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					THE REPUBLIC OF TRINIDAD AND TOBAGO


                                In The High Court of Justice


Claim No. CV 2008-00876

                                          Between


                                   SARAH YOUNG
                            KATHY YOUNG VLUGTER
                    (Legal Personal Representatives of the Estate of
                Edwin Young also called Edwin Anthony Young, deceased)

                                                                            Claimants

                                            And

                                 LENA PEGUS
                     GUARDIAN GENERAL INSURANCE LIMITED
                                                                              Defendants



Before the Honourable Madame Justice Rajnauth-Lee



Apppearances:


Mr. Kevin Ramcharan instructed by Ms. Leandra Ramcharan for the Claimants
Ms. Nadine S. Ratiram instructed by Ms. Anjeli Narine for the Defendants



Dated the 17th December, 2010



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                                           JUDGMENT


1.     The Claimants are the legal personal representatives of Edwin Young, deceased, (“the
deceased”) by virtue of letters of administration granted on the 22nd September, 2006. They are
the lawful daughters and two of the next of kin of the deceased. They bring this claim for
damages for personal injuries/fatal accident and consequential loss arising out of an accident on
the 10th March, 2004, at the Sir Solomon Hochoy Highway near the Preysal Flyover, Couva
alleging negligence on the part of Gerald Pegus, servant and/or agent of the First Defendant.


2.      Before the Court are three Notices of Application:


       (1) A Notice of Application filed by the Claimant on the 9th February, 2009, seeking an
           Order:
           (i)     That the Claim Form and Statement of Case be amended.
           (ii)    That the claim falls within section 5(3)(b) of the Limitation of Certain Actions
                   Act, 1997.
           (iii) That time be extended for the filing and service of this application.
           (iv) That leave be granted to the Claimants to file and serve a Reply to the Defence
                   of the First Defendant dated and filed herein the 28th November, 2008.


      (2) A Notice of Application filed by the Claimants on the 27th April, 2009, seeking:


           A declaration that the First Defendant has waived any irregularity in the service of the
           Claim Form by failing to comply with Rule 9.7 of the Civil Proceedings Rules,
           1998.


           In the alternative, an order that the time for the service of the Claim Form and
           Statement of Case be extended to the 31st October, 2008.




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         (3) A Notice of Application filed by the Claimants on the 14th May, 2009, seeking an
      order that service of the Claim Form and Statement of Case on the Second Defendant be
      deemed good and proper service on the First Defendant pursuant to Rule 5.10 of the Civil
      Proceedings Rules, 1998.



UNDISPUTED FACTS


3.        On the 10th March, 2004 the First Defendant’s motor vehicle registration number PBE
6025, being driven by Gerald Pegus, was proceeding in a northerly direction along the Sir
Solomon Hochoy Highway, when the said vehicle veered across the highway and overturned
colliding with the deceased who was standing on the shoulder of the highway, and who died on the
10th March, 2004 as a result of critical personal injuries suffered as a result of the collision. The
driver of the First Defendant’s motor vehicle registration number PBE 6025 also died as a result of
the said collision.


4.        By letter dated the 6th September, 2006, Attorneys acting for the Claimants wrote to the
Second Defendant indicating that they had been instructed by their clients, [the Claimants] the
legal personal representatives of the deceased, that the First Defendant, the Second Defendant’s
insured, had accepted full liability for the aforesaid accident under Policy No. TTAFP295969.
Further, Attorney for the Claimants enquired about the Second Defendant’s position in relation to
the accident and expressed their keenness to forward details of their clients’ claim to the Second
Defendant.


5.        On the 22nd September, 2006, the High Court of Justice granted letters of administration
to the Claimants in relation to the estate of the deceased in Estate No. L.2021 of 2005.


6.        On the 2nd October, 2006, the Second Defendant, by Mrs. Goura Bissessar, its Team
Leader – Claims Department, responded to the letter of the 6th September, 2006 indicating its
willingness to negotiate an amicable settlement of the Claimants’ claim and requesting details of
the claim together with supporting documents. Attorneys for the Claimants, however, did not
comply with this request and the Second Defendant alleged that it did not hear from the Claimants

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again until 10th July, 2008. On the other hand, the Claimants contended that after numerous
telephone conversations with the officers of the Second Defendant, negotiations proved to be
futile.


7.        On the 11th March, 2008 the Claimants as the legal personal representatives of the
deceased commenced the claim herein against the First Defendant, as the registered owner of the
said motor vehicle registration number PBE 6025, and the Second Defendant, as the insurers of the
said motor vehicle registration number PBE 6025, claiming damages arising out of the said
collision of the First Defendant’s said motor vehicle registration number PBE 6025 and the
deceased.


8.        On the 10th July, 2008, Mrs. Goura Bissessar received a telephone call from Ms. Leandra
Ramcharan, Attorney at Law for the Claimants. Ms. Ramcharan informed her that the Claimants
had filed a legal claim in the instant matter and that they would be serving same on the Second
Defendant on the said date. Ms. Ramcharan also inter alia enquired whether the Second Defendant
would accept service of the said legal claim on behalf of its insured, the First Defendant, but
according to Mrs. Bissessar in her affidavit filed on the 20th May, 2009, she stated categorically
that they would not do so. The Court will consider this issue in great detail later in this judgment.


9.        On the 11th August, 2008 the Second Defendant filed its Defence alleging inter alia that
the said collision and consequently the death of the deceased was as the result of an inevitable
accident which occurred when the right rear tyre of the First Defendant’s vehicle suddenly and
without warning and negligence on the part of the First Defendant and/or her servant and/or agent,
exploded and/or blew out thereby causing the said collision. The Second Defendant also alleged
that the Claimants’ right to bring an action for damages for personal injuries and the death of the
deceased was barred in time under section 5 of the Limitations of Certain Actions Act Chap.
7:09 (“the Act”) in that the Claim Form and the Statement of Case were filed on the 11th March,
2008, after the expiry of four years from the date on which the cause of action accrued.


10.       On the 5th November, 2008, the Claimants’ filed their Reply to the Defence of the Second
Defendant alleging that the action was not barred under section 5 of the Act. They alleged that the

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deceased’s widow, Nancy Young, was his lawful next of kin and she had made inquiries of her
Attorneys with a view to making an application for letters of administration of the deceased’s
estate, but the said Nancy Young died on the 25th July, 2004 before the said application could be
made. Further, the Claimants alleged that they only became aware that they had a cause of action
in July, 2005 when they visited the offices of their Attorneys and were so advised. The Claimants
alleged that pursuant to that advice, applications for letters of administration of the deceased’s
Estate and the estate of the said Nancy Young were duly made and grants were issued by the
Registrar of the Supreme Court. The Claimants contend that since they only became aware of the
existence of a cause of action against the Defendants in July 2005, pursuant to section 5(3)(b) of
the Act, the existing action filed on the 11th March, 2008, was filed within the time permitted by
the Act.


11.        On the 12th November, 2008, Attorney Ms. Gail Persad entered an appearance to the
Claim Form on behalf of the First Defendant. On the 28th November, 2008, Ms. Persad, filed a
Defence on behalf of the First Defendant, alleging inter alia, that the Claimants’ claim was statute
barred under the Act; that the Claim Form filed on the 11th March, 2008, and served on the First
Defendant on the 31st October, 2008, had no validity since it was not served within four months of
the date of issue and since it was served without an order of the Court extending the time within
which the said Claim Form could be served. The First Defendant also contended that she was not
served with a sealed copy of the Claim Form but only with a photocopy of the Claim.


12.        On the 27th March, 2009 a Notice of Change of Attorneys was filed by Messrs. N.S.
Ratiram & Co. whereby the said Messrs. N.S. Ratiram & Co. were appointed to act for the First
Defendant in place and instead of Ms. Gail Persad.


ISSUES


13.        The issues which arise for the Court's determination are as follows:


       (i)      Whether the Claimants’ claim which was instituted on the 11th March 2008 seeking
                damages for the personal injuries and death of the deceased is barred in time under

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        section 5 of the Act in that the Claim Form was filed after the expiry of four years
        from the date on which the cause of action accrued. There are certain sub-issues
        which arise for the Court’s determination:
              (a) Whether for the purpose of the limitation period, time should be
                  computed from the date on which the Claimants allegedly acquired
                  knowledge of the accrual of the cause of action, that is, July 2005.


              (b) Whether for the purpose of the limitation period, time should be
                  computed from the date on which letters of administration were granted
                  to the Claimants as legal personal representatives of the deceased, that is,
                  the 22nd September, 2006.


(ii)    Whether this case is a suitable case for the Court to exercise its discretion pursuant
        to section 9 of the Act to override the limitation period in section 5 (2) of the Act
        and permit the Claimants’ claim to continue. Under this head, there are two sub-
        issues which arise for the determination of the Court:
            (a) Whether the Second Defendant’s representation contained in its letter
                 dated 2nd October 2006 to “negotiate an amicable settlement” of the
                 Claimants’ claim amounts to an admission of liability.
            (b) Whether the said representation estops the Defendants from relying on the
                 limitation point as its defence.


(iii)   Whether service of the Claim Form on the Second Defendant can be deemed good
        and proper service on the First Defendant pursuant to Part 5.10 of the Civil
        Proceedings Rules, 1998 as amended (“the Rules”).

(iv)    Whether the Court should strike out the claim against the First Defendant when the
        First Defendant was served with a photocopy and not a sealed copy of the Claim
        Form, after the four month period for service prescribed by Part 8.13 of the Rules,
        and in the absence of an order of the Court extending the period within which the
        Claim Form may be served under Part 8.14 of the Rules.


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       (v)     Whether the First Defendant has waived any irregularity in the service of the Claim
               Form and submitted to the jurisdiction of the Court by failing to comply with Part
               9.7 of the Rules.


       (vi)    Whether the Court should make an order in favour of the Claimants extending the
               time for the service of the Claim Form to the 31st October, 2008.


       (vii)   Whether, in light of the Claimants’ alleged breaches of the Rules and orders of the
               Court and having regard to the findings of the Court, the Court should strike out the
               Claimants’ claim under Part 26.2(1) of the Rules.




ISSUE (I)


          Whether the Claimants’ claim which was instituted on the 11th March 2008 seeking
         damages for the personal injuries and death of the deceased is barred in time under
         section 5 of the Act in that the Claim Form was filed after the expiry of four years from
         the date on which the cause of action accrued


 14.     Section 5 of the Act governs inter alia the limitation period with respect to the survival of
 a cause of action for the benefit of the estate of the deceased by virtue of section 28 of the
 Supreme Court of Judicature Act. It provides in full as follows:


       5. (1) Subject to subsection (6), this section applies to any action for damages for
       negligence, nuisance or breach of duty whether the duty exists by virtue of a contract or any
       enactment or independently of any contract or any such enactment where the damages
       claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include
       damages in respect of personal injuries to the plaintiff or any other person.




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      (2) Subject to subsection (3), an action to which this section applies shall not be brought
      after the expiry of four years from—
               (a) the date on which the cause of action accrued; or
               (b) the date on which the person injured first acquired
                  knowledge of the accrual of the cause of action.


      (3) Where the person injured dies before the expiry of the period prescribed by subsection
      (2), the period with respect to the survival of the cause of action for the benefit of the estate
      of the deceased by virtue of section 28 of the Supreme Court of Judicature Act, shall be four
      years from—
               (a) the date of death; or
               (b) the date on which the personal representative first acquired knowledge of the
               accrual of the cause of action whichever is the later.


      (4) Where there is more than one personal representative and their dates of knowledge are
      different, subsection (3) shall be construed as referring to the earlier or earliest of those
      dates.


      (5) For the purposes of this section “personal representative” includes any person who is or
      has been a personal representative of the deceased and regard shall be had to any
      knowledge acquired by any such person while being a personal representative.


      (6) This section does not apply to an action under the Compensation for Injuries Act.


15.      There is no claim in the instant case made pursuant to the Compensation for Injuries
Act Chap. 8:05.


16.      The Claimants have contended in their submissions filed on the 9th February, 2009 that
their claim which was filed on the 11th March 2008, was filed on the last day of the four year
period prescribed by section 5(2) of the Act. The Claimants submit that the date of the accident,
that is the 10th March, 2004, ought not to be included in the computation of the time limit and

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therefore the limitation period would expire on the 11th March 2008. The Claimants rely on section
25 (1) of the Interpretation Act Chap. 3:01 which provides:


      25. (1) Where in a written law a period of time is expressed to be reckoned from a particular
      day or a particular event, that day or the day of event shall not be included in the period.


17.       On the other hand, Attorney for the Defendants placed reliance on the unreported case of
Victor Mungal and ors. v Scotiatrust and Merchant Bank Trinidad and Tobago Limited and
Fitzwilliam, Stone, Furness-Smith Morgan, Attorneys-at-Law (a Firm) CV2006-03031 where
Moosai J., in determining the preliminary issue before the Court as to when a cause of action
accrues for the purposes of the Act, stated at page 15 that, assuming that there had been negligence
on the part of the Second Defendant, actual damage would have been sustained at the time of the
execution of the conveyance and the mortgage, that is to say on the 29th April, 1998. Accordingly,
Moosai J. concluded that the claimants’ cause of action in negligence accrued on the said 29th
April, 1998, and would have become statute-barred by the 29th April, 2002.


18.       Additionally, in the unreported case of Otis Jobe v (Police Constable) Edgar Baird and
the Attorney General of Trinidad and Tobago CV 2009-00642 Rajkumar J. noted that the
Claimant’s cause of action in that matter accrued on the 11th February, 2005 and therefore the
Claimant’s action was instituted outside the prescribed limitation period when it was filed on the
20th February 2009, nine days after the expiry of the limitation period. Accordingly the limitation
period expired on 11th February, 2009.


19.       Moreover, the Claimants placed reliance on the case of Dodds v Walker [1981] 2 All ER
609. In that case, their Lordships of the House of Lords held that in calculating the period of a
month or a specified number of months that had elapsed after the occurrence of a specified event,
such as the giving of notice, the general rule was that the period ended on a corresponding date in
the appropriate subsequent month, irrespective of whether some months were longer than others.
According to Lord Diplock at page 610, the period ended on “the day of that month that bears the
same number as the day of the earlier month on which the notice was given.” In the Court’s view,
this case does not lend support to the Claimants’ argument.

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20.      Having regard to the authorities cited above, the Court finds that the limitation period for
the filing of the Claimants’ claim expired on the 10th March, 2008 and not the 11th March, 2008.
Accordingly, the Claimants’ action is prima facie statute-barred.


SUB-ISSUE 1 (a)


 Whether for the purpose of the limitation period, time should be computed from the date on
 which the Claimants allegedly acquired knowledge of the accrual of the cause of action, that is,
 July 2005


21.      Attorney for the Claimants submitted in her written submissions filed on the 9th February,
2009, that should the Court find that the limitation period for the Claimants’ cause of action
expired on the 10th March 2008, then it is contended on behalf of the Claimants that they first
acquired knowledge of the claim in August, 2005 when they visited their Attorney’s office and
were advised of their cause of action. At paragraph 7 of the affidavit of the First Claimant filed on
the 9th February, 2009, she deposed that they attended their Attorney’s office in August, 2005.
Nevertheless, the Claimants allege at paragraph 3 of the Reply filed on the 5th November, 2008,
that they only became aware that they had a cause of action against the Defendants when they
visited their Attorney’s office in July, 2005. The Claimants relied on section 5(3)(b) of the Act,
which provides:


      Where the person injured dies before the expiry of the period prescribed by subsection (2),
      the period with respect to the survival of the cause of action for the benefit of the estate of the
      deceased by virtue of section 28 of the Supreme Court of Judicature Act, shall be four years
      from … the date on which the personal representative first acquired knowledge of the
      accrual of the cause of action….


22.      Consequently, Attorney for the Claimants contended that the four year limitation period
would expire in August 2009. On the other hand, Attorney for the Defendants cited section 7 of



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the Act which set out the relevant facts which constitute the requisite ‘knowledge’ of the accrual of
a cause of action. Sections 7(1) and (2) of the Act provide:

         7. (1)      In this Act, a person first acquired knowledge when he first became aware of any
      of the following facts:
            (a) that the injury in question was significant;


            (b) that injury was attributable in whole or in part to
                  the act or omission which is alleged to constitute
               negligence, nuisance or breach of duty;


          (c) the identity of the defendant;


          (d) where it is alleged that the act or omission was
               that of a person other than the defendant, the
               identity of that person and the additional facts
               supporting the bringing of an action against the
               defendant; and knowledge that any act or omission
               did or did not, as a matter of law, involve
               negligence, nuisance or breach of duty is irrelevant.


         (2)      For the purposes of this section an injury is significant if the person would
      reasonably have considered it sufficiently serious to justify his instituting proceedings
      against a defendant who did not dispute liability and was able to satisfy a judgment.


23.      In her written submissions filed on the 9th April, 2009, Attorney for the Defendants
submitted that the Claimants, being two of the adult children of the deceased, would more likely
than not have acquired knowledge that the deceased was involved in a fatal accident which
resulted in him sustaining personal injuries from which he died, shortly after the time of the
deceased’s death. It was further submitted on behalf of the Defendants that such injuries were
clearly more than trifling or frivolous and could be considered ‘significant’ in the sense that a


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reasonable person would consider it sufficiently serious to justify the institution of legal
proceedings. Indeed, in his oral submissions made to the Court, Mr. Ramcharan on behalf of the
Claimants, conceded that the Claimants, being the adult children of the deceased, had adduced no
evidence to satisfy the Court that they did not acquire knowledge of the accrual of the cause of
action on the 10th March, 2004.


24.      Attorney for the Defendants further submitted that in a case where a motor vehicle leaves
the roadway and collides with a pedestrian standing at the side thereof there was a prima facie
presumption of negligence on the part of the driver of the said motor vehicle: Ellor and Wife v
Selfridge & Co. Ltd (1930) 46 TLP 236; McGowan v Stott (1920) LJKB 357 and Laurie v
Raglan Building Co. Ltd. [1942] 1 K.B. 152. Attorney contended that the Claimants ought to
have known that the deceased’s injuries would have been attributable in whole or in part to the act
or omission of the First Defendant which was alleged to have constituted negligence.


25.      In the judgment of the Court, Attorney for the Defendants has correctly submitted that the
circumstances of the accident made it possible for the Claimants to ascertain the identity of the
First Defendant and her driver. Indeed, no evidence has been deposed on behalf of the Claimants
that they could not ascertain the identities of either the owner or driver of the vehicle. In addition,
Attorney for the Defendants has also correctly submitted that ‘knowledge’ of the accrual of the
cause of action under the said Act does not require knowledge of the facts listed in section 7(1) of
the Act beyond a reasonable doubt. This submission is supported by the learning in the case of
Halford v Brookes and another (1991) 3 All ER 559, a unique case in which the English Court
of Appeal considered section 14 of the Limitation Act, 1980 (“the English legislation”) which is in
similar terms to section 7 of the Act (although not identical). The Court will consider the
differences in the section 14 of the English legislation and section 7 of the Act later in this
judgment. In Halford, Lord Donaldson MR stated at page 573 as follows:


       “The word (‘knowledge’) has to be construed in the context of the purpose of the section,
       which is to determine a period of time within which a plaintiff can be required to start any
       proceedings. In this context ‘knowledge’ clearly does not mean ‘know for certain and
       beyond the possibility of contradiction’. It does, however, mean ‘knowing with sufficient

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       confidence to justify embarking on the preliminaries to issue the writ, such as submitting a
       claim to the proposed defendant, taking legal and other advice and collecting evidence’”.


26.      Accordingly, the Court agrees with Attorney for the Defendants that the Claimants, or at
least one of them, ought to have had knowledge of one or more of the facts specified in section
7(1) of the Act at the time of the deceased’s death on the 10th March, 2004. The Court adopts Lord
Donaldson’s approach in Halford (supra) and finds that the Claimants had knowledge with
sufficient confidence to embark on preliminaries to commencing a claim against the Defendants.


27.      Further, Attorney for the Defendants also cited section 7 (3) of the Act which provides:

                 For the purposes of this section a person’s knowledge includes knowledge which
      he might reasonably be expected to acquire—
              (a) from facts observable or ascertainable by him; or
              (b) from facts ascertainable by him with the help of
                  such medical or other expert advice as it is
                  reasonable for him to seek,
      but there shall not be attributed to a person by virtue of this subsection, knowledge of a fact
      ascertainable only with the help of expert advice so long as he has taken all reasonable
      steps to obtain that advice and where appropriate to act on that advice.


28.      It was therefore argued on behalf of the Defendants that by virtue of section 7(3) of the
Act the requisite knowledge may have been acquired by the Claimants from facts observable or
ascertainable by them. It was also argued on behalf of the Defendants that the Claimants would
not have been taken to have had knowledge of any fact where such knowledge would only have
been ascertainable with the help of expert advice so long as the Claimants had taken all reasonable
steps to obtain that advice. Attorney for the Defendants again referred the Court to Halford (supra)
where it was held that ‘knowledge of facts’ for the purposes of section 14 of the English legislation
did not depend on knowing with the help of legal advice that a particular claim was available,
since legal advice did not fall within the category of appropriate expert advice necessary for
ascertaining knowledge of a fact.



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29.       Accordingly, it was argued by Attorney for the Defendants that the Claimants’
knowledge of the accrual of the cause of action should not be taken as being first acquired in
August 2005 when the Claimants received legal advice that they could bring such an action, but on
the date when they learned of the death of the deceased, the circumstances in which it occurred
(see Dobbie v Medway Health Authority [1994] 4 All ER 450, 455), and acquired knowledge of
any one of the facts enumerated in section 7(1) of the Act.


30.      On the other hand, in his written submissions filed on the 2nd July 2009, Attorney for the
Claimants argued that the English authorities cited by the Defendants offered no assistance since
section 14 of the English legislation was materially different to section 7 of the Act in two
significant areas. Firstly, it was contended that the words “any of” which appear in section 7(1) of
the Act were absent in section 14 of the English legislation. It was argued that section 14 requires
knowledge of all four facts before knowledge can be imputed. Attorney for the Claimants pointed
out that in the case of Dobbie (supra), Lord Steyn, LJ, had made it clear at page 462 that section 14
was in conjunctive terms: it required knowledge of all four facts. On the other hand it was
exhaustive: no knowledge of any further facts was required. Further, Attorney for the Claimants
submitted that on a literal interpretation of section 7 of the Act, the Act required knowledge of
“any” so that once one factor is known, knowledge is imputed and the cause of action accrued.


31.      Secondly, it was submitted that the words “and knowledge that any act or omission did or
did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant” do not
form part of sub-paragraph (d) of section 14(1) of the English Act as they do in section 7(1) of the
Act, but rather refer to the entire section. It was submitted that the effect of this difference is that
locally those words apply only to sub-paragraph (d) whereas in England those words apply to all
the facts enumerated in section 14(1).


32.      Further, in his written submissions filed on the 2nd July, 2009, Attorney for the Claimants
also invited the Court to have regard to the proper interpretation of section 7. Mr. Ramcharan
urged the Court not to ascribe a literal meaning to section 7 since such an approach would “make
the law with respect to accrual of the cause of action more draconian than the position before the
Act was passed which would clearly not be in accordance with the general purpose of the Act”.

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According to Mr. Ramcharan, a literal interpretation could lead to a situation where the time for
bringing an action has expired before the proposed claimant is fully aware that he has suffered
loss. Mr. Ramcharan submitted further that such an interpretation would not be in accordance with
the general purpose of the Act and would lead to an absurd and unjust result and not what
Parliament had intended.


33.      Mr. Ramcharan relied on Bennion on Statutory Interpretation 4th Edition at page 831
which states that the court seeks to avoid a construction that produces an absurd result, since this is
unlikely to have been intended by Parliament. The courts give a very wide meaning to the concept
of ‘absurdity’, using it to include virtually any result which is unworkable or impracticable,
inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a
disproportionate counter-mischief.     Nonetheless, Bennion states that in rare cases there are
overriding reasons for applying a construction that produces an absurd result, for example where it
appears that Parliament really intended it or the literal meaning is too strong (section 312).


34.      Mr. Ramcharan further submitted that according to the Shorter Oxford Dictionary, the
word “any” in the context of section 7 of the Act, could mean “one or more, or some of…”.
Additionally, in affirmative senses the word “any” also meant “every one (of the sort named)”.
Mr. Ramcharan contended therefore that that demonstrated that “the literal meaning of the section
is not so strong as to work against the rule of construction against absurdity”. Consequently, he
urged the Court to ascribe a “strained” construction of section 7 “to get an interpretation which is
more in line with what Parliament intended”. A strained construction is one where on the facts of
the particular case and taken by itself, an enactment has a clear grammatical meaning, but the court
gives it a different meaning (See Bennion section 157 p. 394). According to Bennion a strained
interpretation may be justified where “the consequences of a literal construction [are] so
undesirable that Parliament cannot have intended them.”(page 395).


35.      Mr. Ramcharan contended that Parliament intended to give section 7 a meaning which is
similar in terms with the provisions of section 14 of the English Act. Accordingly, Mr. Ramcharan
argued, in order to impute knowledge to a claimant, he must first be aware of all four facts listed in
section 7. He argued that since the claimants deferred to their mother who was legally entitled to

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a grant of letters of administration of the deceased’s estate, they had no interest, legal or otherwise,
to try to ascertain the identity of the proper defendant. Accordingly, it was submitted that the
earliest that the Claimants, or one of them, would have been aware of the four factors enumerated
in section 7(1) of the Act would have been the 25th July 2004, the date of death of their mother.
The outcome of this, it was argued, would be that the limitation period would expire on the 25th
July 2008, at the very earliest.


36.      The Court does not accept Mr. Ramcharan’s several arguments. Indeed, the evidence
adduced on behalf of the Claimants does not support such arguments. The Court has made the
point before that there is no evidence before the Court that the Claimants could not or did not
ascertain the identity of the proper defendant until after the death of their mother and indeed the
same reasoning applies to the others facts itemized in section 7(1) of the Act. In the circumstances
of this case, in the Court’s view, although the Court has set out Mr. Ramcharan’s arguments in
detail, it is not necessary to make a determination of the interpretation of section 7(1) of the Act or
to determine whether, as Mr. Ramcharan has argued, that the Court ought not to give a literal
interpretation but a strained interpretation to section 7(1) of the Act.


37.      Alternatively, Mr. Ramcharan in his written submissions filed on the 2nd July, 2009, has
submitted that it is instructive that the Act provides that with respect to paragraph (d), knowledge
that the act complained of was in law negligent, a nuisance or a breach of duty is irrelevant.
Attorney argues that the implication is that with respect to the other three facts, such knowledge is
relevant. Therefore, it is argued on behalf of the Claimants, that with respect to the facts listed in
section 7(1)(a), (b) and (c), the Claimants must have had knowledge that the act complained of
constituted in law negligence, nuisance, or breach of duty. In addition, Mr. Ramcharan further
contended that knowledge that an action could be maintained was also relevant. Consequently, he
submitted that the Claimants would have acquired knowledge that they had a cause of action in
August 2005 when they received legal advice about the deceased’s estate.          In that event, it was
argued that the limitation period would expire in August 2009.


38.      In the judgment of the Court, there is nothing in section 7(1) to suggest that it is a
relevant fact that the Claimants did not have knowledge that an action could be maintained in the

                                                                                                     16
circumstances of this case. Accordingly, the Court does not accept Mr. Ramcharan’s argument. I
hold the view that for the purpose of the limitation period, it cannot be argued that time should be
computed from the date on which the Claimants allegedly acquired knowledge of the accrual of the
cause of action, that is, July 2005 or August 2005.


SUB-ISSUE 1 (b)


  Whether for the purpose of the limitation period, time should be computed from the date on
 which letters of administration were granted to the Claimants as legal personal representatives
 of the deceased, that is, the 22nd September, 2006


39.       It was submitted on behalf of the Claimants that the provisions of section 5(3)(b) of the
Act were of paramount significance since they provide the earliest date from which time began to
run under the Act in the circumstances of this case. Section 5(3)(b) which has already been set out
above provide that where the person injured dies before the period prescribed by subsection (2),
the period with respect to the survival of the cause of action for the benefit of the estate of the
deceased shall be four years from the date on which the personal representative first acquired
knowledge of the accrual of the cause of action. Section 5(5) of the Act defines “personal
representative” for the purpose of section 5 as including “any person who is or has been a personal
representative of the deceased and regard shall be had to any knowledge acquired by any such
person while being a personal representative”.


40.      Mr. Ramcharan on behalf of the Claimants submitted that by virtue of section 2 of the
Wills and Probate Act Chap 9:03 a “representative” is defined as “the executor or the
administrator for the time being of a deceased person”. Mr. Ramcharan also submitted that in the
case of intestacy a person is only a personal representative when the grant of letters of
administration is made. He argued further that by virtue of section 5(5) of the Act regard is to be
had to knowledge acquired by a personal representative when he was in fact a personal
representative and at no other time. It was argued on behalf of the Claimants that “knowledge
acquired before he became a personal representative does not count until he becomes a personal
representative”. Mr. Ramcharan therefore submitted that the date on which the grant of letters of

                                                                                                 17
administration was made, the 22nd September, 2006, should be deemed to be the date when the
Claimants first acquired knowledge of the accrual of the cause of action pursuant to section 5(3)(b)
of the Act.


41.      Mr. Ramcharan in his written submissions filed on the 2nd July, 2009, conceded that
section 5(5) at its highest “could be construed to mean that knowledge acquired by a personal
representative before he actually became a personal representative would be imputed to him once
the grant of letters of administration was made, which in the instant case is the 22nd September
2006”.


42.      On the other hand, Defendants conceded that in the case of intestacy a claim on behalf of
the intestate’s estate cannot be initiated until there has been a grant of letters of administration.
Reliance was placed on the case of Ingall v Moran (1944) 1 All ER 97. In that case an action was
brought on behalf of the estate of the intestate before letters of administration were granted. The
Court of Appeal held that an administrator has no cause of action vested in him before he had
obtained letters of administration; accordingly, he had no cause of action vested in him at the date
when the action was commenced; and that the action failed despite the fact that the letters of
administration had not been granted until after the expiration of the relevant limitation period.


43.      Attorney for the Defendants in her written submissions filed on the 9th April, 2009,
distinguished the case of S.M.K.R. Meyappa Chetty v S.N. Supramanian Chetty [1916] A.C.
603, an appeal to the Privy Council from the Supreme Court of Singapore. In the relevant
legislation with respect to the limitation of suits, it was provided that where a person who would, if
he were living, have a right to institute a suit or make an application, dies before the right accrues,
the period of limitation shall be computed from the time when there is a legal representative of the
deceased capable of instituting or making such suit or application. It is clear from that provision
that Parliament intended that time would not begin to run for the survival of causes actions until a
grant of letters of administration had actually been made.


44.      That case was considered by Sealey J. in the unreported case of Krishnadaye Chandree
v Joseph Gilbert and David Gilbert H.C.A. No. 340 of 1996. Sealey J. made it clear that

                                                                                                    18
Meyappa Chetty was decided within the context of the specific statutory provisions in Singapore
referred to above and therefore she found the learning in the case of no relevance or assistance.
The question before Sealey J. was whether the plaintiff’s claims under the provisions of the
Supreme Court of Judicature Act Chap. 4:01 and under the Compensation for Injuries Act
(supra) were statute barred in that the cause of action accrued more than four years before the
commencement of the action. Sealey J. determined the issues in the context of the Limitation of
Personal Actions Ordinance Ch. 5 No. 6 (sections 3 and 5) and the provisions of the
Compensation for Injuries Act (supra). With respect to the latter Act, Sealey J. made it clear that
the matter did not stand abated until an executor was appointed and that the suggestion of attorney
for the plaintiff that the cause of action crystallized and became vested in the plaintiff only on the
grant of the letters of administration cannot be accepted.


45.      It is the view of the Court that the conjoint effect of sections 5(3)(b) and 5(5) of the Act is
that in the circumstances of this case time began to run from the 10th March, 2004 when the
Claimants acquired knowledge of the accrual of the cause of action against the Defendants.
Moreover, in the judgment of the Court, to hold that time begins to run from the date of the grant
of letters of administration to the Claimants would lead to an absurdity since it would mean that a
claimant may take perhaps twenty years to obtain a grant of letters of administration and would in
those circumstances be entitled to rely on the provisions of sections 5(3)(b) and 5(5) of the Act and
to contend that he was within time to commence a claim for the benefit of the estate of the
deceased since according to the argument advanced on behalf of the Claimants time only runs from
the date of the grant of letters of administration to the Claimants. In the Court’s view, such an
interpretation would defeat the purposes of the Act. In the judgment of the Court, the Claimants
cannot succeed on this issue.


ISSUE (II)


Whether the instant case is a suitable case for the Court to exercise its discretion pursuant to
section 9 of the Act to override the limitation period in section 5 (2) of the Act and permit the
Claimants’ claim to continue



                                                                                                     19
46.        Section 9 of the Act empowers the Court to extend limitation periods where it appears
that it would be equitable to do so. Section 9(1) provides as follows:


      9. (1) Where it appears to the Court that it would be inequitable to allow an action to proceed
      having regard to the degree to which
             (a) the provisions of section 5 or 6 prejudice the plaintiff or any person whom he
             represents; and
             (b) any decision of the Court under this subsection would prejudice the defendant or
             any person whom he represents,
      the Court may direct that those provisions shall not apply to the action or to any specified
      cause of action to which the action relates.


47.      Mr. Ramcharan submits on behalf of the Claimants that should the Court find that the
Claimants’ claim was filed outside the limitation period, the Court should exercise its discretion
pursuant to section 9 of the Act to override the limitation period specified in section 5 of the Act.
In the exercise of its discretion, the Court must not only balance the prejudice to the Claimants and
the Defendants pursuant to section 9(1) of the Act but is duty bound to consider “all the
circumstances of the case” and to have regard in particular to the matters set out at section 9(3) of
the Act. Section 9 (3) provides:


         “In acting under this section the Court shall have regard to all the circumstances of the
 case and in particular to—
          (a) the length of, and the reasons for, the delay on the part of the plaintiff;


          (b) the extent to which, having regard to the delay, the evidence adduced or likely to be
          adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action
          had been brought within the time allowed by section 8 or, as the case may be, section 9;


          (c) the conduct of the defendant after the cause of action arose, including the extent to
          which he responded to requests reasonably made by the plaintiff for information or



                                                                                                      20
            inspection for the purpose of ascertaining facts which were or might be relevant to the
            plaintiff’s cause of action against the defendant;


            (d) the duration of any disability of the plaintiff arising after the date of the accrual of
            the cause of action; or


            (e) the extent to which the plaintiff acted promptly and reasonably once he knew
            whether or not the defendant’s act or omission to which the injury was attributable,
            might be capable at that time of giving rise to an action for damages;


            (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice
            and the nature of any such advice he may have received.”


48.     As to section 9(3)(a) and the length of the delay, the Court notes that the delay in the
filing of this claim is only one day. The reasons advanced by the Claimants for the delay are
contained in the affidavit of the First Claimant filed on 9th February, 2009). According to this
First Claimant


      (i)      Their mother, Nancy Young, the wife of the deceased, had difficulty coping with the
               sudden death of the deceased and then passed away three months after the death of
               the deceased, having not yet applied for letters of administration of the estate of the
               deceased although she had made preliminary enquiries of her Attorneys concerning
               an application for letters of administration.


      (ii)     Although there were five children of the deceased, they deferred to their mother.


      (iii) The Claimants were devastated at the loss of both their parents in a short period of
               time. It was a difficult time and they avoided discussing their parents and how they
               had died. Consequently, the Claimants waited one year from the death of Nancy
               Young to apply for letters of administration of the estates of both parents.



                                                                                                           21
        (iv) They were only advised by their Attorneys in or about August 2005 that a claim could
              be filed against the Defendant.

        (v)   Letters of administration of the estate of the deceased were granted on 22nd
              September, 2006.

        (vi) The Claimants had to seek the assistance of accountants and other experts in the field
              of supply of materials for construction as they did not have full details of the
              deceased’s business dealings and income.


49.       In the view of the Court, the reasons set out in the affidavit of the First Claimant do not
justify the delay in this matter.


50.       In any case, the Claimants had been in receipt of legal advice since August, 2005 and had
obtained a grant of letters of administration since September, 2006. The Court finds therefore that
the Claimants have shown no good reason for the delay, as short as it may be.


51.       As to the consideration at section 9(3)(b) of the Act whether the extent to which, having
regard to the delay, the evidence adduced by the Claimants or the Defendants may be less cogent,
it was submitted on the part of the Defendants that the delay in initiating this action would
negatively impact upon the evidence in this case since the evidence capable of being adduced by
the Defendants was likely to be less cogent than if the action had been brought promptly and/or
within the limitation period. Attorney for the Defendants contended that the Defendants’ defence
of inevitable accident placed a high burden of proof on the Defendants and therefore they would be
prejudiced since the lapse of time was likely to affect the quality of their evidence. It was
contended that the driver of the First Defendant’s motor vehicle having died as a result of the
collision the Defendants would have to rely on the evidence of persons who were not directly
involved in the collision and whose recollection would therefore become hazy with such a lapse of
time. The Court notes however that it is not unusual for the recollection of witnesses to be
dimmed by the passage of time from the date of the accrual of a cause of action and the date of
trial. The claim having been filed only one day after the expiration of the limitation period, the



                                                                                                  22
Court does not accept without more the Defendants’ submission that the quality of their evidence
must necessarily be less cogent than if the action had been brought within the statutory period.


52.      The third factor for consideration by the Court under section 9(3)(c) of the Act is the
conduct of the Defendants after the cause of action arose.


53.      By letter dated the 6th September 2006, Attorneys for the Claimants, while not giving
notice of intended legal action, wrote to the Second Defendant indicating inter alia that they had
been instructed that their insured had accepted full liability for the accident. Attorneys concluded
the letter by requesting that the Second Defendant advise them of the Second Defendant’s position
in relation to the above so that they (the Claimants) might forward details of their clients’ claim.
By letter dated the 2nd October 2006, the Second Defendant through Mrs. Goura Bissessar replied
to Attorneys for the Claimants in the following terms:
         “We refer to your letter dated September 06, 2006 in connection with the matter at
 caption.
         This is to confirm that we are willing to negotiate an amicable settlement of your client’s
claim and ask that you kindly submit details of the claim together with supporting documents.”


54.         The Claimants failed to comply with this request.       According to Mrs. Bissessar’s
affidavit filed on the 20th May, 2009, apart from the above letters, there has been no
communication whatever between the Second Defendant and the Claimants and/or their Attorneys
through herself or any other employee of the Second Defendant except for one telephone call
received on the 10th July, 2008, (almost four months after the Claim Form was filed). According
to Mrs. Bissessar, Attorney for the Claimants indicated that they had filed a legal claim in this
matter and would be serving same on the Second Defendant on the said 10th July, 2008. Further,
according to Mrs. Bissessar, Attorney for the Claimants enquired whether the Second Defendant
would still be willing to negotiate settlement of this matter.


55.         By the affidavit of the First Claimant filed on the 9th February, 2009, the Claimants
never contended that they had been relying on the Second Defendant’s representation or that they
had been led to believe that liability was not a live issue. Furthermore, they have never disputed

                                                                                                   23
Mrs. Bissessar’s assertions contained in her affidavit of the 20th May, 2009.       Consequently, the
Court accepts Mrs. Bissessar’s evidence that subsequent to her letter of the 2nd October, 2006 there
was no communication from the Claimants to the Second Defendant in response to her request.


56.      It has been submitted on behalf of the Defendants that the Second Defendant acted in
good faith and sought to settle the matter amicably outside the courts. On the other hand, it was
argued in the Claimants’ written submissions filed on the 9th February, 2009, “that the Claimants
through their Attorney-at-Law were led to believe by the correspondence and telephone
conversations of the Second Defendant that the question of liability was not a live issue and that
they were ‘willing to negotiate an amicable settlement of your client’s claim’. Having taken such a
position it would be unconscionable for the Defendants to pray in aid the limitation point.” There
is no evidence to support the submission advanced above and at paragraph 4 of the Claimants’
written submissions filed on the 9th February, 2009, that there were numerous telephone
conversations with the officers of the Second Defendant.


57.      The Claimants relied on the unreported case of Perry Chin Kung Chew v Inland and
Off Shore Contractors Limited and Clint Chin Kung Chew H.C.A. No. 1305 of 2006 which
concerned an action in negligence wherein the claimant was seeking damages for personal injuries.
The action was filed 4 years and 11 months after the accrual of the cause of action. Liability was
not an issue in that case but the defendants contested the claim on the issue of limitation. Ventour
J. held that he was satisfied that section 9(1) of the Act conferred on the court an unfettered
discretion in deciding whether or not to allow the action to proceed in circumstances where the
action was brought after the expiry of four years stipulated by section 5(2) of the Act.
Additionally, Ventour J. opined that he must consider not only the prejudice to be suffered by the
parties but also all the circumstances of the case and in particular the several matters referred to in
paragraphs (a) to (f) of section 9(3) of the Act. The Court held that the limitation period
established by section 5 of the Act shall not apply to the action.


58.      It was further submitted on behalf of the Claimants that in this case the Defendants would
suffer no prejudice since the Second Defendant, the insurer, had already accepted liability and was
proceeding to negotiate a settlement of the Claimants’ claim. It was therefore submitted that in all

                                                                                                    24
the circumstances the Court ought reasonably to exercise its discretion under section 9 of the Act
in favour of the Claimants.


59.       On the other hand, the First and Second Defendants denied that they unequivocally
admitted liability and adduced evidence to this effect. In the supplemental affidavit of Mrs.
Bissessar filed on the 22nd May, 2009, Mrs. Bissessar deposed to a settlement between the
Defendants and Gulf Insurance Limited with respect to its insured Ian Kong who was injured in
the same collision. A true copy of the Release and Discharge between Gulf Insurance Limited and
First and Second Defendants dated 28th May, 2004 was exhibited to this affidavit. In the Release
and Discharge, it was explicitly stated that the payment to Ian Kong was not deemed to be an
admission of liability on the part of the Defendants. Furthermore, the Second Defendant asserted
that it did not admit liability in the letter dated the 2nd October 2006 and maintained that none of its
employees admitted liability during any telephone conversations with the Attorney for the
Claimants.


60.      Having regard to the above submissions, the following sub-issue falls to be determined:


          Whether the Second Defendant’s representation contained in its letter dated 2nd October
         2006 to “negotiate an amicable settlement” of the Claimants’ claim amounts to an a
         admission of liability


61.      Attorney for the Defendants submitted that the representation contained in the Second
Defendant’s letter dated the 2nd October 2006 implied no more than a willingness to negotiate a
closure or settlement of the matter outside of the courts. It could not be taken to imply that the
defence of inevitable accident relied on by the Defendants would not be relied upon if the
negotiations failed. Moreover, it did not mean that the Defendants were conceding and/or implying
that proceedings or filing of any action should be stayed or delayed and/or if negotiations failed,
and proceedings were started out of time that they would not rely on the limitation period as a
defence. Attorney further submitted that what could be implied by the said statement contained in
the letter was that the details of the Claimants’ claim requested by the Second Defendant would be
used by the Second Defendant “to assess their liability therein, to set a reserve to be put on the

                                                                                                     25
Claimants’ claim, if any, and/or to make offers of settlement if the Second Defendant, upon
assessment of the Claimants’ claim, felt same was warranted”.


62.      The Defendants placed reliance on the unreported case of Claude Denbow and Another
v The Attorney General and Others CV2005-00740 where Pemberton J. stated that an admission
may be expressed or implied but it must be clear [paragraph 8]. Indeed to amount to an admission,
the statement must be clear and unequivocal.




63.      The Court agrees with Attorney for the Defendants that the representation contained in
the Second Defendant’s letter dated the 2nd October 2006 that the Second Defendant was “willing
to negotiate an amicable settlement of your client’s claim”, is not clear and unequivocal and does
not amount to an admission of liability.


64.      In addition, Attorney for the Defendants submitted that the Rules and the Practice
Direction on Pre-Action Protocols (2005) encourage parties to enter into negotiations and take all
reasonable steps to resolve their dispute amicably before issuing a claim. Consequently, litigation
should be a last resort. Reliance was placed on the unreported case of Ken Gajadharsingh v the
Water and Sewerage Authority H.C.A No. S-1316 of 2004 where C. Kangaloo J. stated at
paragraph 22 that “…persons or parties may try to avoid litigation by settling same and that these
terms of settlement do not really amount to any admission of liability”


65.      Furthermore, the Court accepts the evidence of Mrs. Bissessar where she deposed at
paragraph 11 of her affidavit of the 20th May 2009, that it is the policy of the Second Defendant to
attempt to avoid litigation and to negotiate and settle bodily injury claims rather than incur the cost
of defending them in court and that this is often done even where the insured of the Second
Defendant may not be wholly or partially liable for the loss or damage in issue.


66.      In the Court’s view, the Second Defendant’s conduct was reasonable and the
representation in its letter dated the 2nd October, 2006, did not amount to an admission of liability
in law. At its highest the representation constituted an offer to settle only. The Court has also

                                                                                                    26
considered the case of Julie Belt v Basildon & Thurrock NHS Trust [2004] EWHC 783 (QB).
That case concerned an appeal which called upon the Court to determine whether two letters from
the defendant’s insurers to the claimant’s solicitors, dated the 17th May, 2000 and the 4th June,
2001 respectively, contained admissions of liability or mere offers to settle only. On the 17th May,
2000, the insurers wrote confirming that they had completed their inquiries with regard to liability
and             stated              in               the          penultimate                paragraph:
"We have therefore taken all aspects of this case into consideration and are willing to offer 50 per
cent contribution towards liability in this case."


67.      Further on the 4th June, 2001 the insurers wrote another letter which contained the
following statements:
"We can confirm we have concluded our inquiries concerning the issue of liability. We [are] able
to confirm here that we are prepared to settle your client’s claim [for compensation].
Furthermore, we [are] prepared to agree that the claim should be settled on the basis of a 20 per
cent contributory negligence.”


68.      Having considered the facts of the case, the learned Judge upheld the judgment of the
judge below and concluded at paragraph 19 that before the issue of proceedings it was at no time
suggested by the claimant in correspondence that primary liability was not in issue. There were in
this case negotiations in correspondence between the parties as to issues of apportionment but
there was at no stage an admission of primary liability. Accordingly, the letters in question
contained not admissions of liability but offers to settle only. Furthermore, the learned Judge
concluded that in any event the correspondence were clearly “without prejudice” negotiations and
could not be referred to in any event in subsequent litigation.


69.      Accordingly, in the Court’s view, the Claimants’ delay in filing their claim cannot be
justified by their contention that they were led to believe by the correspondence and telephone
conversations of the Second Defendant that the question of liability was not a live issue.


70.      As to the second sub-issue, whether the said representation estops the Defendants from
relying on the limitation point as its defence, it was submitted on behalf of the Claimants that in

                                                                                                    27
light of the representation contained in the Second Defendant’s letter dated the 2nd October 2006, it
would be “unconscionable for the Defendants to pray in aid the limitation point”.


71.      Attorney for the Defendants submitted that such a representation did not estop the
Defendants from relying on the limitation point.          Reliance was placed on the case of Ace
Insurance SA - NV v Surendranath Seechurn (2002) EWCA Civ. In that case, Ward L.J. of the
Court of Appeal (Civil) considered the relevant law and concluded that the following relevant
questions remained to be determined.
         i) Is there a clear, unequivocal, unambiguous and unconditional promise by the insurers
         that they will not raise the defence that the action is statute barred. The focus has to be on
         whether or not they were giving up that right.


         ii) The promise must be construed objectively, not subjectively. The question is whether
         the correspondence can reasonably be understood to contain that particular promise. It
         does not matter what Mr. Seechurn thought it meant nor does it matter what a layman
         might have thought, as Mr. Shaw contends, unless, of course, that layman is a passenger
         on the Clapham omnibus.


         iii) The third question is whether Mr. Seechurn relying on the promise, altered his
         position to his detriment or whether it would be inequitable or unconscionable not to hold
         the insurers to their promise.


72.      Having considered the submissions advanced by the parties, in the Court’s view, there
was at no stage in the negotiations between the parties any clear, unequivocal, unambiguous and
unconditional promise by the Second Defendant that they will not raise the defence that the action
is statute barred. Accordingly, the Defendants are not estopped from raising the limitation point.
In addition, in light of the authorities cited to the Court and the circumstances of the case, I do not
find it unconscionable to permit the Defendants to rely on the limitation point. In addition, the
Court does not find it necessary to consider the alternative argument advanced by Attorney for the
Defendants that the representation is privileged and inadmissible in these proceedings.



                                                                                                    28
73.      As to section 9(3)(c) of the Act, the Court has found that the Defendants have been co-
operative and I have found no unreasonable conduct on their part. In the Court’s view, there is
nothing in the Defendants’ conduct which would lead the Court to exercise its discretion to allow
the claim to proceed under section 9 of the Act.


74.      As to section 9(3)(d) of the Act and the issue whether there was any period of any
disability of the Claimants after the cause of action arose, this is not applicable to this case. There
is no evidence before the Court which reveals that the Claimants were under any disability as
defined by section 2(3) of the Act.


75.      As to section 9(3)(e) of the Act, the Court must consider the extent to which the
Claimants acted promptly and reasonably once they knew whether or not the Defendants’ act or
omission to which the deceased’s injuries and subsequent death were attributable, might be
capable at that time of giving rise to an action for damages. Attorney for the Defendants submitted
that even if the Court were to accept that the Claimants acquired knowledge of the accrual of the
cause of action in August 2005, the Claimants failed to act promptly and reasonably having taken
some thirty months thereafter to commence the claim.


76.      As to section 9(3)(f) of the Act, according to the Claimants, they obtained legal advice
either in July or August 2005.          Consequently, they applied for and obtained letters of
administration of the estates of both the deceased and their mother. Further, on the 6th September,
2006, their Attorney wrote to the Second Defendant opening negotiations so to speak. The Second
Defendant responded by letter dated the 2nd October, 2006, but thereafter there was no compliance
with the Second Defendant’s request for the Claimants’ Attorney to forward details of the claim
together with supporting documents.         Indeed, there was complete silence on the part of the
Claimant’s Attorney and/or the Claimants until the 10th July, 2008 exactly four months after the
claim was filed. After the 10th July, 2008, the claim form could not be served without the order of
the Court granting an extension of time. Indeed, the claim form was only served on the First
Defendant approximately seven months after it was filed, but the Court had at that stage made no
order extending the time for its service.



                                                                                                    29
77.      The Court has considered the case of Hartley v Birmingham City District Council
[1992] 2 All ER 214. In that case, the action was filed one day out of time. The Court of Appeal
made it clear that the only proper question for the judge to ask himself in exercising his unfettered
discretion whether to disapply a limitation period was whether it would be equitable, that is, fair
and just, to allow the action to proceed. Section 9(3) of the Act compels the Court to consider all
the circumstances of the case and in particular paragraphs (a) to (f). The Court has also considered
the unreported case of Derryck Mitchell v Kumar Bickraj and The Attorney General of
Trinidad and Tobago H.C.A. No. 617 of 2004. There Jamadar J., as he then was, expounded the
following principles:




         “The Legislature has determined that four years is the time limit within which actions
         such as the proposed one shall be commenced. That is the declared intention of
         Parliament. Courts ought not to extend statutory limitation periods without good cause
         and section 9(3) describes at least six considerations which a Court must have regard to.
         These considerations are not weighted. That is a matter Parliament has left to the Courts.
         The overriding consideration is “all the circumstances of the case”, which gives the
         Courts a fair measure of latitude. However, as with all judicial discretions, this one must
         be exercised in a fair and reasonable manner, bearing in mind the relevant facts and
         applying the appropriate legal considerations. Judicial discretion is not some amorphous
         power to be exercised whimsically. Such an exercise of power would be arbitrary.”




78.       Having regard to all the circumstances of the case and the considerations set out in
section 9(3) of the Act, which considerations the Court has examined in detail and weighed, and in
seeking to carry out that balancing exercise in order to decide whether it would be inequitable or
not to override the limitation period set out in section 5 and to allow this claim to proceed, the
Court is not persuaded that it should exercise its discretion to direct that section 5 of the Act shall
not apply to this claim.   Having regard to the decision of the Court, it is not necessary for the
Court to determine the other issues, but having regard to the importance of the procedural points

                                                                                                    30
and the extensive submissions filed in respect of the second and third applications filed before the
Court, the Court will consider them.




ISSUE (III)


        Whether service of the Claim Form on the Second Defendant can be deemed good and
       proper service on the First Defendant pursuant to Part 5.10 of the Rules


 79.            By the Claimants’ application filed on the 14th May, 2009, the Claimants sought an
 order that the service of the Claim Form and Statement of Case on the Second Defendant be
 deemed good and proper service on the First Defendant pursuant to Part 5.10 of the Rules.


80.      The general rule is that a claim form must be served personally on the defendant: Part 5.1
of the Rules.   Attorney for the Defendants cited the case of Mark Smith v David Probyn and
PGA European Tour Limited [2000] EWHC QB 136, where upon examining the English rule
which permitted service on the party’s solicitor, Morland J. ruled that there had not been effective
service on the defendants in that the defendants’ solicitors were not authorised to accept service on
behalf of the defendants in accordance with the English rule 6.4.


81.       Part 5.10 of the Rules provides for alternative methods of service of a claim form. By
virtue of Part 5.10(1), a party may choose an alternative method of service. By virtue of Part
5.10(2), in order to have service ratified by the court, a claimant must prove service to the
satisfaction of the court by filing an affidavit giving details of the method of service used, showing
that the person intended to be served was able to ascertain the contents of the documents, or it is
likely that he would have been able to do so, and stating the time when the person served was or
was likely to be in a position to ascertain the contents of the documents.


82.      The Claimants have failed to adduce any evidence to satisfy the Court of the facts and
matters required to be proved under the said Rule 5.10(2). The only evidence adduced has been
contained in the affidavit of the First Claimant filed on the 14th May, 2009 wherein she deposed

                                                                                                   31
that she was told by her Attorney and verily believe that an oral request was made to Mrs.
Bissessar that service be accepted on behalf of both Defendants.   According to the First Claimant,
“this request was not refused though not confirmed in writing”. The First Claimant has exhibited
to that affidavit her Attorney’s letter dated the 10th July, 2008, whereby the claim form and
statement of case were forwarded to the Second Defendant. According to the First Claimant’s
affidavit, the Claimants’ Attorney understood that service was thereby effected on both
Defendants. The Court does not accept that contention. There is in that letter absolutely no
reference to service of the claim form on the Second Defendant on behalf of the First Defendant
and the Court considers that such a statement would normally have been included in such a letter.
Further, the Attorney has not sworn an affidavit in this matter and the evidence of the First
Claimant is at best hearsay. Mrs. Bissessar in her affidavit filed on the 20th May, 2009, deposed
that when so requested, she categorically stated that she would not and made a contemporaneous
note of the telephone conversation which she exhibited to her affidavit. She also deposed that it
has never been the policy of the Second Defendant to accept service of claim forms filed in legal
matters on behalf of its insured. Moreover, there is no evidence before the Court which establishes
that the First Defendant ever authorised the Second Defendant to accept service on her behalf.
Additionally, in her affidavit dated the 20th May 2009, the First Defendant deposed inter alia that
prior to the 31st October, 2008 (the date when she was personally served with a copy of the claim
form) she had not been informed by anyone in any way whatsoever that the Claimants had
commenced this claim.      In all the circumstances, the Claimants have failed to satisfy the
requirements of Rule 5.10 and the Court finds that service of the claim form on the Second
Defendant was not good and proper service on the First Defendant pursuant to Rule 5.10 of the
Rules.




ISSUE (IV)


         Whether the Court should strike out the claim against the First Defendant when the First
         Defendant was served with a photocopy and not a sealed copy of the Claim Form, after
         the four month period for service prescribed by Part 8.13 of the Rules, and in the absence



                                                                                                32
             of an order of the Court extending the period within which the Claim Form may be
             served under Part 8.14 of the Rules


83.          Attorney for the Defendants submitted that service of a photocopy of the claim form on
the First Defendant amounted to a breach of Parts 3.1(5), 8.1(1) and 8.1(3) of the Rules. In
particular, it was submitted, Part 3.1(5) requires the claim form to bear the seal of the Supreme
Court. Attorney cited the case of Hoddinott and others v Persimmon Homes (Wessex) Ltd.
[2007] EWCA Civ 1203 at para. 57 where the English Court of Appeal acknowledged that sending
a copy of the claim form did not constitute service, although in Hoddinott the copy of the claim
form was sent to the defendant within the four month period and so it did bring to the attention of
the defendant the nature of the claims that the claimants were making in the proceedings. That is a
different situation from the proceedings before the Court. In addition, in Zuckerman on Civil
Procedure- Principles of Practice, second edn. at para. 4.38, it is stated inter alia that service of
the claim form is effective, generally speaking, only if the actual claim form issued by the court is
conveyed to the defendant. The author goes on to say, however, that where service by fax or other
electronic means is authorised then it is obvious that the original will not be served. In addition, at
para. 4.49, it is stated that notifying the defendant of the fact that the claim form has been issued,
or sending a claim form that has not been issued and sealed by the court, does not amount to valid
service.


84.          Further, it was submitted on behalf of the Defendants that Part 8.13(1) required a claim
form to be served within four months after the date when the claim was issued. Rule 8.14 permits
the claimant to apply for an order extending the period within which the claim form may be served
and stipulates the manner in which such an extension may be sought.


85.          Part 8.14 of the Rules provides as follows:
      (1)     The claimant may apply for an order extending the period within which the claim form
               may be served.


       (2)     The general rule is that an application to extend the time for service must be made
               within the period for serving the claim form specified by rule 8.13.

                                                                                                    33
      (3)     If the claimant applies for such an order after the end of the period specified by rule
              8.13, the court may make such an order only if it is satisfied that the claimant has
              taken all reasonable steps-
                       (i) to trace the defendant; and


                       (ii) to serve the claim, but has been unable to do so; and
              when the claimant has acted promptly in making the application.


      (4)     An application for an order extending the time for service may be made without notice
              but it must be supported by evidence.


86.         Attorney for the Defendants therefore submitted that the Claimants were in contravention
of Rules 8.13 and 8.14 when they served the claim form and statement of case on the First
Defendant outside the four month period prescribed by Rule 8.13 without having obtained the
Court’s order permitting them to do so. Furthermore, it was argued that the Claimants failed to
satisfy the Court that they had taken all reasonable steps to trace the First Defendant and serve the
claim, but had been unable to do so.


87.         According to paragraph 19 of Claimants’ written submissions filed on the 8th May, 2009,
the reason advanced by the Claimants as to why the First Defendant was not served with the claim
within the time period permitted by the Rules was that there was, at the very worst, a
misapprehension on the part of the Claimants that the Second Defendant was going to accept
service for the First Defendant, based on a conversation between the Claimants’ Attorney at Law
and the representative of the Second Defendant. Nonetheless, the Claimants failed to adduce any
admissible evidence which proved that they were in fact operating under a misapprehension that
the Second Defendant would accept service for the First Defendant. Additionally, as the Court has
already ruled, the Claimants failed to adduce any admissible evidence that the Second Defendant’s
representative did in fact agree to accept service for the First Defendant via a telephone
conversation with the Claimants’ Attorney.



                                                                                                  34
88.           In the circumstances, the Court finds that the Claimants’ service of a photocopy of the
claim form upon the First Defendant amounts to irregular service. Further, the Court finds that
service of the claim form outside the four month period prescribed by Part 8.13 of the Rules
without an order permitting service on the 31st October, 2008, does not amount to valid service.


89.           As to the issue whether the Court ought to strike out the claim in the circumstances of
this case, the Court will return to this later.


ISSUE (V)


                   Whether the First Defendant has waived any irregularity in the service of the Claim
                   Form and submitted to the jurisdiction of the Court by failing to comply with Part
                   9.7 of the Rules


  90.               By notice of application filed on the 27th April 2009, the Claimants sought a
  declaration that the First Defendant had waived any irregularity in the service of the claim form
  by failing to comply with Part 9.7 of the Rules, and in the alternative, an order that the time for
  the service of the claim form and statement of case be extended to the 31st October, 2008. On
  the 12th November, 2008, the First Defendant entered an appearance to the claim and on the 28th
  November, 2008, the First Defendant filed her Defence. At paragraph 2 of her Defence, the First
  Defendant contended inter alia that the claim form which was purportedly served on her on the
  31st October, 2008, had no validity as it was not served within four months of the date of issue.
  She further contended that the claim form had no court order attached to facilitate service
  approximately 7 months after its issue.


91.                 Part 9.7 of the Rules provides under the rubric - Procedure for disputing court’s
jurisdiction:


        (1)     A defendant who wishes-
                 (a) to dispute the court’s jurisdiction to try the claim; or
                 (b) to argue that the court should not exercise its jurisdiction,

                                                                                                   35
        may apply to the court for an order declaring that it has no such jurisdiction or should
        not exercise any jurisdiction which it may have.
        (2)   A defendant who wishes to make such an application must first enter an appearance.
        (3)   An application under this rule must be made within the period for filing a defence.
        (4)   An application under this rule must be supported by evidence.
        (5)   If the defendant-
               (a) enters an appearance; and
               (b) does not make such an application within the period for filing a defence,
      he is treated as having accepted that the court has jurisdiction to try the claim.


92.           Counsel for the Claimants placed great reliance on the case of Hoddinott and others
v Persimmon Homes (Wessex) Ltd. (supra). In that case, the English Court of Appeal held that
“jurisdiction" in CPR 11 [identical to Part 9.7 of the Rules] was wide enough to capture disputes as
to service of a claim form. According to Dyson L.J., it is no answer to say that service of a claim
form out of time does not of itself deprive the court of its jurisdiction, and it is no more than a
breach of a rule of procedure. It is the breach of the rule concerning the service of a claim form
within the prescribed time which provides the basis for the argument by the defendant that the
court should not exercise its jurisdiction to try the claim. Accordingly, the Court of Appeal ruled
that CPR 11(1)(b) was engaged in such a case.


93.           In Hoddinott (supra) on the 2nd October, 2006, the defendant applied to set aside an
order made on the 13th September, 2006 extending the time for service of the claim form to the
22nd November, 2006. The claim form had been issued on the 22nd May, 2006.                  On the 5th
October, the parties were notified by the court that the application would be heard on the 21st
December. On the 21st November, the claim form and particulars of claim were served on the
defendant. On the 28th November, the defendant filed an acknowledgement of service indicating
an intention to defend the claim but not indicating an intention to contest jurisdiction. The court
held that a defendant who has filed an acknowledgement of service but did not make an
application pursuant to CPR 11(1)(5) within 14 days after filing the acknowledgement of service
to dispute the court’s jurisdiction or to argue that the court should not exercise its jurisdiction was
treated as having accepted the court's jurisdiction to try the claim;            that the making of an

                                                                                                    36
application to set aside an order extending the time for service before filing an acknowledgement
of service is not an application under CPR 11(1) nor is it an application made within 14 days after
the filing of the acknowledgement of service. Dyson L.J. stated that the meaning of CPR 11(5)
was clear and unqualified. Accordingly, the defendant was to be treated as having accepted that
the court should exercise its jurisdiction to try the claim.


94.         Attorney for the Defendants urged the Court not to follow the decision in Hoddinott.
The Court has considered her arguments. In particular, it was submitted on behalf of the
Defendants that in England the appearance form contained a box to be ticked if a defendant
intended to dispute the court’s jurisdiction. It was further submitted that there was no such option
in the appearance form under the Rules in Trinidad and Tobago. Having considered all the
arguments advanced on behalf of the Defendants, in the judgment of the Court, there is no proper
basis on which the Court can refuse to be guided by Hoddinott.


95.            Both Attorneys have addressed at length on the issue of waiver and have referred to
several cases, including the case of SSQ Europe S.A. v Johann and Backes OHG [2002] 1
Lloyd’s Rep. 465. This Court considered this case in an earlier unreported case of RBTT Trust
Limited v APUA Funding and the Government of Antigua and Barbuda CV 2007-02269. It
was my view that SSQ Europe turned on its own special facts and that the court had found that the
claimant could not have ever been in doubt that the defendant was intent on pursuing its challenge
to the jurisdiction of the English court notwithstanding service of the defence and counterclaim.
The Court had noted that there was in that case no unconditional entry of appearance or
unequivocal conduct which would be interpreted by a disinterested bystander as amounting to an
abandonment of the jurisdictional objections.


96.            It is the view of the Court that the law of waiver does not assist the Defendants
since Part 9.7 of the Rules has not been complied with. In my judgment, that is fatal as Part 9.7(5)
of the Rules provides a complete answer to the Defendants’ contentions. The Court notes that no
application under Part 9.7 has been filed on behalf of the Defendants and no application for an
extension of time to file an application under Part 9.7 has been filed by the Defendants to date.
Although by their written submissions the Defendants have asked the Court to grant them relief

                                                                                                 37
from sanctions under Part 26.7 of the Rules, there is to date no application filed on behalf of the
Defendants seeking same. In the circumstances, the Court will consider whether it should extend
time for the service of the claim form as was done by the Court of Appeal in Hoddinott.



 ISSUE (VI)

         Whether the Court should make an order in favour of the Claimants extending the time for the
         service of the Claim Form to the 31st October, 2008


97.             By the Claimants’ notice of application filed on the 27th April, 2009, they sought in
the alternative an order that the time for the service of the claim form and statement of case be
extended to the 31st October 2008.


98.        By virtue of Part 8.14 of the Rules, the Court has the power to grant an extension of
time for the service of a claim form. The general rule is that an application to extend the time for
service must be made within the period for serving the claim form specified by Rule 8.13, that is to
say, within four months after the issue of the claim. Before the Court can exercise this discretion
where the claimant applies for such an order after the end of the four month period, the claimant
must first satisfy the court that he has taken all reasonable steps-
                     (i) to trace the defendant; and
                      (ii) to serve the claim, but has been unable to do so;
                     and when the claimant has acted promptly in making the application.

99.      The case of Hashtroodi v. Hancock [2004] 1 W.L.R. 3206 was cited by Dyson L.J. in

Hoddinnot. In Hashtroodi, the Court of Appeal stated at paragraph 18:

      We have no doubt that it will always be relevant for the court to determine and evaluate the
      reason why the claimant did not serve the claim form within the specified period. This has
      nothing to do with the fact that under the former procedural code, the threshold requirement
      was that the plaintiff should show good reason. It is because the overriding objective is that
      of enabling the court to deal with cases "justly", and it is not possible to deal with an
      application for an extension of time under CPR r 7.6(2) justly without knowing why the

                                                                                                  38
       claimant has failed to serve the claim form within the specified period. As a matter of
       common sense, the court will always want to know why the claim form was not served
       within the specified period. As Mr Zuckerman says in Civil Procedure, p 180, para 4.121:
                 "For it is only fair to ask whether the applicant is seeking the court's help to
                 overcome a genuine problem that he has encountered in carrying out service or
                 whether he is seeking relief from the consequences of his own neglect. A claimant
                 who has experienced difficulty should normally be entitled to the court's help, but
                 an applicant who has merely left service too late is not entitled to as much
                 consideration. Whether the limitation period has expired is also of considerable
                 importance. If an extension is sought beyond four months after the expiry of the
                 limitation period, the claimant is effectively asking the court to disturb a defendant
                 who is by now entitled to assume that his rights can no longer be disputed."


100.      According to Dyson L.J. in Hoddinott the earlier cases referred to, including
Hashtroodi’s case, illustrate the general principle that, where there is no good reason for the failure
to serve the claim form within the four months’ period, the court still retains a discretion to grant
an extension of time, but is unlikely to do so. [paras. 40, 54] Dyson L.J. went on to observe that
there are good reasons why the court should scrutinise with care applications to grant an extension
of time for service of the claim form. He went on to say that if an application for an extension of
time is made after the end of the four months’ period, the application must be dismissed unless the
three conditions specified in CPR 7.6(3) are satisfied. [para.55] In Hoddinott, although there was
no good reason for the failure to serve within the four month period, but because of what was
described as an unusual combination of facts, the court exceptionally exercised its discretion to
grant an extension of time. [paras. 58, 59] As noted earlier, in that case, a copy of the claim form
had been sent to the defendant within the four month period. Accordingly, it was accepted by the
court that it was one of the reasons why the extension of time caused no prejudice to the defendant
and an important factor relevant to the exercise of the court’s discretion. [para. 57]


101.       In my judgment, Hoddinott is a wholly different situation to the case before the Court.
According to the Claimants’ own evidence analyzed earlier in this judgment at paragraph 82, the
Claimants first attempted to serve the claim form on the 10th July 2008, the claim form having

                                                                                                    39
been issued on the 11th March, 2008. It is noteworthy that at paragraph 4 of the First Claimant’s
affidavit of the 14th May, 2009, the First Claimant deposed that the Second Defendant had later
indicated that it had not in fact accepted service on behalf of the First Defendant. Despite this,
however, no steps were taken at that stage to apply for an order of the court extending the time for
service of the claim form. At paragraph 5 of the First Claimant’s affidavit, it was deposed that the
documents were passed to a licensed bailiff who indicated that on two occasions he attended at the
premises of the First Defendant in the months of August and September 2008, but on both
occasions the First Defendant was not on the premises. Even at that stage, after the expiry of the
four month period prescribed by the Rules, there was still no application filed for an extension of
time. When the claim form was served, it was only a photocopy of the claim form that was served
on the First Defendant on the 31st October, 2008. In the Court’s view, in all the circumstances of
the case, the Claimants took no reasonable steps to trace the First Defendant and to serve her with
the claim form.


102.     Furthermore, the limitation period for instituting this action against the Defendants had
already expired by the time these attempts were made. The Court agrees with Mr. Zuckerman in
the above cited passage that the fact that the limitation period has expired is also of considerable
importance. The Claimants are effectively asking the Court to disturb the First Defendant who
was by then entitled to assume that her rights could no longer be disputed.           Moreover, the
Claimants’ application for an order extending the period within which the claim form may be
served was made more than nine months after the expiration of the four month period within which
the claim form could be served.       In all these circumstances, the Court will not exercise its
discretion to extend time for service of the claim form. In addition, I do not consider that this is a
fit case to exercise that exceptional discretion described in Hoddinott.


ISSUE (VII)


         Whether, in light of the Claimants’ alleged breaches of the Rules and orders of the Court
         and having regard to the findings of the Court, the Court should strike out the Claimants’
         claim under Part 26.2(1) of the Rules



                                                                                                   40
103.     Having regard to the above findings of the Court, it is not necessary for the Court to
consider in detail the arguments advanced on behalf of the parties as to whether the Court ought to
strike out the Claimants’ claim under Part 26.2(1) of the Rules. Having found that the claim is
statute-barred and that the Court will not exercise its discretion under section 9 of the Act and
under Part 8.14 of the Rules, the Court orders that the three applications filed by the Claimants be
dismissed. The Claimants have been successful on the issue of waiver raised in the notice of
application filed on 27th April, 2009, but that only has significance for the issue of costs.    The
Court also orders that the Claimants’ claim be dismissed. As to the issue of the costs of the notices
of applications and of the claim, I will hear submissions on same.




MAUREEN RAJNAUTH-LEE
JUDGE




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