Carr, Lambert & Colleen Carr v Dudley Burgess

IN THE SLIPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

CLAIM NO, CL C130/1997

BETWEEN LAMBERT CARR

AND COLLEEN CARR

AND DUDLEY BURGESS

FIRST CLAIMANT

SECOND CLAIMANT

DEFENDANT

IN CHAMBERS

Miss Carol Vassel for the claimants

Mr. Laurence Jones instructed by DunnCox for the defendant

January 24,30, March 10 and April 19,2006

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO FILE DEFENCE

SYKES J

I

The application

1. This is an application by the defendant for an extension of time within which to file his

defence in circumstances where his opponent has not agreed to the extension and the

application is made out of the time prescribed by the old rules as well as the new to file a

defence. He alleges that he has a good defence to the claim. The claim against him is for (i)

specific performance; (ii) damages for breach of contract in addition to specific performance

and (iii) further or other relief as well costs. The defendant rests his application on rules

10.3(9) and 26.1(2) (c) of the Civil Procedure Rules (CPR). The claim against the defendant was

filed nine years ago and having entered an appearance did not file a defence.

2. Rule 10.3(9) of the CPR permits the defendant to apply for an extension of time for

filing defence. Rule 26.1(2) (c) permits the court to extend or shorten time for compliance with

any rule even if the application for an extension is made after the time for corr~pliance has

passed. The issue then is not whether the court has the power to extend the time for the

defendant to file his defence but whether the court's discretion should be exercised in favour of

the defendant in this particular case. The chronology of events is important. Let us now

examine the history to see what accounts for this extraordinary delay in filing a defence.