Wed | Nov 25, 2020

Section of court rules again declared unconstitutional

Published:Sunday | October 27, 2019 | 12:16 AMMcPherse Thompson - Assistant Editor-Business

The Court of Appeal has again declared as unconstitutional a section of the Judicature (Rules of Court) Act that bars defendants in civil proceedings from actively participating in hearings during assessment of damages.

Rule 12.13 of the Civil Procedure Rules, or CPR, provides that in the absence of an order for a default judgment, to be set aside, a defendant can only be heard on issues of costs, time of payment of any judgment debt, enforcement of the judgement or for delivery of goods.

The rule prevented one Natasha Richards and Phillip Richards from participating in an assessment of damages in the Supreme Court in a suit brought against them following a motor vehicle accident along the Bustamante Highway in Clarendon on February 21, 2004.

At the assessment of damages, Justice Brian Sykes awarded $2.5 million against the Richards for general damages and special damages of $185,358.77. The Richardses, despite being represented at the assessment hearing, were not able to address the judge on the issue of damages.

They appealed against the assessment exercise, submitting that they ought to have been allowed to participate. They also contended that the award for general damages was manifestly excessive.

Court of Appeal Justice Patrick Brooks, in setting aside the Supreme Court judgment earlier this month and substituting $1.8 million for general damages for pain and suffering and loss of amenities in favour of the accident victim Judan Brown, noted that the Full Court of the Supreme Court had declared that Rule 12.13 is unconstitutional and invalid and ordered that it be struck from the Civil Procedure Rules.

The Full Court also held that defendants are entitled to actively participate in the assessment of damages.

The court ruled that a defendant at an assessment of damages has a right to be heard, and any provision that removes that right is unconstitutional and cannot be demonstrably justified in a free and democratic society.

Justice Brooks noted that the constitutionality of Rule 12.13 was recently considered by the Court of Appeal in the case of Al-Tec Inc Limited v. James Hogan, Renee Lattibudaire and the Attorney General, the latter having participated in that case at the invitation of the court as an interested party.

In that case, Hogan and Lattibudaire had sued Al-Tec for breach of contract. They served the claim form and particulars of claim by registered post, but the company failed to file an acknowledgement of service showing it had been served with the with the court documents.

Consequently, a default judgment was entered against Al-Tec. The notice of assessment was not served on the company and the assessment proceeded in its absence.

A final judgment was entered in favour of Hogan and Lattibudaire. Al-Tec applied to set aside the judgment but was unsuccessful and therefore appealed the decision.

Justice Brooks observed that an important issue in the case was whether Rule 12.13 infringed Al-Tec’s right to a fair hearing as guaranteed by Section 16(2) of the Charter of Fundamental Rights and Freedoms in the Constitution.

The court ruled that the right to be heard is a fundamental one, as provided by Section 16(2) of the charter, which states that “in the determination of a person’s civil rights and obligations or of any legal proceedings which may result in a decision adverse to his interests, he shall be entitled to a fair hearing within a reasonable time by an independent and impartial court or authority established by law”.

Justice Carol Edwards, who delivered the decision in the Al-Tec case, concluded that Al-Tec had the right to address the court on the quantum of damages.

The court declared that Rule 12.13 is unconstitutional to the extent that it restricts the right of participation by a defendant in an assessment of damages hearing. Rule 16.2(2) of the CPR was also declared unconstitutional to the extent that it provides that notice of the assessment of damages be given to the claimant only.

mcpherse.thompson@gleanerjm.com