Commonwealth Caribbean Civil Procedure: Third Edition (Commonwealth Caribbean Law)

265 Pages·2008·0.83 MB·English

by  Gilbe Kodilinye

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2 COMMONWEALTH
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5 CARIBBEAN CIVIL
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PROCEDURE
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6 This new edition of a well-established book is a timely response to the
7 enactment during the past three to five years of new Rules of civil procedure,
8 which are now in force, or are soon coming into force in the vast majority
9 of Caribbean jurisdictions. The third edition has been substantially revised
30111 and augmented to take into account the revision of the Rules and covers
1 the new Rules in detail. The book also provides coverage of the recent case-
2 law coming out of Jamaica and the Organisation of Eastern Caribbean States
3 (OECS), under the new Rules of civil procedure.
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This book is essential reading for students of Commonwealth Caribbean
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law as well as anyone wishing to get to grips with the new Rules of civil
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procedure.
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9 Gilbert Kodilinye is Professor of Property Law at the University of the
40111 West Indies.
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Vanessa Kodilinye is an Attorney-at-Law in Barbados.
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Commonwealth Caribbean Law Series
The Commonwealth Caribbean Law Series is the only series of law books
that covers the jurisdiction of the English speaking Caribbean nations. The
titles in the series were first published in 1995 to acclaim from academics,
practitioners and the judiciary in the region. Several editions followed, and
they have now become essential reading for those learning and practising
Caribbean law.
This must have series is required holdings for any law library specialising
in Caribbean legal information.
Titles in this series include:
Commonwealth Caribbean Public Law2nd edn, Albert Fiadjoe
Commonwealth Caribbean Public Law of Trusts2nd edn,
Gilbert Kodilinye
Commonwealth Caribbean Tort Law, Gilbert Kodilinye
Commonwealth Caribbean Business Law, Rajendra Ramlogan and
Natalie Persadie
Commonwealth Caribbean Civil Procedure2nd edn, Gilbert Kodilinye
and Vanessa Kodilinye
Commonwealth Caribbean Property Law 2nd edn, Gilbert Kodilinye
Commonwealth Caribbean Law and Legal Systems,
Rose-Marie Belle Antoine
Commonwealth Caribbean Criminal Practice and Procedure2nd edn,
Dana S. Seetahal
Commonwealth Caribbean Land Law– forthcoming,
Sampson Owusu
Commonwealth Caribbean Public Law3rd edn, Albert Fiadjoe
Commonwealth Caribbean Law and Legal Systems2nd edn – forthcoming,
Rose-Marie Belle Antoine
Judicial Review in the Commonwealth Caribbean– forthcoming,
Rajendra Ramlogan
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2 COMMONWEALTH
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5 CARIBBEAN CIVIL
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PROCEDURE
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Third Edition
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Gilbert Kodilinye and Vanessa Kodilinye
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Third edition first published in 2009
by Routledge-Cavendish
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge-Cavendish
270 Madison Avenue, New York, NY 10016
This edition published in the Taylor & Francis e-Library, 2008.
“To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”
Routledge-Cavendish is an imprint of the Taylor & Francis Group,
an informa business
© 2009 Gilbert Kodilinye and Vanessa Kodilinye
First edition 1999
Second edition 2005
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Kodilinye, Gilbert.
Commonwealth Caribbean civil procedure/Gilbert Kodilinye and Vanessa
Kodilinye. – 3rd ed.
p. cm.
1. Civil procedure – West Indies, British. 2. Civil
procedure – Caribbean Area. I. Kodilinye, Vanessa. II. Title.
KGL5503.K63 2008
347.729(cid:101)05 – dc22
2008010886
ISBN 0-203-89115-5 Master e-book ISBN
ISBN 10: 0–415–47231–8 (pbk)
ISBN 10: 0–203–89115–5 (ebk)
ISBN 13: 978–0–415–47231–9 (pbk)
ISBN 13: 978–0–203–89115–5 (ebk)
1111 CONTENTS
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61 Preface xiii
7 List of Figures xv
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Table of Cases xvii
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1 INTRODUCTION 1
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3111 THE OVERRIDING OBJECTIVE 2
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SCOPE OF THE OVERRIDING OBJECTIVE 5
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6 APPLICATION OF THE OVERRIDING OBJECTIVE 5
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LIMITATIONS OF THE OVERRIDING OBJECTIVE 6
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20111 2 COMMENCEMENT OF PROCEEDINGS 8
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THE CLAIM FORM 8
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3 Examples of brief details of a claim to be included in the
4 claim form 9
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PARTICULARS OF CLAIM 9
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7 PERSONAL INJURIES CLAIMS 10
8 FIXED DATE CLAIMS 10
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ISSUING THE CLAIM FORM 14
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1 SERVICE 14
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EXTENSION OF TIME FOR SERVICE 15
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4 METHOD OF SERVICE 16
35 ALTERNATIVE METHODS OF SERVICE 19
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8 3 RESPONDING TO A CLAIM 20
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DISPUTING A COURT’S JURISDICTION 20
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1 THE DEFENCE 21
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CONTENTS OF THE DEFENCE 22
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4 PERSONAL INJURIES CLAIMS 23
5 COUNTERCLAIM 23
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REPLY 26
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vi Commonwealth Caribbean Civil Procedure
4 SERVICE OUT OF THE JURISDICTION 27
APPLICATION FOR PERMISSION 27
REQUIREMENTS FOR GRANTING OFPERMISSION 27
GROUNDS SPECIFIED IN CPR RULE 7.3 28
CLAIMS FOR CONTRIBUTION 29
MULTIPLE DEFENDANTS 29
FORUM CONVENIENS 30
SERVICE OF OTHER DOCUMENTS 31
PERIODS FOR ACKNOWLEDGING SERVICE AND
FILING DEFENCE 31
METHODS OF SERVICE ABROAD 32
SETTING ASIDE SERVICE OF CLAIM FORM 32
5 PARTIES AND JOINDER 35
MINORS 35
Appointment without a court order 35
Appointment under an order of the court 36
Settlements 36
Minor coming of age 37
Persons of unsound mind 37
Personal representatives 38
Trustees 38
Companies 39
Partnerships 39
Unincorporated associations 40
Representative proceedings 40
JOINDER OF PARTIES 41
Intervention 41
JOINDER OF CAUSES OF ACTION 43
INTERPLEADER 44
Procedure 44
Powers of the court 45
Contents vii
1111 6 ANCILLARY CLAIMS 46
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SCOPE OF ANCILLARY PROCEEDINGS 46
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4 PROCEDURE 48
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Permission 48
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7 Service of ancillary claim form 49
8 Defence to ancillary claim 49
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Case management where there is a defence 50
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7 DEFAULT JUDGMENTS 51
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4 Money claims 51
5 Other claims 51
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The application 52
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Form of the judgment 52
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9 Defendant’s rights following judgment 52
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SETTING ASIDE DEFAULT JUDGMENTS 53
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2 Setting aside as of right 54
3 Setting aside in other cases 55
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Real prospect of success 57
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6 The affidavit of merit 58
7 Delay 59
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Conditions imposed by the court 60
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8 SUMMARY JUDGMENT 63
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3 PURPOSE OF SUMMARY JUDGMENT PROCEEDINGS 63
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QUESTIONS OF LAW 69
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6 TYPES OF PROCEEDINGS FOR WHICH SUMMARY
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9 PROCEDURE 69
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EVIDENCE 70
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2 POWERS OF THE COURT 70
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STAY OF EXECUTION 71
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5 CONDITIONAL ORDER 71
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Cross-claims 71
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8111 THE ‘CHEQUE RULE’ 72
viii Commonwealth Caribbean Civil Procedure
9 CASE MANAGEMENT 75
OBJECTIVES OF CASE MANAGEMENT 75
THE CASE MANAGEMENT CONFERENCE 76
10 AMENDMENTS TO STATEMENTS OF CASE 78
LATE AMENDMENTS 79
Amendment and withdrawal of admissions 83
AMENDMENTS AFTER THE END OF A LIMITATION
PERIOD 84
New causes of action 87
11 APPLICATIONS FOR COURT ORDERS 89
PROCEDURE 89
12 INTERIM INJUNCTIONS 91
JURISDICTION 91
PROCEDURE 91
Duty of disclosure 92
Duty to apply promptly 93
Service of injunction 94
The return date 96
THE CAUSE OF ACTION 97
GENERAL PRINCIPLES FOR THE GRANT OF
INTERIM INJUNCTIONS 98
There must be a serious question to be tried 98
Balance of convenience 98
PRESERVING THE STATUS QUO 100
CASES OUTSIDE THE AMERICAN CYANAMID PRINCIPLES 102
Defamation actions 102
Covenants in restraint of trade 103
Actions against public authorities 103
Restrictive covenants 103
Final disposal of the action 104
MANDATORY INTERIM INJUNCTIONS 107
DISCHARGE OF INTERIM INJUNCTION 109
Contents ix
1111 13 FREEZING (‘MAREVA’) INJUNCTIONS AND SEARCH
2 (‘ANTON PILLER’) ORDERS 112
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FREEZING INJUNCTIONS 112
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5 Requirements 113
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Procedure for obtaining pre-trial freezing injunction 120
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Inter partes hearing 122
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9 Variation 122
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Discharge 122
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Procedure 129
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The claimant’s undertakings 130
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6 Independent attorney 130
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Safeguards for the defendant 131
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Non-compliance by defendant 132
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20111 Variation and discharge 132
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ORDER FOR THE PRESERVATION OF PROPERTY 132
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14 DISCLOSURE AND INSPECTION OF DOCUMENTS 133
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7 WHAT DOCUMENTS MUST BE DISCLOSED 133
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Standard disclosure 134
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Specific disclosure 135
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Inspection of documents referred to in statements
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of case 136
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35 Privileged documents 137
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Documents disclosed by mistake 139
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8 ‘WITHOUT PREJUDICE’ COMMUNICATIONS 140
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ACTION FOR DISCLOSURE: THE NORWICH
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PHARMACAL RULE 142
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2 The ‘mere witness’ rule 145
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The Bankers Trust principle 146
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5 Procedure 147
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Costs 148
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8111 NOTICE TO ADMIT FACTS 148