Evangelista Mesa v Leonte Martinez Vega
Jurisdiction | Turks and Caicos Islands |
Judge | Narendra J Lalbeharry |
Judgment Date | 25 March 2024 |
Docket Number | CL 57/18 |
Court | Supreme Court (Turks and Caicos) |
Registrar Narendra J Lalbeharry
CL 57/18
CL25/20
IN THE SUPREME COURT
Joinder-Disjoinder-Consolidation-Deconsolidation-Variation of order
Pfizer Corp v Intercontinental Pharmaceuticals Ltd [1963]
( Payne v British Time Recorder Co Ltd & Curtis Ltd [1921] 2 KB at p 16)
Healey v. A. Waddington & Sons (a firm), and National Coal Board [1954] 1 WLR 688
Elis v Kerr [1910] 1 Ch. 529 at 537”
Mullins v. Hownell. [1879 m. 27.] (1879) 11 Ch.d. 763
Lewis and Another v Daily Telegraph Ltd and Another (No 2) [1964] 1 Al ER 705
( Prestney v Colchester Corpn (1883) 24 Ch D
Ainsworth v. Wilding. [1890 a. 1085.] [1896] 1 Ch. 673
Ms. Chloe McMillan for the Plaintiff in CL57/18
Ms. Murray Snider for the 1 st Defendant CL 57/18
Clayton Greene for the 2 nd Defendant and Defendant in both CL 57/18 and CL 25/20
Hon. Alvin Garland for the Plaintiff in CL 25/20
On the 4 th of March 2017 a road traffic accident occurred resulting in two (2) civil actions being filed in the Supreme Court. The Writ and Statement of Claim in CL 57/18 was filed on 31 st May 2018 by Evangelista Mesa as plaintiff naming Leonte Martinez Vega and Heritage Insurance Company (Caribbean) Ltd as defendants. An amended Writ and Statement of Claim was filed on 1 st July 2019 substituting Heritage Insurance to the 2 nd Defendant Stanley Harold Williams.
On the 5 th of February 2020 the 1 st Defendant in CL 57/18 Leonte Martinez Vega by Writ and Statement of Claim brought proceedings against the Defendant Stanley Harold Williams (the 2 nd Defendant in CL 57/18) under action number CL 25/20 claiming personal injuries and damages. On the 13 th of March 2020 the Defendant in CL 25/20 Stanley Harold Williams filed a Defence and Counterclaim.
In an uncontested application and by agreement of the parties in CL 57/18 and 25/20 the court on 23rd June 2021 ordered that the matters “ be heard at the same time” because the same question of law or fact arises in both actions.
On the 21 st of June 2022 the Plaintiff in CL 57/18 filed a summons to strike out the 2 nd Defendants Defence in CL 57/18 for non-compliance with an Order dated 16 th March 2022. Hylton J after hearing the application to strike out, struck out the 2 nd Defendant's Defence and judgment on liability was entered against the 2 nd Defendant in CL 57/18 with damages to be assessed. On the 17 th of October 2022 the 2 nd Defendant filed an application to set aside the default judgment which was granted by Gruchot J. on the 24 th of January 2023.
On the 16 th of March 2022 Simons J. issued directions in CL 57/18 and at paragraph 6 of said Order, ordered that “the trial in this matter be heard at the same time” as Action 25/20 pursuant to Order 4 Rule 9 (1) (a) of the Rules. The trial bundle in 57/18 was filed on the 31 st of May 2022.
CL 57/18 is now ready for trial, CL 25/20 is not. On perusal of the case file in CL 25/20 no summons for directions was filed in the matter and therefore no directions were given.
Before this Court is the application of the Plaintiff in CL 57/18 for separate trials pursuant to Order 15 Rule 5 of the Civil Rules of the Supreme Court of the Turks and Caicos Islands supported by an affidavit of the Plaintiff.
The Plaintiff states in evidence that on the 16 th day of March Learned Justice Simons KC at paragraph 6 of his Order directed that “the trial of this action is to be heard at the same time as Action CL 25/20 pursuant to Order 4 Rule 9(1) (1) of the Rules”. The Plaintiff continued, that several attempts were made through various correspondence to contact the Plaintiff's Attorney in CL 25/20 in order to have him file a Summons for Directions so that his action could also proceed at the same pace as 57/18, to no avail.
The Plaintiff states that for this reason she is seeking that the Court severs and disjoin Action 57/18 and Action 25/20 given the significant delay on the part of the Plaintiff and Defendant in complying with directions in CL 25/20.
In response Counsel for the 1 st Defendant in CL 57/28 Leonte Martinez Vega submitted that the Plaintiff's application may not be correct as the matters were not joined, but ordered to be heard together and therefore the order of the court should be varied.
The issues which arise for determination are accordingly: 1) Whether these matters were consolidated? 2) Can these matters be disjoined and 3) Can the order directing that both matters be heard at the same time be varied?
Civil Rules 2000 Order 4 Rule 9 provides that where it appears to the Court:
the court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them. [Emphasis Mine]
-
a. That some common question of law or fact arises in both or all of them or
-
b. That the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or
-
c. That for some other reason it is desirable to make an Order under this paragraph
In my view on a literal interpretation of Order 4 Rule 9 a differentiation clearly exists between “consolidation” and “trying both matters at the same time”. The terms “consolidation” and “tried at the same time” have different meanings. Further, the disjunctive “or” is used in Order 4 Rule 9. In Pfizer Corp v Intercontinental Pharmaceuticals Ltd [1963] Lloyd-Jacob J. highlighted the breath of the court's powers under RSC Ord.4 rule 9. He indicated that the powers of the court under this rule can be exercised as ordering separate trials, confining the action to some causes of action, ordering the plaintiff or plaintiffs to elect which cause of action shall proceed, preventing a defendant from being embarrassed or the court can under O. 4 r. 9 order two or more actions to be consolidated or tried at the same time or one immediately after another.
“Consolidation” seeks to physically bring the matters together as one, with one set of pleadings and usually one set of Attorneys. Whereas “ tried at the same time” means that the matters will be heard together with the Judge hearing the matter, having control over how the matters progresses at trial. Usually such matters all have separate pleadings and attorneys.
The main purpose of consolidation is to save costs and time and would not usually be ordered unless there is “some common question of law or fact bearing sufficient importance to render it desirable that the whole matter should be disposed of at the same time”. In ( Payne v British Time Recorder Co Ltd & Curtis Ltd [1921] 2 KB at p 16). Scrutton LJ said:
“where there are common questions of law or fact involved in diferent causes of actions you should include all parties in one action, subject to the discretion of the court, if such inclusion is embarrassing, to strike out one or more of the parties. It is impossible to lay down any rule as to how the discretion of the court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact, bearing suficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time, the court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.”
In Healey v. A. Waddington & Sons (a firm), and National Coal Board [1954] 1 WLR 688 it was stated that the effect of an order for consolidation of actions, is that...
To continue reading
Request your trial