Judgment — canary

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In the Grand Court of the Cayman Islands — Civil Division

Cause No. G 0033/2022

Between

Jermaine Powis

- v -

David Harvey Crawford - Judgment

Before
Walters J

Judgment delivered 2023-03-24

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Digitally signed by Advance Performance Exponents
Inc
Date: 2023.03.24 15:39:50 -05:00
Reason: Apex Certified
Location: Apex

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10.
The position on behalf of the Plaintiff is that the issue fee for the writ was paid on 14 February 2022
and the writ was uploaded to the E-Filing Platform the same day.
11.
It appears that Mr Brady's account with the E-Filing Platform was accessed by Mr Brady (assisted
by his wife) on 14 February 2022 and a new "Case" was created at 12.04. However, the
"Commencement Date" of the case is shown as 6 June 2022.
12.
The 2-page writ was uploaded as a .pdf document but accompanying it as a third page was the receipt
for the filing fee. Ms Allenger says that the receipt was not germane to the writ itself and if remaining
as part of the .pdf file would form part of the Court's record for originating processes. Ms Allenger
explains that on the same date as the writ was uploaded, a note was left in the message section of the
E-Filing Platform stating:
"Writ of Summons to be uploaded as a separate document from the payment
confirmation. Kindly re-upload documents as two separate PDF. "
13.
Mr Brady explained that he did not access the E-Filing Portal unless it was necessary to upload a
document so neither he nor his wife accessed in again until June 2022 in relation to an entirely
separate matter. Apparently Mr Brady works in loose association with a number of other sole
practitioners, one or more of whom may have subsequently accessed his account on the E-Filing
Platform prior to Jtme 2022 but in relation to other matters that they were dealing with and not those
being dealt with by Mr Brady. The message on the E-Filing Platform was not therefore drawn
immediately to Mr Brady's attention. Paragraph 11.1 (c) of the Practice Direction states that if a
document is not accepted, not only will a message be sent to the message centre of the E-Filing
Platform, but an email shall also be sent to the party seeking to upload the relevant documents setting
out the reasons for non-acceptance. Ms Allenger has confirmed that an email to that effect was not
sent to Mr Brady until 26 April 2022.
14.
At some point between 14 February 2022 and 26 April 2022 Mr Brady attended the Civil Registry
to enquire about the writ2. Ms Allenger says that the filing issue was explained to him and he agreed
2 The precise date is unclear but the delay on the part of Mr Brady is relied on by the Defendant in relation to his
abuse of process argument.
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"The insurers were kept in the picture from the start, and were never in danger of
being faced with a judgment which they had to satisfy without having had an
opportunity to take part in the proceedings, but that does not of itself entitle the
claimant of the court to ignore the statutory requirement which makes it a
condition precedent to liability that "before or within 7 days after the
commencement of proceedings ... the insurer has notice of the bringing of the
proceedings " ..... .
"There may well be other cases in which contact, even an informal contact, shortly
before the commencement of proceedings would put the insurer in the position of
having notice of the bringing of the proceedings - everything would depend on
the facts of the case, but a prudent solicitor would be well advised to ensure that
the insurer received written notice within 7 days after the commencement of
proceedings. There can be no room for argument. "
41.
It was held by the Court of Appeal in that case that the notice had not been given to the insurers in
accordance with the legislation. It was also held that the insurers were entitled to defend the action
on behalf of the defendant right up to judgment, and then, when the judgment was entered and the
claimant turned to them to recover, to raise for the first time the statutory notice point.
42.
I was also referred in that case to the case of Capital Insurance v Fraser14 in which the Court of
Appeal of Trinidad and Tobago held that the local equivalent of section 15 (2) (b) had to be "pretty
strictly fitlfilled". The insurers had to be given notice of proceedings before or within seven days
after proceedings were commenced. "If given before, the notice had to express a clear intention to
bring proceedings; if given after, the third party had to show that insurers had notice of those
proceedings within seven days of issue. "The Court of Appeal made it clear that words such as "may
be taken" or are "likely to be taken" are insufficient to constitute notice.
43.
Mr Brady referred me to a property damage waiver prepared by the Second Defendant's insurer in
relation to the damage to the Plaintiffs motor vehicle. The document was prepared in March 2019
and proposed a settlement of CI$5000 in relation to property damage resulting from the accident in
question. The Second Defendant did not sign it. Mr Brady sought to argue that the waiver
demonstrated that the Second Defendant's insurer was aware of the accident and associated claim.
That may be the case but there is no suggestion that for the purposes of s.15(2) (b) the insurer was
14 [1996] 71 WIR 382.
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Cause Number	G 0033/2022
Court	CIGC (Civ)
Judge	Walters J
Parties	Jermaine Powis v David Harvey Crawford - Judgment
Judgment Date	2023-03-24
Subject	Limitation period for personal injury claims caused by motor vehicle accidents set by s.17 Vehicle Insurance (Third Party Risks) Act (2021 Revision) (“Vehicle Insurance Act”); Discretion provided for by s.39 Limitation Act not applicable to such claims; Writ filed via E-Filing Platform on last day of limitation period; Rejected by Registry and not issued until after limitation period expired; When is action “brought” for purposes of limitation period under Vehicle Insurance Act?; Continuing with proceedings despite failure by Plaintiff to serve notice pursuant to s.15(2)(b) Vehicle Insurance Act amounts to an abuse of process; claim struck out.
Filename (current)	23-03-24-Jermaine-Powis-v-David-Harvey-Crawford.pdf
File MD5	81aa530195d36f15c885087089df0716
Source pipeline	pdb
PDB record ID	2741
PDB URL	https://judicial.ky/n0c-storage/judgments-repository2/23-03-24-Jermaine-Powis-v-David-Harvey-Crawford.pdf

Jermaine Powis v David Harvey Crawford - Judgment

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