IN THE HIGH COURT OF JUSTICE BETWEEN SAISCON LIMITED AND ESTATE MANAGEMENT AND BUSINESS DEVELOPMENT COMPANY LIMITED

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN SAISCON LIMITED CLAIMANT AND ESTATE MANAGEMENT AND BUSINESS DEVELOPMENT COMPANY LIMITED DEFENDANT Before the Honourable Mr Justice James C. Aboud Dated: 7 April, 2016 Representation: Mr. A. Sinanan S.C leading Ms A. M. Hasnain instructed by the firm of Hobson s for the claimant Mr. V. Deonarine instructed by Ms. S. Narine instructed by the firm of Girwar and Deonarine for the defendant DECISION 1. The procedural issue that arises for decision is whether the claimant should be permitted to amend its Statement of Case and its Reply. The parties have attended hearings of the case management conference ( CMC ) for some two years. The defendant opposes the claimant s application on the ground that the first CMC was already completed and that the claimant has not satisfied the grounds for granting permission to amend pleadings set out in CPR A basic understanding of the pleadings is useful. The Claim Form and Statement of Case were filed on 19 March The claimant, a construction company, claims damages for Page 1 of 19

2 breach of contract against the defendant with respect to certain development works that it carried out at Caroni, Trinidad. The defendant is a state-owned company involved in public projects on behalf of the government. According to the pleadings the claimant mobilized at the selected site at Caroni but discovered that it was already developed as an agricultural site. In the Particulars of Losses, Damages and Interest in paragraph 29 of the Statement of Case the claimant claims $315,962 for losses at this site. The Statement of Case narrates that upon bringing its discovery to the attention of the defendant s then chairman, Mr. Uthara Rao, he gave an oral directive to the claimant to carry out site infrastructural work at another site at Warren Road, which is also located in County Caroni. The claimant alleges that it mobilized at the Warren Road site and that during the commencement of site infrastructural work it discovered that this site was under rice cultivation. Under the particulars the claimant claims $10,036,302 for losses at this site. The particulars also allege 25% loss of profit in relation to both development sites, which it quantifies at $29,059,087, together with interest calculated at $3,830,337. The claim is for over $43 million. 3. The Defence admits that there were two separate contracts but says that the defendant was entitled to terminate the contract under its terms and that, while the claimant did carry out some work on the two sites, it has never been certified or approved in accordance with the contract. The defendant is relying on several FIDIC standard terms that are incorporated in the contract. The defendant also contends that the contractual procedures for certification of claims must first be followed before any claim is paid. 4. The defendant amended the Defence on the day before the first CMC took place, pleading that, under the contract, if the parties cannot agree to the value of work on termination the engineer shall make a fair determination having due regard of all relevant circumstances. 5. At the first CMC on 26 July 2012 the parties and their attorneys were present and permission was sought for the claimant to file and serve a Reply. There was no objection to the application and no inquiry by the defendant as to which paragraphs of the Defence the Reply would be directed. The minute sheet discloses that the hearing lasted 4 minutes. The CMC was then adjourned to 15 November Page 2 of 19

3 6. After the first hearing was adjourned on 26 July 2012 the matter was called on five other occasions, spread over a period of 19 months. Each time it was called it was adjourned to a new date. The average rotation for CMC hearings was approximately three months. On one occasion during this 19-month period it was adjourned in chambers after receiving correspondence from both sides; the requested date of hearing represented a five-month gap in the proceedings. At the sixth hearing newly-appointed Senior Counsel for the claimant orally sought permission to amend the Statement of Case and the Reply. That was on 27 February What happened during those six hearings will now be scrutinized. The scrutiny is necessary because the question to be answered is whether, after the first hearing on 26 July 2012, or after any of the five hearings after that date, the first CMC could rightly be said to have been concluded. 7. The record of what transpired at the six hearings is compiled from the minute sheet attached to the court s file and also from notes taken in my notebook. The minute sheet contains entries inserted by the Judicial Support Officer. She will normally cross-reference my notebook if she is unsure of what entry to make. The entries on the minute sheet are all accurate. I have also examined the transcripts of the court s FTR recording system. Two hearings were transcribed and I thank the attorneys for that. Where necessary, I have included a explanation of what the court was seeking at each hearing. 8. Here is the record: (a) 26 July 2012: first hearing The parties attended pursuant to a notice from the Court Office issued on 4 June It commanded the parties to attend the Case Management Conference. At this fourminute hearing directions were sought by the claimant to file and serve a Reply to the defendant s amended Defence. Pleadings had obviously not been closed and my understanding of what the dispute was about was incomplete. The permission to Reply was not limited to any particular paragraphs of the amended Defence. It was an unrestricted or open permission. The hearing was adjourned to 15 November 2012 on account of the annual court vacation. Page 3 of 19

4 (b) 15 Novembers 2012: second hearing Neither the claimant nor its attorney attended this hearing. It was conducted ex parte the defendant and its instructing attorney. The Reply having been filed, I was now able to have a better grasp of the factual and legal issues in dispute. One of the important factual issues revolved around the specific works alleged to have been carried out by the claimant. The Statement of Case alleged that the claimant mobilized on both sites but with respect to the second site at Warren Road, the discovery of rice cultivation was allegedly made during the commencement of site infrastructural works (emphasis mine). The meaning of this phrase is not entirely clear. The amended Defence contained the admission that the claimant [carried] out some work on the two sites but the particulars of loss and damage that I set out earlier in this judgment were nonetheless denied. I felt that it would be useful to have agreement on what works were completed during the mobilization and the commencement of site infrastructural works and that this exercise should be carried out either by the engineer appointed under the contract or some other mutually agreed engineer. I am mindful of how laborious it is to resolve a building contract dispute, especially when there are disputes of fact. The defendant s firm of engineers, who were assigned to the first contract, was APR Associates. At the second hearing, which lasted six minutes, I made a recommendation that between today and the adjourned date the engineering firm of APR Associates, or some other engineering firm agreed to by the parties, should carry out a certification of completed works. This is the note recorded on the minute sheet and in my notebook. An undertaking was given by the defendant s attorney to relay this recommendation to the claimant s instructing attorney, Mr. Dabideen. The hearing was adjourned to 21 February (c) 21 February 2013: third hearing The parties and their counsel attended and told me what happened since the last hearing. I recorded the following in my notebook: APR Associates have begun a review of the Page 4 of 19

5 claimant s quantity surveyor s report which was requested by the defendant and an offer is expected soon. The use by counsel of the words an offer suggested that payment for some of the preliminary works might be altogether removed from the purview of the court proceedings, and seemed headed towards settlement. I felt that there was a strong possibility of an agreement on the value of some or all of the work alleged to have been undertaken by the claimant. This was a serendipitous discovery. The parties were encouraged to continue their efforts. The hearing was adjourned to 2 May However, there was an exchange of s in April seeking an adjournment to a date suitable to the attorneys. The adjourned hearing was rescheduled in chambers to 27 June (d) 27 June 2013: fourth hearing The hearing was attended by both parties and their attorneys, with the exception of the defendant s counsel. It lasted 35 minutes. The parties now expressed reservations about the progress of the discussions and indicated that there was a difference of opinion on some of the items alleged to have been completed at both sites. At this point I made another recommendation, and it is recorded as such on the minute sheet and in my notebook: Court recommends that the claimant s quantity surveyor, Mr. Dipnarine and the defendant s engineer, Mr. Salandy, of APR Associates, meet and agree (a) the factual issues in dispute (b) the areas where there is no dispute and (c) the areas that require further documentation or proof in order to reach agreement. I also made another recommendation: The cost of the exercise involving Mr. Salandy and Mr. Dipnarine to be agreed in advance and the court recommends that the defendant pays these costs subject to Counsel s opinion. The purpose of this discussion and the recommendations that followed was once more to identify what could be removed from the court s purview by mutual agreement and settled out of court, and what could not. The hearing was adjourned to 7 November Page 5 of 19

6 On 27 August 2013 the upsetting and brutal murder of the claimant s instructing attorney, Mr. Wesley Debideen, was reported in the press. A notice of change of attorney, appointing the current firm, was filed on 14 October (e) 7 November 2013: fifth hearing The claimant was now being represented by new instructing attorneys. The previous senior counsel was not retained. The new senior counsel had not yet been appointed. The court was told that the meeting between the respective professionals had not yet taken place. The hearing was adjourned to 27 February 2014 in order for the professionals to meet and resolve the issues identified on 27 June (f) 27 February 2014: sixth hearing Mr. Sinanan S.C. announced his appearance as senior counsel on behalf of the claimant. He reported that the discussions between the professional had broken down a few days earlier and that the matter would need to proceed to trial. He said that in light of this development it was necessary to amend the Statement of Case and the Reply. The transcript of the FTR records the following exchange: Mr Sinanan SC: So what I think would be useful is that your lordship can give directions in that regard so we can put our house in order. You have to remember too that we only came on in the matter what was it, in November last year? Judge: I don t know you would have to make an application to amend because the first CMC would have long gone. Mr. Sinanan SC: No, isn t this a part of the adjourned CMC? What were we doing all the time? Page 6 of 19

7 Judge: Adjourned CMC? No, the first CMC came and then the second and the third and what have you. It was never adjourned as the first CMC. None were ever adjourned as the first CMC. My fly note says adjourned since 2012 [noise interference] hmmm every CMC is adjourned at the end of it. The question is has it been adjourned as the First CMC? No, it was not adjourned as the first CMC. No one asked me to do that. The first CMC came up and it was adjourned to a next date and it came up and was then adjourned. Mr. Sinanan S.C: Ok, if it is that, we would have to make an application, ok. The upshot of this exchange was that I directed the claimant to make a written application for permission to amend. It was adjourned for that purpose to 1 May The hearing on 1 May 2014 was rescheduled by a consent order in chambers to 10 July On 9 July 2014 the notice of application was filed, seeking permission to amend the Statement of Case and the Reply. The claimant also filed the amended pleadings without permission on that day. The determination of the application will answer the question whether these amended pleadings can stand. 8. A few words about the proposed amendments: In the amended Statement of Case the claim has been enlarged by some TT $760,000. Two separate items of loss were excluded due to duplication and a new item standby time has been included as a particular of loss. The claim for standby time is not alien to the dispute. It was tabulated by the claimant s quantity surveyor as an item of loss but the original attorneys did not plead it. The quantity surveyor s report was attached to the Statement of Case, and it was scrutinized during the negotiation and settlement talks. To be fair, the item of loss for stand-by time could easily have been overlooked by both sets of attorneys, as the report is over a hundred pages long. The claimant says that it is trying to correct the record that is known between them due to an error or oversight by the previous attorneys in failing to include a claim for stand-by Page 7 of 19

8 time. The claimant says that there is a mistake in the formulation of the issues put before the court. The amendments to the Reply are seemingly less toxic. The amendments largely respond to the defendant s reliance on certain clauses of the FIDIC contract by pointing out its own interpretation of those and other FIDIC clauses. To a lesser extent the amendment addresses a couple factual issues pleaded in the amended Defence. Although somewhat argumentative in scope the amendment to the Reply is not abusive to any rule of pleading. The primary issue is whether it is too late in the day to allow both pleadings. 9. Under CPR 2.3 the term Statement of Case includes a Claim Form and a Reply to Defence. CPR Part 20, which governs changes to Statements of Case, therefore applies to changes to a Claim Form, a Statement of Case, and a Reply. This definition does not exclude pleadings filed in ancillary claims. 10. CPR Part 20 says this: Changes to Statements of Case 20.1 (1) A Statement of Case may be changed at any time prior to a case management conference without the court s permission. (2) The court may give permission to change a Statement of Case at a case management conference. (3) The Court shall not grant permission to change a Statement of Case after the first case management conference, unless it is satisfied that- (a) There is a good explanation for the change not having been made prior to that case management conference; and (b) The application to make the change was made promptly (3A) In considering whether to give permission, the court shall have regard to- (a) The interests of the administration of justice; Page 8 of 19

9 (b) Whether the change has become necessary because of a failure of the party or his attorney; (c) Whether the change is factually inconsistent with what is already certified to be the truth. (d) Whether the change is necessary because of some circumstance which became known after the date of the first case management conference; (e) Whether the trial date or any likely trial date can still be met if permission is given; and (f) Whether any prejudice may be caused to the parties if permission is given or refused. 8. Among other things, Part 27 deals with the procedures relating to CMCs. Rules 27.6 and 27.8 say this: Orders to be made at a case management conference 27.6 (1) The general rule is that at a case management conference the court must consider whether to make orders for (a) Standard disclosure and inspection by a date fixed by the Court; (b) Service of witness statements by a date fixed by the court; and (c) Service of expert s reports (if any) by a date fixed by the court. (2) The court may also make orders for- (a) (b) (c) The preparation of an agreed statement of facts; The preparation of an agreed statement of issues; The preparation of an agreed statement of the basic technical, scientific or medical matters in issue; and Page 9 of 19

10 (d) An agreed statement as to any relevant specialist area of law, which statement shall not be binding upon the trial judge. (3) The court must fix a date for a pre-trial review unless it is satisfied that the case may be dealt with justly without a pre-trial review. (4) The court must in any event, fix- (i) (ii) the trial date; or the period within which the trial is to take place; (iii) the date on which a listing questionnaire is to be sent by the court office to the parties. (5) The court office must serve the directions made on all parties and give notice of- (i) (ii) the trial date or trial period; and the date on which the listing questionnaire is to be sent out by the court office Adjournment of case management conference 27.8 (1) The court may not adjourn a case management conference without fixing a new date, time and place for the adjourned case management conference. (2) Where the court is satisfied that either- (a) the parties are in the process of negotiating, or are likely to negotiate a settlement; or (b) the parties are attending or have arranged to attend a form of ADR procedure, Page 10 of 19

11 the court may adjourn the case management conference to a suitable date, time and place to enable negotiations or ADR proceedings to continue. (3) The court may give directions as to the preparation of the case for trial if the case management conference is adjourned. (4) Where the case management conference is adjourned under paragraph (2), each party must notify the court office promptly if the claim has been settled. (5) Any adjourned case management conference, and so far as practicable, any procedural applications made prior to a pre-trial review must be heard and determined by the judge or master who conducted the case management conference. Court s duty to manage cases 25.1 The court must further the overriding objective by actively managing cases, which may include (a) (b) (c) (d) (e) (f) identifying the issues at an early stage; deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; encouraging the parties to use the most appropriate form of dispute resolution including, in particular, mediation, if the court considers that appropriate and facilitating their use of such procedures; encouraging the parties to co-operate with each other in the conduct of proceedings; actively encouraging and assisting parties to settle the whole or part of their case on terms that are fair to each party; deciding the order in which issues are to be resolved; Page 11 of 19

12 (g) fixing timetables or otherwise controlling the progress of the case; (h) considering whether the likely benefits of taking a particular step will justify the cost of taking it; (i) dealing with as many aspects of the case as is practicable on the same occasion; (j) dealing with the case or any aspect of it, where it appears appropriate to do so, without requiring the parties to attend court; (k) making appropriate use of technology; (l) giving directions to ensure that the trial of the case proceeds quickly and efficiently; and (m) ensuring that no party gains an unfair advantage by reason of his failure to give full disclosure of all relevant facts prior to the trial or the hearing of any application. 11. There is no definition in the CPR of what constitutes the first CMC. Can the first CMC involve more than one hearing? When it is concluded? The CPR is short on advice. The phrase the first CMC appears in several other rules, for example Part 18.4(5) (ancillary claims) and Part 67.8 (application for budgeted costs). The idea that the first CMC might involve more than one hearing is not alien to our jurisprudence: Shakuntala Tota-Maharaj v Hernandez, C.A. unreported, transcript, 14 December 2009; Premnath Bowlah v The Attorney General of Trinidad and Tobago, High Court, decision of Devindra Rampersad J, unreported, 9 December 2009 at para 19. Merely adjourning the hearing to another date has likewise failed to conclusively signal the end of the first CMC. In Guardian General Insurance Ltd. v Tysa Co. Ltd, C.A. unreported, transcript, 28 June 2010, Mr. Justice Wendell Kangaloo JA, discussing an adjournment taken to pursue settlement negotiations said that a Judge at a CMC may elect not to exercise case management powers and, instead Page 12 of 19

13 put it off without bringing it to an end (page 11, line 14). Stollmeyer JA felt that the objectives of case management, set out in Part 25, broadly expressed a philosophy that should not be diminished by a restrictive interpretation of procedural rules. In that case the CMC did not come to an end upon its adjournment. 12. When the parties involve themselves in settlement negotiations at the first CMC it cannot be said to come to an end by its adjournment to pursue those purposes: Jean Jairam v Russell Hosein Khan, C.A. per Mendonca J.A, unreported transcript, 6 May 2013, page 6 line 40 ff. An adjournment taken in order to file an application with respect to the sufficiency of the pleadings likewise has not been regarded as an event that brings the first CMC to an end: Shelley Ann Richards Taylor v The Attorney General of Trinidad and Tobago, C.A, per Jamadar J.A, unreported, transcript, page 9 line What does the term case management conference connote? Richard Greenslade in his Report on the Judicial Sector Reform Project 1996 said (at p 75) that the term indicates the nature of the event, and not necessarily a hearing in the formal sense: One end result will certainly be a set of directions a timetable for the litigation which in the end the court must be able to impose and enforce with appropriate sanctions. He posed the question when should the first CMC take place and this was his answer: Ideally it should be when the attorneys for all the parties have a clear idea of the basis of their case and broadly (if not in detail) how they intend to prove it, but before they have expended undue sums of money. The attorney will need to know the legal requirements of his case, have his client s evidence which deals with those requirements and be aware of the other evidence, expert or otherwise, that will support that of his client. If the CMC is held too late the court is largely faced with a fait accompli, too early and there is a risk that the parties will not be sufficiently prepared. Mr Greenslade recognized a number of aims of the CMC, among them, the identification and narrowing of the issues, to consider any form of ADR and to prepare a timetable Page 13 of 19

14 supported by directions that will ensure trial at the earliest date and to fix a trial window for the hearing (p 76-77). 14. It would be wrong to regard the notice from the Court Office (after the filing of the Defence) as fixing the hearing of the first CMC. Maybe the first CMC is held on that day. Maybe it is not. It all depends on what happened on that day. The nature of the event, to borrow Mr Greenslade s term, must be examined. The wording of the notice from the court office is not the determinative factor. If, like in the case before me, that hearing lasted 4 minutes and involved an unopposed oral application for permission to file a Reply, the objectives of the CMC would not have been achieved and the first CMC would not have been concluded by its adjournment. I say this notwithstanding my remarks in court on the sixth hearing, set out above. It must be remembered that Part 20 involves amendments not only to the Statement of Case, but also the Reply and, importantly, Ancillary Claims, Defences to Ancillary Claims and Replies to Defences to Ancillary Claims. If the first hearing has been concluded before the Reply or the pleadings in an Ancillary Claim have been filed, then permission to amend those pleadings will involve overcoming the restrictions in 20.1(3), which would indeed be very onerous and costly. 15. The answer to the questions what happens at the first CMC? and when is it concluded? should not be pursued with a robotic mind. Some answers are, nonetheless, coldly staring us in our faces. Part 27.6 deals with the orders to be made at a CMC. The court must consider (but not necessarily make) orders for disclosure, service of witness statements, and experts reports (Part 27.6(1)). The court may also make orders for the preparation of agreed statements of facts and law (Part 27.6(2)). Part 27.6(3) sets out in mandatory terms that the court must fix a date for a pre-trial review unless it is satisfied that the case could be dealt with justly without one. The court is also mandated in any event, to fix the trial date or the period in which the trial is to take place (27.6(4)), the trial window to use Mr Greenslade s expression. It is highly unlikely that the fixing of a trial date or a trial window would make any sense without directions (appropriately sanctioned) for disclosure, witness statements or expert s reports. Part 27.6 assumes that all these important steps would have been taken, Page 14 of 19

15 in whole or in part, and that, having been weighed and measured, the boxers are now ready to rumble. 16. Devindra Rampersad J put it best, in his often-quoted passage in Premnath Bowlah (at para 11): To my mind the first CMC is an event: a fact, not a name. The ritualistic administrative function of giving a date does not impose the judicial connotation of case management until there has been an actual exposition of the matters intended to be dealt with The remarks of Mr. Greenslade on this point (set out above at para 13) are also highly persuasive. 17. The CPR is designed to move cases along efficiently. An unlimited right to amend pleadings at any time is inefficient. Restrictions are therefore placed on applications to amend that are made after the first CMC. If these restrictions did not exist we would pay little attention to when the first CMC took place. We are therefore forced to identify the first CMC. To my mind, the event that signals the first CMC involves actual court-driven management of the type set out in Part If such activity takes place for the first time, then, ordinarily, it would signal that that hearing is the first CMC. After its adjournment the first CMC is concluded. Whether the activity took place at the first hearing or the sixth hearing is irrelevant. 18. There are situations when the parties will ask the judge to specifically adjourn the first CMC as the first CMC. This is a not infrequent occurrence in our courts. I have detected, in most, if not all, of these requests, a wish to preserve (for the benefit of one or both parties) an unrestricted right to amend pleadings. I can think of no other sensible reason to ask for such an adjournment. In those cases, of course, the first CMC cannot be said to have been concluded. In the absence of such a specifically worded adjournment a party may be left in some uncertainty as to whether or not the first CMC has been concluded. This uncertainty can easily be resolved by an examination of the record to determine whether any case management activity took place. The parties are free to do so at any time. If they are in doubt they can ask the court to resolve it (as I am now doing). They also have the option, if they wish immunity from a belated attempt to amend as of right, to ask the court to signify that the first CMC is concluded. Attorneys can also quite easily ask the court to make one Page 15 of 19

16 of the orders in Part Such orders would certainly qualify as case management activity. I see no reason why those attorneys who ask for the first CMC to be adjourned as the first CMC should be more favourably received than those who ask that it not be so adjourned or who insist on the case moving forward to trial. It would certainly lead to fewer disputes of the type now before me. Importantly, having regard to Part 27.8(2)(a), if the parties are involved in settlement discussions (the extent or scale of the discussions is not critical) the court is empowered to adjourn the CMC. If the reason for the adjournment is settlement discussions then how can a party to those discussions say that the CMC is concluded when it was adjourned? 19. Having closely examined the record of events in the instant case I am satisfied that the first CMC was never concluded. I had previously thought that giving directions for the filing of a Reply and the adjournment thereafter signalled the end of the first CMC. I said this at the sixth hearing, in response to Mr Sinanan s oral application to amend. I was wrong. The pleadings are the terms of reference submitted to the court for dispute resolution. There can be no conclusion of the first CMC until some point after the Reply is filed. If there is an ancillary claim against a party or an added party then that ancillary reference will also need to be finalized and filed. The court s (and the parties ) understanding of the dispute is inchoate until after the pleadings are closed. The purpose of the pleadings is to precisely define what the quarrel is about. 20. The case management activity that signals that a hearing is the first CMC requires much more than what occurred at the first hearing of this matter. That hearing lasted 4 minutes. All that took place was an application to file a Reply. Unrestricted permission was given. This type of activity does not amount to case management activity. What is needed is an order or orders of the type set out in Part These would include orders for discovery, witness statements, the service of expert s reports, or the filing of agreed statements of facts or issues. An order fixing a trial date or the period within which the trial is to take place (the trial window ) would obviously amount to case management activity. All of these orders are made in readiness for the trial, the final reckoning, the ultimate event around which everything turns. Why should anyone, except for very good reason, derail the plans Page 16 of 19

17 made for the forward momentum to this ultimate event? The course has already been charted on the basis of the particular dispute defined in the pleadings. To amend the pleadings at that stage is to take the proceedings backwards instead of forwards. There will come a time when the proceedings have reached the point of no return for those who wish to amend as of right. That point is reached when the first CMC is concluded. 21. With a view to simplifying my work and saving time during a CMC I have prepared a checklist of all potential trial directions. Many practitioners with matters before me will be familiar with it. In the course of the last five years the document has grown more intricate. In considering the submissions in this case I have realized that the first CMC is concluded after any of the orders or directions on this checklist is made. A copy of the checklist is attached as an appendix to this judgment. 22. It cannot be gainsaid that every civil judge prefers that matters are settled rather than litigated. There is obvious zeal in encouraging settlement as it saves the time of the court, and the expense and trauma of the litigants. There is also zeal to narrow the issues to be resolved on the pleadings and so make trials shorter and less cumbersome. Most judges spend the first or second court appointment enquiring whether either of these goals is possible. Sometimes, several court appointments come and go and the parties ask for more time to explore these options. The process of trying to achieve these goals does not normally amount to case management activity of the type that, when it is adjourned, the first CMC could be said to be over. 23. In the instant case the first CMC was never concluded. The court did not consider any of the matters in 27.6(1). It did not make any orders under 27.6(2) or (3). It did not fix a trial date or a trial window. Not one of these directions was given. The hearings involved discussions between the court and the parties about the prospects for settlement of some or all of the issues, and recommendations were made for the parties to consult with experts in order to narrow the areas of dispute. These recommendations were made to assist in achieving these goals. The parties and their experts were actively involved in those deliberations up until a few days before Mr Sinanan signalled his intention to apply to Page 17 of 19

18 amend. It was open to either party to assert that settlement discussions were hopeless, or were taking too much time, and to insist on trial directions. Neither party did that. The length of time that the discussions dragged out should not be raised as an obstacle by a party who fully participated in the process and never sought to end it. 24. In my view the claimant is entitled to amend the Statement of Case and the Reply pursuant to Part 20.1(2), namely at a case management conference. The first CMC is not over. It is still in progress. The grant of permission is not however a rubber-stamping exercise. It involves the exercise of a discretion. Some of the criteria evaluated in granting permission include the following. The amendment to the Statement of Case amounts to a correction of the record. It allows the claimant to ventilate all of its grievances. The amendments, while new to the pleading, do not originate out of new, previously undisclosed material. They originate out of the quantity surveyor s report, which is old, and previously disclosed material. Basically, the amendments arise out of a re-assessment of the existing documentation. The right of the defendant to defend is not compromised as this is a document case and all the documents are available. While there is no criterion in Part 20.1 for the evaluation of the prejudice inherent in applications of this type I feel that the consideration of the interests of the administration of justice and, as well, the mandate to decide cases justly lead the courts along paths similar to the old prejudice test. In both cases they support the grant of permission. 25. Part 20.1(1) is inapplicable to this case. It is not necessary for me to consider Part 20.1(3) (a), (b) or (3A). If I was of the view that the first CMC was concluded then it is unlikely that permission to amend would have been granted. The claimant has not satisfied me that there is a good explanation for the delay or that the application was made promptly. It is however unnecessary for me to decide this. 26. Mr. Vigai Deonarine, who wrote otherwise very astute submissions, did not convince me that my verbal assessment, given in court on 27 February 2014, that the first CMC is long over bound the court in determining this application. I have had the opportunity now, which I did not have in court on that day, to give a considered opinion, and I have changed Page 18 of 19

19 my earlier, unconsidered opinion. The first CMC was not long over. Likewise, with great respect to Mr Deonarine, I have not found any of Mr Sinanan s statements to be unequivocal enough to bind the claimant and prevent it from making this application. 27. I will therefore allow the amendments in terms of the drafts attached to the application and give directions for the filing of a re-amended Defence. I will now hear the parties on the question of costs. James Christopher Aboud Judge Page 19 of 19

20 Appendix Form JCA1 15/12/2014 V DRAFT ORDER: TRIAL DIRECTIONS CHECKLIST REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No: CV. BETWEEN AND ORDER Claimant(s) Defendant(s) Before the Honourable Mr. Justice James C. Aboud Dated:. UPON this matter coming on for the case management conference AND UPON HEARING attorney(s)-at-law for the claimant(s) and attorney(s)-at-law for the defendant(s) IT IS HEREBY ORDERED AND DIRECTED FOR TRIAL [ ] on liability only [ ] on liability and quantum of damages DISCOVERY 1. Subject to Part 28 of the Civil Proceedings Rules 1998 (as amended) ( CPR ) the parties shall disclose their documents on or before. with inspection to follow as provided in Rule BUNDLE OF DOCUMENTS 2. (a) The claimant shall file and serve on or before. a bundle of documents comprising three (3) schedules as follows:- i. Authentic documents the truth of their contents agreed; ii. Authentic documents the truth of their contents in dispute; iii. Documents in dispute as to their authenticity. i

21 (b) (c) Documents in schedule (i) and (ii) shall be deemed to be adduced into evidence without the need for the testimony of any witness. Documents in schedule (iii) require testimony in order to be admitted into evidence and cannot be relied upon as evidence without being formally adduced. The bundle of documents shall be countersigned by the parties attorney(s)-at-law or the parties (if unrepresented) and their signature(s) shall signify their agreement with the contents and classification of the documents in the bundle. EXPERT WITNESSES 3. (a) [ ] Subject to CPR Part 33 is appointed the sole expert to investigate and produce the following report.... The costs of the report are to be shared [and the parties have indicated their agreement to be bound by the expert s findings and opinion]. A joint letter of instructions and/or questions to be put to the expert shall be delivered to the expert on or before...., when completed, the report shall be addressed to the court. [ ] The [claimant(s)] or [the defendant(s)] intend to apply to the court to appoint an expert under Part 33 and the application shall be filed on or before. (b) A party wishing to put questions to an expert either prior to or at the trial must first seek the permission of the court to put those questions or to request the expert s attendance at the trial. (c) Unless the court otherwise orders the expert s report must be attached to his/her witness statement and be filed in accordance with the witness statement directions given below. If the expert s report was obtained before the first case management conference it must be disclosed during Part 28 discovery, and permission to use it must be sought. (d) The court nonetheless has a discretion to appoint an expert at any stage of the proceedings. AGREED STATEMENTS OF FACT AND LAW 4. On or before. the parties shall file an agreed statement of facts and an agreed statement of legal issues to be decided at the trial. The agreed statement of facts must itemize what facts are agreed and what facts are in dispute. The agreed statement of legal issues may identify each party s unique understanding of the issues, but it is preferable that one agreed statement of legal issues is prepared. The statements of facts and issues of law must be signed by the parties or their attorneys. WITNESS STATEMENTS 5. The parties shall file and exchange witness statements on.....; (i) The claimant shall file and serve. witness statements:- ii

22 (a) (c) (b).. (d)... (ii) The defendant shall file and serve. witness statements:- (a) (c) (b)... (d)... The failure to file witness statements on the stipulated date will attract the sanction set out in CPR Part (a) Notices of evidential objections (if any) and all other pre-trial applications shall be filed not later than..... Such notices or applications will not be entertained after this date. (b) When filing a notice of evidential objections a photocopy of the witness statement to which objection is made must be attached to the notice without the inclusion of its exhibits, save where objection is also taken to any specific exhibit in which case a photo copy of that exhibit must also be attached. APPLICATIONS FOR EXTENSIONS OF TIME 7. In the event that any party applies to extend the time for compliance with any of the above directions the attorneys-at-law shall attempt to restructure the timetable in such a manner as will save the date fixed for the Pre-Trial Review, and shall agree (where necessary) consequential extensions for outstanding filings and the same shall be reflected in the application and the draft order. PRE TRIAL REVIEW AND TRIAL 8. The Pre Trial Review to determine notices of evidential objections or other pre-trial applications shall be heard on 20..., at 1:30 pm in Courtroom [ ] at Hall of Justice, Knox Street, Port of Spain. [ ] at Supreme Court of Justice, Harris Street, San Fernando. [ ] by video link between Hall of Justice, Knox Street, Port of Spain and Hall of Justice, Barcolet Street, Tobago. 9. At least ten (10) days before the trial the claimant shall file a CPR Part 40 Trial Bundle duly tabbed and bound. All pages must be numbered. The witness statements shall reflect the deletions (if any) consequent on the ruling on evidential objections. The claimant shall also provide an extra copy of the bundle of witness statements, duly bound, for use at the trial. In default of compliance the trial date may be lost or a costs order may be imposed as a penalty. iii

23 10. Trial is fixed for... days(s) on....., at 9:30am in Courtroom.... [ ] at Hall of Justice, Knox Street, Port of Spain. [ ] at Supreme Court of Justice, Harris Street, San Fernando. [ ] at Hall of Justice, Barcolet Street, Tobago... Assistant Registrar Supreme Court TO: Attorney-at-Law TO: Attorney-at-Law iv