JUDGMENT
MASON JA:
Introduction
[1] This appeal is against the order of Richards J made on 3 June 2010 in which she dismissed the appellants’ application for an order striking out the respondent’s Statement of Claim.
[2] On 1 October 2012 at the conclusion of the arguments by counsel, and after discussion among ourselves, the Court was of the opinion that the appeal should be dismissed and thereby affirmed the trial judge’s reasons for her decision. We then announced our decision and reserved our reasons to be set out in writing at a future date. In coming to this decision, and being in agreement with the trial judge about the length of time the case had taken to reach this Court, we took the view that the hearing of the substantive matter ought to be expedited and so ordered. We also deferred the question of costs and requested counsel to make written submissions.
[3] We now set out our reasons for dismissing the appeal and our decision on the award of costs.
Factual and Procedural History
[4] The appellants who are normally resident in England, are the owners of a property called Lascelles House situate in the parish of St. James. The respondent, a building contracting firm, is a company incorporated under the Companies Act, Cap. 308. As a result of an oral agreement sometime in or about March/April 2004, the respondent agreed to carry out renovations to the appellants’ property for an agreed sum.
[5] In order to facilitate the operation of this oral agreement, the appellants employed a firm of architects, Architects Morrison Associates, to design and supervise the renovations. They also employed a firm of quantity surveyors, Cooper Kauffman Ltd, to carry out valuations for the renovations as well as to issue certificates for payment to the respondent.
[6] Over the course of the renovations, the certificates were duly paid when issued. However, on 22 December 2004, when the respondent submitted to the quantity surveyors a “draft final” account for payment, the appellants instructed the quantity surveyors not to certify or value this account. On 5 January 2005, the respondent delivered to the appellants’ quantity surveyors an “amended” final account. It may be added parenthetically that there is dispute between the parties as to the meaning of “draft final account” and “amended final account”.
[7] When payment was not made, the respondent through its UK solicitors, demanded payment from the appellants by letter dated 9 February 2005. Again by letter dated 23 March 2005, this time from its Barbadian attorneys-atlaw, the respondent demanded payment from the appellants. The sum demanded was not paid.
[8] By notice filed on 18 April 2005, the respondent sought and was granted leave on 4 May 2005 to serve the appellants outside the jurisdiction a Writ of Summons, Statement of Claim and Affidavit. These documents were duly served and an Acknowledgment of Service as well as an Affidavit of Service filed.
[9] In its Statement of Claim, in addition to setting out the particulars of the sum being claimed as payment on final account as reasonable remuneration for works carried out for the appellants, the respondent claimed damages in a particular sum, alternatively that said sum on a quantum meruit, interest on the said sum and costs.
[10] In their Defence and Counterclaim filed on 5 July 2005, the appellants contended that the respondent’s Writ of Summons and Statement of Claim should be struck out as an abuse of process for lack of production to the appellants of information to substantiate the respondent’s claim and for inconsistency in amounts demanded by the respondent. The appellants counterclaimed that the renovations carried out by the respondent were not well and efficiently done in a proper and workmanlike manner. As a result since they had to employ other persons to complete the renovations and to remedy defects, they, the appellants”, had incurred expense for which they were claiming damages, repayment of sums overpaid to the respondent, interest and costs.
[11] On 1 September 2005, the respondent filed a Reply and Defence to Counterclaim essentially denying the appellants’ allegations.
[12] When this Court dismissed the appellants’ appeal on 1 October 2012, we were of the view that, given the nature of the case being considered and the history of the matter, it would be particularly helpful if the parties were requested to file an agreed chronology of the steps taken in the action and of relevant events. The Court then requested the parties to file an agreed chronology by 8 October 2012. Despite this request, the parties filed separate documents: the respondent on 19 October 2012 and the appellants on 31 January 2013. An examination of the documents reveals the events to be similarly recorded. That chronology is now set out below:
| No. | EVENT | DATE | LENGTH OF TIME/DELAY |
| 1 |
Alleged oral agreement |
March/April 2004 |
|
| 2 |
Commencement of works |
9 June 2004 |
|
| 3 |
9 June 2004 |
20 December 2004 |
Renovation works completed approximately 6½ months after commencement |
| 4 |
Draft Final Account prepared and dated |
22 December 2004 |
2 days after completion of renovation works |
| 5 |
Amended Final Account delivered by the Respondent to the Appellant’s Quantity Surveyors, Cooper Kauffman Limited |
5 January 2005 |
Approximately 2 weeks after preparation of Final Account |
| 6 |
Writ of Summons and Statement of Claim, and Affidavit for leave to Issue Writ for service outside of Jurisdiction filed |
18 April 2005 |
Approximately 3½ months after Final Account delivered to the Appellant’s Quantity Surveyors |
| 7 |
Attendance before the Registrar, Madam Sandra Mason, on hearing of Application for Leave to serve Notice of Writ outside of Jurisdiction, order granting Leave |
4 May 2005 |
Approximately 2 weeks after Writ of Summons filed |
| 8 |
Notice of Writ of Summons and Statement of Claim filed |
19 May 2005 |
15 days after Order of Registrar |
| 9 |
Acknowledgement of Service of Notice of Writ of Summons |
||
| 10 |
Service of Notice of Writ of Summons on the Appellants/Defendants
|
3 June 2005 |
Approximately 13 days after Notice of Writ filed |
| 11 |
Affidavit of Service of David Allan Kramer
|
17 June 2005
|
Approximately 2 weeks after service of Notice of Writ on the Appellants/Defendants
|
| 12 |
Defence and Counterclaim filed by the Applicants/defendants
|
5 July 2005
|
Approximately 1 month after service of Notice of the Writ of Summons
|
| 13 |
Reply and Defence to Counterclaim of the First and Second Defendants/Appellants
|
1 September 2005
|
Almost 2 months after filing of Defence and Counterclaim
|
| 14 |
Summons for Directions
|
3 November 2005 |
Approximately 2 months after Reply and Defence filed
|
| 15 |
Summons to Strike out the Action filed by the Appellants/Defendants, on grounds of abuse of process
|
25 November 2005
|
Approximately 3 weeks after Summons for Directions filed
|
| 16 |
Rejoinder of the Appellants/Defendants filed
|
25 November 2005
|
|
| 17 |
Take Notice filed by Fitzwilliam Stone & Alcazar, giving notice that they ceased to be attorneys for the Defendants/Appellants
|
29 November 2005
|
|
| 18 |
Request for Further and Better particulars made by the Defendants/Appellants; at same time affidavit of the First Defendant/First Appellant filed in support of application to strike out filed on 25 November 2005
|
1 December 2005
|
Approximately 1 month after Summons for Directions filed
|
| 19 |
Attendance before Deputy Registrar Madam Kristie Cuffy- Sargeant on hearing of Summons for Directions, orders made on Summons for Directions
|
2 December 2005
|
Approximately 1 month after Summons for Direction filed
|
| 20 |
Order of Deputy Registrar made on Summons for Directions filed
|
8 December 2005
|
|
| 21 |
Appellants’/Defendants’ List of Documents filed; affidavits of the Defendants/Appellants filed verifying list of documents
|
28 December 2005
|
Approximately 3 weeks after order of Registrar on the Summons for Directions
|
| 22 |
Respondent/Claimant’s List of Documents filed
|
16 January 2006
|
Approximately 6 weeks after the order of the Registrar on the Summons for Directions
|
| 23 |
Further and Better Particulars filed by the Respondent/Claimant
|
16 January 2006
|
|
| 24 |
Affidavit of Kevin Boyce, Attorney-at-law, filed verifying List of Documents
|
17 January 2006
|
|
| 25 |
Plaintiff’s amended List of Documents, and affidavit of Kevin Boyce verifying amended List of Documents
|
8 December 2006
|
Almost 11 months after the Respondent/Claimant filed its List of Documents
|
| 26 |
Motions Day Notice,Request for Hearing,Trial Record filed. Motions Day fixed for 5 March 2007
|
27 February 2007
|
|
| 27 |
Attendance at Motions Day Hearing, when case fixed for hearing for 5 days, 3rd to 7th December 2007
|
5 March 2007
|
Dates for trial fixed and case set down for hearing approximately 23 months after Writ of Summons filed
|
| 28 |
Take Notice from Supreme Court Registry to counsel forparties to action informing of the dates for trial – 5days, from 3rd to 7th December 2007
|
28 June 2007
|
|
| 29 |
Supplemental List of Documents filed by the Appellants/Defendants
|
16 November 2007
|
Approximately 23 months after the Appellants/Defendants filed their List of Documents
|
| 30 |
Affidavit of Dawn Williams, verifying Supplemental List of Documents
|
19 November 2007
|
|
| 31 |
Case adjourned because Senior Counsel for the Respondent/Claimant and Judge before whom case was set were involved in an urgent application
|
3 December 2007
|
Approximately 2 years, 7 months after the Writ of Summons was filed
|
| 32 |
Death of Malcolm Barber
|
January 2009 |
Approximately thirteen (13) months after adjourned hearing
|
| 33 |
Letters from Respondent/Claimant to the Appellants, enclosing Certificate of Readiness for signature by the Appellants, annexed to affidavit of Paul Niccolls filed on 30 March 2012 as PDN 15
|
3 April 2009
|
Approximately 16 months after case adjourned
|
| 34 |
Letter from Appellants to Respondents, annexed to the Affidavit of the First Appellant filed on 24 March 2010 RG 5
|
14 April 2009
|
Approximately 1½ weeks after letter from Respondent/Claimant’s letter referred to in the preceding column.
|
| 35 |
Notice of Change of Attorneys and Notice of Intention to Proceed filed by the Respondent/Claimant
|
21 April 2009
|
|
| 36 |
Letter from the Respondent/Claimant’s counsel in response to the First Appellant’s letter of 14th April 2009, annexed to the Affidavit of Paul Niccolls filed on 30 March 2012 as PDN 16
|
27 April 2009
|
|
| 37 |
Letter from the First Appellant to counsel for the Respondent//Claimant exhibited to the affidavit of the First Appellant as RG 7
|
28 April 2009
|
|
| 38 |
Letter from the Respondent/Claimant’s counsel to Ms. Dawn Williams, Attorney-atlaw for the Appellants, exhibited to the affidavit of Paul Niccolls filed on 30 March 2010 as Exhibit PDN 13
|
18 May 2009
|
|
| 39 |
Letter from the Respondent/Claimant’s Attorney-at-law to Mr. Mark Murray, requesting that the matter be set down for a case management hearing, exhibited to the affidavit of Paul Niccolls filed on 30 March 2010 as Exhibit PDN 18
|
21 October 2009
|
Approximately 5 months after initial letter from the Respondent/Claimant’s Attorney-at-law to the Appellants/Defendants, and approximately 22 months after trial of case adjourned
|
| 40 |
Letter from Respondent/Claimant’s Attorney-at-law to Ms. Dawn Williams, attached to affidavit of Paul Niccolls filed on 30 March 2010 as exhibit PDN 17
|
1 December 2009
|
|
| 41 |
Notice of Application filed by the Respondent/Claimant for Pre-Trial Review, which was fixed for hearing on 19th February 2010
|
9 December 2009
|
Approximately 2 months after letter to the Senior Legal Assistant requesting date be fixed for case management conference, and approximately two years after trial of case adjourned
|
| 42 |
Letters from counsel for the appellants seeking an adjournment of hearing of Pre-Trial Review, attached to affidavit of Paul Niccolls filed on 30th March 2010, exhibited as PDN 21
|
17 February 2010
|
Approximately 9 weeks after Notice of Application filed for Pre-Trial Review
|
| 43 |
Attendance of counsel for Appellants and Respondents at Pre- Trial Review, which was adjourned to hearing on 19th March 2010
|
19 February 2010
|
|
| 44 |
Letter from counsel for the Appellants/Defendants to counsel for the Respondent/Claimant, attached to the affidavit of Paul Niccolls filed on 30th April 2010 as exhibit PDN 21
|
15 March 2010
|
|
| 45 |
Letter from counsel for the Respondent/Claimant to counsel for the Appellants/Defendants, in response to letter at No. 41, attached to affidavit of Paul Niccolls filed on 30th March 2010 as exhibit PDN 22
|
17 March 2010
|
|
| 46 |
Attendance at adjourned hearings, further adjournment to permit Appellants to file application
|
19 March 2010
|
Approximately 4 months after Notice of Application for Pre-Trial Review
|
| 47 |
Notice of Application to strike out the Respondent/Claimant’s Statement of Claim filed by the Appellants/Defendants, along with affidavit of Robert Griffiths
|
24 March 2010
|
5 days after last adjourned hearing, one month short of five years after Writ of Summons filed
|
| 48 |
Take Notice issued by Supreme Court Registry, fixing date for Case Management Conference for 28th May 2010
|
24 March 2010
|
Approximately 6 months after the Respondent/Defendant wrote to the Senior Legal Assistant asking that the matter be set down for case management
|
| 49 |
Affidavit of Paul Niccolls filed on behalf of the Respondent/Claimant in opposition to the striking out application
|
30 March 2010
|
6 days after Appellants/Defendants filed application to strike out
|
| 50 |
Affidavit of Mark Pearson filed on behalf of the Respondent/Claimant
|
21 May 2010
|
Approximately 1 month after Appellants/Defendants filed application to strike out
|
| 51 |
Two affidavits of First Appellant in response to affidavits filed on behalf of the Respondent/Claimant
|
31 May 2010
|
Approximately five weeks after application to strike out
|
| 52 |
Hearing of the application to strike out filed by the Appellant
|
2 and 3 June 2010
|
Approximately six weeks after the Appellants/Defendants’ application to strike out
|
| 53 |
Order of Madame Dr. Sonia Richards, dismissing application to strike out, reasons given orally
|
3 June 2010
|
Approximately five years, 1½ months after Writ of Summons filed
|
| 54 |
Appellants/Defendants’ Notice of Appeal filed
|
17 June 2010
|
Approximately 14 days after the order of Court dismissing application to strike out
|
| 55 |
Attendance before the Deputy Registrar, Madam Kristie Cuffy- Sargeant on settling the Record of Appeal
|
27 September 2010
|
Approximately 10 weeks after Notice of Appeal filed
|
| 56 |
Written Reasons given
|
During 2011, at a time before item immediately following
|
|
| 57 |
Appellants/Defendants filed Record of Appeal
|
29 November 2010
|
Approximately 2 months after settling of the Record of Appeal before the Deputy Registrar
|
| 58 |
Respondent/Claimant filed written submissions
|
17 August 2011
|
Approximately 8½ months after settling of the Record of Appeal
|
| 59 |
Respondent/Claimant filed Notice of Application for Case Management Conference of appeal
|
9 May 2012
|
Almost 23 months after appeal filed, and almost 9 months after the Respondent/Claimant had filed written submissions
|
| 60 |
Attendance before the Hon. Madam Justice Sandra Mason, on hearing of the application for Case Management of the appeal, order, inter alia, fixing appeal for hearing on 1st and 2nd October 2010, and directing Appellants/Defendants to file written submissions
|
14 June 2012
|
Approximately 5 weeks after Notice of Application for Case Management filed
|
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