Ebanks, Andrew v Jephther McClymont

I N THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM N O . 2004 HCV 2172 7

BETWEEN

AND

ANDREW EBANKS CLAIMANT

JEPHTHER McCLYMONT DEFENDANT

Janet Taylor i n s t r u c t e d by Taylor, Deacon and James for the

claimant

Hugh Wilson for the defendant

February 5, 6 and March 8, 2007

REFUSAL OF APPLICATION FOR ADJOURNMENT, RULE 39.7 OF THE

(1 C I V I L PROCEDURE RULES, ENTRY OF JUDGMENT, ASSESSMENT OF

DAMAGES, LOSS OF EARNING CAPACITY

SYKES J.

1. Mr. McClymont is a recording and performing a r t i s t . He has been

sued by Mr. Andrew Ebanks in respect of injuries received by Mr.

Ebanks when he was struck by a motor vehicle driven by Mr.

McClymont. The defendant is absent. When the m a t t e r came up for

t r i a l on February 5, 2007, Mr. Hugh Wilson, counsel for the

defendant, indicated t h a t Mr. McClymont was out of Jamaica. Mr.

McClymont was i n Australia. I granted an adjournment t o February 6,

2007. On t h a t date, Mr. Wilson renewed h i s application f o r an

adjournment. He said t h a t t h e defendant was s t i l l in Australia. I

declined t o grant a f u r t h e r adjournment; entered judgment f o r the

claimant and proceeded to the assessment of damages.

g, Reasons for refusing adjournment

2. Mr. Wilson in applying f o r t h e adjournment on both days relied on

rule 39.7 (1) o f t h e Civil Procedure Rules ("CPR") which reads:

The judge may adjourn a t r i a l on such terms as the judge thinks

just.

3. The rule is cast i n very wide terms b u t t h a t does not mean t h a t it

has no boundaries. When exercising any discretion under the CPR, a

judge must t a k e i n t o account rule 1.1 which requires t h a t t h e matter

be d e a l t with j u s t l y . I t emphasises t h a t dealing with t h e case j u s t l y

includes, ensuring t h a t t h e case is dealt with expeditiously, f a i r l y and

a l l o t t i n g t o it an appropriate share of the court's resources while

taking into account t h e need t o allot resources t o other cases.