Barry Kessell and Cedarberry (Bermuda) Ltd v John Barritt & Sons Ltd and Alex Russell

• Jurisdiction: Bermuda
• Judgment Date: 01 May 2009
• Date: 01 May 2009
• Docket Number: Civil Jurisdiction 1998 No. 245
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 1998 No. 245

BETWEEN:

BARRY J. KESSELL AND CEDARBERRY (BERMUDA) LIMITED

Plaintiffs

and

JOHN BARRITT & SONS LIMITED AND ALEX WINSTON RUSSELL

Defendants

Mr A Doughty for the Plaintiffs

Mr C Rothwell for the Defendants

The following cases were referred to in the judgment:

Hofer v Bermuda Hospitals BoardBDLR [2008] Bda LR 40

Mermaid Beach and Racquet Club Ltd v MorrisBDLR [2004] Bda LR 49

Re BurrowsBDLR [2005] Bda LR 77

Roberts and Hayward v Minister of Home Affairs and Public SafetyBDLR [2007] Bda LR 31

A-G's Reference (No. 2 of 2001)ELR [2004] 2 AC 72

Lownes v Babcock Power Ltd [1998] EWCA Civ 211

Application for strike out in want of prosecution - Personal injury - Road traffic accident - Right to fair hearing - Delay

RULING of KAWALEY, J

Introductory

1. The Defendants applied by Summons dated November 18, 2008 to strike out the present application for want of prosecution for the second time in this history of this long-running personal injuries action. The Plaintiffs claim damages for personal injuries sustained in a road traffic accident which occurred on January 17, 1997, over 12 years ago. Unlike recent similar applications made in respect of actions which have "gone to sleep" for several years, the present application was based on the proposition that the cumulative effect of a history of numerous comparatively modest delays was not only inordinate and inexcusable but had also caused serious prejudice to the Defendants.

2. The Defendants application was clearly, in general terms, a strong one. However, having regard to the countervailing fair trial rights of the parties, it seemed to me that the cumulative delay was not quite so inexcusable in a traditional sense and the prejudice to the Defendants not quite so serious, as to warrant striking-out for want of prosecution. Accordingly I declined to strike-out the proceedings altogether, set a firm pre-trial timetable and awarded the costs of the application to the Defendants in any event.

3. In light of the industry of both counsel in placing carefully prepared arguments before the Court in relation to an application which raised novel points, I indicated that I would give reasons for my decision.

Chronology of action

4. The following Chronology was prepared by the Defendants' counsel and helpfully summarises the history of the action for the purposes of the present application:

CHRONOLOGY

	Event
1997
January 17th 1997	Road Traffic Accident
June 18th 1997	Letter before action sent to the Defendants' insurer by attorney, Christine M. Hoskins
August 13th 1997	The Defendants' insurers instructed attorneys wrote to Ms. Hoskins seeking medical reports and a schedule of loss
1998
June 22nd 1998	The Plaintiffs' second attorneys, Diel & Myers, wrote to advise that legal proceedings would be filed
July 24th 1998	Writ of Summons with attached Statement of Claim filed
September 10th 1998	Amended Statement of Claim filed
September 14th 1998	Statement of Defence filed
October 6th 1998	Defendants requested discoverable documents from the Plaintiffs relating to his business records from 1995 to 1998
November 3rd 1998	Summons for Directions filed with affidavit of the First Plaintiff seeking, inter alia, a split trial
1999
January 27th 1999 February 15th 1999	Letter from Diel & Myers requesting that the Summons for Directions be adjourned sine die in return for the agreement that there be an interim payment of $35,000.00 to the First Plaintiff (Interim payment paid February 15th 1999)
May 18th 1999	Medical reports of Dr. Chelvam, Dr. Martin and Dr. Ringer provided to the Defendants' attorneys
September 2nd 1999	Notice of Change of Attorneys filed by Telemaque & Associates, the third attorneys for the Plaintiffs
October 7th 1999	Medical reports of Dr. Shaw and Dr. Martin provided to the Defendants' attorneys
2000
January 6th 2000	Plaintiffs' list of documents filed
January 17th 2000	Defendants' attorneys requested that loss of income claim be updated when directions for trial are to be sought as a year has passed since the loss of income claim was pleaded
January 21st 2000	Various loss of income and/or loss of profits documentation was provided to the Defendants' attorneys
February 1st 2000	Defendant's attorneys raise questions regarding documentation
February 16th 2000	Defendants' attorneys requested financial statements of the Second Plaintiff for 1995, 1996 and the second half of 1998
June 9th 2000	Various accounts provided to the Defendants attorneys
August 30th 2000	First Plaintiff improperly submits affidavit in court filein relation to his losses
October 4th 2000	Letter sent by the Defendants' attorneys advising that it was not possible to value the Plaintiffs' claims
2001
October 30th 2001	Letter sent by the Plaintiffs' attorneys, inter alia, requesting a second interim payment
December 5th 2001	Notice of Change of Attorney filed by Francis & Forrest, the fourth attorneys for the Plaintiffs

December 12th 2001	Letter sent by the Defendants' attorneys summarizing the inadequacies of the claim presentation and the discovery by the Plaintiffs
2002
March 20th 2002	Documentation, including the reports of Dr. Chelvam and Dr. Shaw, provided by the Plaintiffs in reply to the above
April 18th 2002	Letter sent by the Defendants' attorneys advising that the medical information provided by the First Plaintiff raised a serious issue of causation
2003 - 2004
March 23rd 2004	Notice of Change of Attorney filed by Smith & Co, the fifth attorneys for the Plaintiffs.
July 14th 2004	Further Summons for Directions filed, again seeking, inter alia, a split trial
August 5th 2004	Summons for Directions withdrawn
December 16th 2004	Letter sent by the Defendants attorneys advising that the Plaintiffs' Amended Statement of Claim of September 1998 and their list of documents were both seriously out of date and needed amendment
2005
February 18th 2005	As above
September 27th 2005	As above
October 4th 2005	Reply by Smith & Co. advising the Plaintiffs had retained new but unnamed attorneys who had obtained legal aid for them
October 6th 2005	Letter to Smith & Co. informing the Plaintiffs that since this was their fifth change of attorney the Defendants' intention was to proceed notwithstanding the change
November 24th 2005	Summons filed by the Defendants' attorneys to have these proceedings struck out for the Plaintiffs failure to make discovery, failure to apply for directions and want of prosecution
2006
April 12th 2006	Defendants agreed to adjourn their application if Plaintiffs (now represented by Christopher Francis Forrest, their sixth attorneys) filed and served Supplementary List of Documents
May 11th 2006	Plaintiffs filed their Supplementary List of Documents
June 6th, 2006	Defendants' attorneys provide medical report of Dr. Froncioni
July 4th 2006	Plaintiffs supplied the...