Barbara Gayle, Justice Coordinator
It is not unusual to hear litigants complaining that some lawyers who they pay to represent them in both civil and criminal cases are negligent in the handling of their cases.
One such litigant is Dave Blair, who was seriously injured on December 19, 1991, while on the job and in the employment of Alumina Partners of Jamaica (Alpart).
Blair had filed a suit in 1996 seeking damages against Alpart in respect of burns and other injuries he sustained. He received first- and second-degree burns to his buttocks, feet and leg.
Blair, who is dissatisfied with the way his lawyer dealt with his case, filed a suit in the Supreme Court in 2005 seeking damages for negligence against attorney-at-law Hugh C. Hyman and his firm, Hugh C. Hyman & Company.
The defendants failed to file an acknowledgement of service of the claim and statement of defence within the stipulated time, and judgment in default was entered against them.
They applied first in the Supreme Court and then before a judge of the Court of Appeal to have the default judgment set aside but were not successful. They took the matter to the Court of Appeal and in June a three-member panel turned down their application to discharge the order for default judgment so that the matter could go to trial. The court found that the defendants "have not satisfactorily demonstrated that there is some likely prospect of success on their part should the matter proceed to trial".
Queen's Counsel Denise Kitson, who is representing Blair, said the case which is now for assessment of damages is to be heard in the Supreme Court.
Ian Wilkinson, president of the Jamaican Bar Association (JBA), said on behalf of the JBA and the General Legal Council that he was appealing to members of the legal profession to exercise due care and diligence in handling the affairs of their clients.
"We must, at all times, be cognisant of the fact that members of the public come to us for help, and we must treat their interests with the great importance and urgency they deserve. This must also be impressed, in no uncertain terms, upon members of staff," said Wilkinson.
"Lawyers must be vigilant in, inter alia, noting dates, deadlines, preparing documents within timelines, communicating with clients as often as the situation warrants, and keeping their clients fully abreast of all developments relevant to their cases."
Blair was represented between 1991 and 1995 by a lawyer who was an associate of Dunn Cox & Orrett, which merged in 1995 with the law firm Milholland Ashenheim & Stone to form the firm Dunn, Cox Orrett & Ashenheim, now DunnCox. As a result of the merger, there was a conflict of interest in representing Blair, because Alpart was a client of the old firm, Milholland Ashenheim & Stone.
Writ of summons
Blair's file was handed to Hyman and his firm in October 1995 and they resumed discussions with Alpart with a view to settling the matter. It became clear by December 1996 that Alpart was not prepared to settle in excess of the $4.5 million which was being sought, and was only offering $650,000.
On December 27, 1996, the defendants issued a writ of summons but no statement was filed. It was not until February 10, 1999 that the defendants settled and filed the statement of claim in the Supreme Court. The writ that was filed in December 1996 expired on December 26, 1997, and up to that time it was not served on Alpart.
The defendants applied on December 24, 1998 to renew the writ, and a judge of the Supreme Court gave a 30-day extension, which meant that Alpart should have been served on or before February 10, 1999. The writ was not sent for service on Alpart by registered post until February 10, 1999.
On March 25, 1999, Alpart filed an application to set aside the service of the writ on the basis that it was served outside the limitation period. In a bid to avoid the matter being struck out, the defendant accepted $850,000 from Alpart in settlement of the claim filed in 1996.
The Court of Appeal, in dismissing the defendants' application, held that their failure to serve the writ of summons in accordance with the order of January 11, 1999 was fatal, and the next stage in the proceedings is assessment of damages. The court said it would be for the judge making that assessment to say what value should be placed on the loss suffered by Blair as a result of the defendants' negligence.
Blair is now contending that, due to the defendants' negligence, he lost the opportunity to pursue his claim against Alpart. He claims he was forced to compromise his claim against Alpart and had only recovered a portion of what he would have obtained if the suit had been pursued.
If in assessing damages the court finds that Blair is entitled to more than the $850,000 that Alpart had paid, then the defendants will have to pay the balance.