notice but must be supported by evidence on affidavit.
-
-
(4) The court may make an order under paragraph (1) only if is satisfied that –
-
(a) The claimant has taken all reasonable steps to -
-
(i) trace the defendant; and
-
(ii) serve the claim form; but has been unable to do so; or
-
-
(b) there is some other special reason for extending the period. …
-
The power of the court to strike out a statement of case is provided for by Rule 26.3 (1) of the CPR 2000 which states as follows:
In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that –
(a) There has been a failure to comply with a rule, practice direction, order or direction given by the court in the proceedings;
(b) the statement of case or part to be struck out does not disclose any reasonable ground for bringing or defending a claim;
(c) the statement of case or part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings; or
(d) the statement of case or part to be struck out is prolix or does not comply with the requirements of Part 8 or 10".
The power of the court to grant relief from sanctions is provided for by Rule 26.8 of the CPR 2000 which states as follows:
-
(1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be –
-
(a) made promptly; and
-
(b) supported by evidence on affidavit.
-
-
(2) The court may grant relief only if it is satisfied that –
-
(a) the failure to comply was not intentional;
-
(b) there is a good explanation for the failure; and
-
(c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions.
-
As I have indicated earlier, there are three applications before the court, namely; the first defendant's application to strike out the claim, the second defendant's application to be removed as a party to the claim and that the claim...
To continue reading
Request your trial