IN THE HIGH COURT OF JUSTICE BETWEEN GANGADEEN SEEBARAN AND CHRISTINE SUCHIT STEVE SUCHIT FIRST DEFENDANT CAPITAL INSURANCE LIMITED JOEL BASCOMBE

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN GANGADEEN SEEBARAN AND CHRISTINE SUCHIT STEVE SUCHIT CLAIMANT FIRST DEFENDANT CAPITAL INSURANCE LIMITED JOEL BASCOMBE SECOND DEFENDANT THIRD DEFENDANT PRESIDENTIAL INSURANCE COMPANY LIMITED (by Original Claim) AND BETWEEN FOURTH DEFENDANT JOEL C. BASCOMBE PRESIDENTIAL INSURANCE COMPANY LIMITED AND CHRISTINE SUCHIT STEVE SUCHIT JONATHAN WILLIAMS AND CAPITAL INSURANCE LIMITED (by Ancillary Claim) ANCILLARY CLAIMANTS ANCILLARY DEFENDANTS ANCILLARY CO-DEFENDANT BEFORE THE HON. MADAME JUSTICE JOAN CHARLES Appearances For the Claimant: For the 1 st and 1 st Co-Defendant: For the 2 nd and 2 nd Co-Defendant: Mr. R. Gosine Mr. R. Khan Mr. S. Persad Date of Delivery: 20 th January 2012 JUDGMENT Page 1 of 25

2 BACKGROUND [1] On the 22 nd June, 2008, the Claimant was a passenger in motor vehicle PCE 9449 which was involved in an accident with the motor vehicle, PAZ 3449, driven and controlled by the First-named Defendant. As a result of the said accident, the Claimant suffered personal injuries. Subsequently, he instituted these proceedings seeking damages for personal injuries and consequential loss suffered by him caused by the negligence of the Firstnamed Defendant, his servant and/or agent in the driving, management and/or control of motor vehicle PAZ [2] For determination by this Court are three applications: i. On the 15 th April, 2011, by the First, Second and Third Ancillary Defendants and Ancillary Co-Defendant pursuant to PART 29.1 and 29.5(2) of the CIVIL PROCEEDINGS RULES 1998 ( CPR ) to have the Witness Statements of Gangadeen Seebaran, Joel Bascombe, Allan Houlass and the Witness Summary of Dr. Anil Kumar struck out and/or deemed or determined inadmissible as evidence in proof of the Claimant s case ( the first Application ); ii. On the 15 th April, 2011, by the First, Second and Third Ancillary Defendants and Ancillary Co-Defendant pursuant to PART 26.2 of the CPR to have the ancillary claim of the Fourth-named Defendant for the sum of $53, struck out ( the second Application ); and, Page 2 of 25

3 iii. On the 19 th April, 2011, by the Third and Fourth-named Defendants/Ancillary Defendants pursuant to PART 26.2(1)(d) 1 of the CPR to strike out the Amended Defence, or parts thereof, of the First and Second-named Defendants/Ancillary Defendant for failure to comply with PART of the CPR. In the alternative, they are seeking to have paragraphs 3 and 4 of the said Amended Defence be struck out for failure to comply with PART of the CPR ( the third Application ). THE FIRST APPLICATION [3] The relevant paragraphs are as follows: i. Paragraph 10 of the Witness Statement of Gangadeen Seebaran; ii. iii. iv. Paragraphs 4, 8, 11, 12, 13, 14, 16 and 18 of the Witness Statement of Joel Bascombe; The entire Witness Statement of Allan Houlass, or alternatively paragraphs 3, 5, 6 and 7; and, The entire Witness Summary of Dr. Anil Kumar. [4] The grounds for the Application are follows: i. Statements and/or documents cited contained hearsay evidence which are inadmissible and/or contravene the rules of evidence as prescribed by the EVIDENCE ACT, CAP. 7:02; 1 The court may strike out a statement of case or part of a statement of case if it appears to the court that the statement of case or the part to be struck out is prolix or does not comply with the requirements of Part 8 and When the defendant files a defence, he must also serve a copy on all other parties. 3 Defendant s duty to set out his case. Page 3 of 25

4 ii. iii. Statements and/or documents cited contain matters of inference and/or conjecture and/or opinion which are inadmissible into evidence and/or are otherwise embarrassing and/or an abuse of process of the Court and/or the prejudicial effect of same outweigh any probative value which they may possess; Documents cited were not disclosed by the Claimant as required by the CPR and/or Orders and/or Directions of the Court. [5] The Claimant contended that it was too late in the proceedings, i.e. on the morning of the trial, to raise these objections. Counsel further contended that the Medical Report of Dr. Anil Kumar was annexed to the Statement of Case, and the Witness Summary was referred to in the Witness Statement of the Claimant. Therefore, the First, Second and Third Ancillary Defendants and Ancillary Co-Defendant had ample time, as they filed a Defence, to have made these objections at a Case Management Conference. As such the Court should not entertain this Application at this juncture. [6] The Third and Fourth Defendants/Ancillary Claimants had no objection to the Medical Report of Dr. Anil Kumar being admitted into evidence. ANALYSIS o DR. ANIL KUMAR [7] The First, Second and Third Ancillary Defendants and Co-Defendant contended that the Witness Summary of Dr. Kumar purported to give expert evidence. However, he failed to establish his expertise to ground such opinions. As a result, this evidence is inadmissible. Page 4 of 25

5 [8] In addition, the First, Second and Third Ancillary Defendants and Co- Defendant argued that the Claimant failed to comply with PART 33.5(1) 4 and (2) 5 of the CPR to seek the Court s permission to file expert evidence, i.e., the medical report of Gangadeen Seebaran. [9] They asserted that the time limited to make such an application has expired and there has been no application to derogate from the general rule. Further, there was no legitimate ground raised that would satisfy the requirement under PART of the CPR. [10] They contended that the expert report failed to comply with PART of the CPR, as the deponent did not: i. Give sufficient details of his qualification including supporting documentation to substantiate the details; ii. Give details of any documentation used in making his report; iii. Give reasons for his opinion; iv. State that he understands his duty to the Court as is required by PART 33.10(2)(a) 8 ; v. State that he complied with the duty owed to the Court as detailed in PART and of the CPR; 4 No party may call an expert witness or put in an expert s report without the Court s permission. 5 The general rule is that the Court s permission should be given at a case management conference. 6 Relief from Sanctions 7 Contents of Report 8 At the end of an expert s report there must be a statement that the expert understands his duty to the court as set out in rules 33.1 and (1) It is the duty of an expert witness to help the court impartially on the matters relevant to his expertise. (2) This duty overrides any obligations to the person from whom he has received instructions. 10 The way in which the duty to the court is to be carried out. Page 5 of 25

6 vi. vii. viii. State that his report included all matters within his knowledge and area of expertise relevant to the issue on which his expert evidence is given; State that he has given details in his report of any matters which to his knowledge might affect the validity of his report; and Annex to the report a note of the instructions that he received. [11] The objections raised by the First, Second and Third Ancillary Defendants and Co-Defendant regarding the Witness Summary and the expert evidence of Dr. Kumar are intertwined and will be dealt with together. [12] There is no dispute between the parties that the evidence of Dr. Anil Kumar constitutes expert evidence. PART 33 of the CPR governs the use of expert evidence before the Court. PART 33.5 provides that a party cannot call an expert witness or put in an expert s report without the permission of the court. Once permission is given, the expert s duty is to assist the court impartially on the matters relevant to his expertise. PART succinctly states the contents which an expert s report should contain. [13] Where a court is called upon to determine whether a person should be permitted to give expert evidence, it should be provided with material by which it would assess: i. What the issues in the case were likely to be; and, ii. The person s ability to deal with those issues Civil Procedure, Vol. I, 2011, p. 1049, para Page 6 of 25

7 In Martin Phillip Revenales v Eric Charles 12, Dean Amorer J. opined:... all experts under the Civil Proceedings Rules have a duty to provide independent assistance to the Court. Moreover, failure to provide information required by Part of the Civil Proceedings Rules is fatal and would result in the Court s rejection of the expert report. Further, in Rhona Taylor v Priest Titre 13, Master Margaret Mohammed opined: Part 33 therefore controls the volume, quality and impartially of expert evidence. Blackstone s Civil Practice summed up the changes on expert evidence brought about by the CPR as the effect of the CPR has been to restrict what was formerly the parties almost unhindered right to call their own experts to give evidence in court. [14] An examination of the Witness Summary and the expert report of Dr. Kumar show that it merely contained a cursory assessment of the injuries suffered by the Claimant. Dr. Kumar did not state in either documents: i. What are his qualifications that render him an expert in the area; ii. iii. Whether the contents of his Witness Summary are within his own personal knowledge; Whether he was the one that attended to the Claimant at the hospital; and, 12 CV , para CV , p.7 Page 7 of 25

8 iv. Whether tests were carried out or if literature consulted in the making of the medical report. [15] More importantly, Dr. Kumar did not attach any written, supplemental or oral instructions he received from Gangadeen Seebaran; nor did he state whether he understood his duty to the Court as an expert and the manner in which such a duty is to be carried out. The absence of these vital pieces of information does not fulfil the requirements set out by PART 33.1 of the CPR that an expert witness duty is to assist the court on all relevant matters so as to resolve the proceedings fairly. [16] The Court, not having previously granted permission to admit the expert report, is cognisant of the fact that it can grant permission at any stage of the proceedings so as to allow the expert evidence. However, to do so now would not be in furtherance of the overriding objective in dealing with cases justly as it would deprive the Court of its supervisory function to ensure that several of the requirements with which an expert has to comply are followed 14. [17] In the alternative, to allow these documents to stand would place this Court at a serious disadvantage in assessing the evidence and coming to an informed decision. In Top Hat Yachts Limited v Evelyn Petersen 15, Pemberton J. dealing with facts similar to the present case opined: No permission was sought by Top Hat It is now too late in the day to make such an application. 14 Rhonda Taylor v Priest Titre, op. cit., p CV , paras Page 8 of 25

9 I am of the view that to allow these paragraphs to stand would prejudice the Defendants and would put this Court at a severe disadvantage in assessing the evidence. Further, it would prejudice the Ancillary Defendants greatly to have evidence adduced against them which does not comply with PART of the CPR. [18] In the circumstances, the Court concludes that: i. The Witness Summary of Dr. Anil Kumar be struck out in accordance with PART 29.5(2) 17 ; and, ii. The expert report of Dr. Kumar struck out as it does not satisfy PART 33 of the CPR. o GANGADEEN SEEBARAN [19] The Ancillary Defendants are seeking to have paragraph 10, lines 1-4 struck out of the Claimant s Witness Statement on the ground that it is premised on hearsay information. It reads: As a result of the collision, I suffered the following injuries: - Fracture thoracic vertebrate 11/12 - Fracture proximal 1/3 left ulna - Bilateral Lung contusions 16 Relief from sanctions 17 The court many order that any inadmissible, scandalous, irrelevant or otherwise oppressive matter be struck out of any witness statement. Page 9 of 25

10 It is important to note that in his Witness Statement, the Claimant does not state who was his attending physician or the source of the foregoing paragraph; nor does Dr. Kumar state that he was the attending physician. ANALYSIS [20] Hearsay evidence is defined by PART 30.1(2) of the CPR as a statement made otherwise than by a person while giving oral evidence in proceedings which is tendered as evidence of the matters stated. In Re Sharp 18 and Re Kearly 19, the House of Lords showed a preference for the definition in Cross on Evidence 20 as: [a]n assertion other than one by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. [21] Notwithstanding the foregoing, PART 30 of the CPR provides for the admissibility of hearsay evidence in civil proceedings once a hearsay notice is served on the other party no later than the time in which witness statements are to be served 21. However, the Civil Proceedings Rules also gives the Court the discretion to permit hearsay evidence even though the party seeking to adduce it failed to serve a notice 22. [22] The matters stated by the Claimant amounted to expert evidence; he does not possess the necessary expertise to lend such opinions. Therefore, this amounted to hearsay evidence. The Medical Report which should be the 18 [1988] 1 WLR 7 19 [1992] 2 AC th Edition, 1990, p Part 30.2(2) 22 Part 30.8 Page 10 of 25

11 source of this information has been struck out for failure to comply with PART 33 of the CPR. In these circumstances, the Court will not exercise its discretion to allow this information as it stands alone. Accordingly, this paragraph is struck out. o JOEL BASCOMBE [23] The Witness Statement of Joel Bascombe, the driver of the vehicle involved in the said accident that gave rise to this claim, attracted several evidential objections by the Ancillary Defendants which will be dealt with in turn. [24] The first objection is that of Paragraph 4, lines 1-5, which stated: I am an experienced driver, holding a class 3 and class 4 license. I have driven fire trucks and fire ambulances in the past. I have owned and driven numerous vehicles since the issue of my license. I have never had an accident before this occasion and have not had one since. [25] The Ancillary Defendants contend that this is irrelevant and does not relate to any issue for determination by this Court. The Court agrees with the Ancillary Defendants that this paragraph is irrelevant and not probative of any of the issues before me. Further, it places the Defendants at an unfair disadvantage to meet these extraneous and irrelevant allegations. 23 Accordingly, the paragraph is struck out. 23 Terry Alexis v The Attorney General & PC Rajesh Gookol, CV , p.2 Page 11 of 25

12 [26] Paragraph 6, lines 4-5 which stated: I immediately noticed that the driver seemed slouched in his vehicle. The Ancillary Defendants contend that the implication from this sentence is that the driver of the other vehicle was unconscious or had some physical deformity or infirmity just before the accident which caused him to come onto the wrong side of the road and collide with the deponent. [27] The Court does not agree with this submission as this is not the only meaning that can be attributed to the statement. In my view, it is no more than the observation of the deponent which he is entitled to give. [28] The Ancillary Defendant objected to two reports attached to the deponent s Witness Statement, namely: i. Accident Report from Presidential Insurance Co. Ltd.; and, ii. Report from Bab s Auto Body Works. The objection to these two reports, in short, is that they are irrelevant and are not related to any issue for determination between the parties. [29] With regard to the Accident Report made by the deponent the Court is of the view that whether the deponent made a report to his insurer is irrelevant in determining the substantive issue of who was negligent on the day of the accident. Accordingly, the Accident Report is struck out. Page 12 of 25

13 [30] The Report made by Bab s Auto Body Works stated: Due to the extensive damages done on the abovementioned vehicle following an accident, this vehicle is economically unviable to repair. The Ancillary Defendants contend that the Report is inadmissible as it contains hearsay evidence as the matters contained thereof may not have been with the knowledge of the maker. In addition, it contained opinion evidence which failed to comply with PART 33 of the CPR. [31] The Court concludes that there is merit in the submissions of the Ancillary Defendants that the evidence contained in this Report is of opinion. It can also be deemed expert evidence however, the procedure to be adopted in adducing expert evidence, as outlined above, has not been complied with. As such this evidence is inadmissible and is accordingly struck out. [32] Paragraph 14, lines 1-4 reads: Presidential Insurance Company Ltd. (the fourth defendant) then upon the receipt of and based on the Adjusters report paid me the sum of $53, in full and final settlement on a constructive total loss Basis. The Ancillary Defendants contend that the foregoing constitutes hearsay evidence which is inadmissible through this witness and there is no claim for the abovementioned sum. Therefore, there is no basis for giving this evidence. Page 13 of 25

14 [33] It is pertinent to note that the Ancillary Defendants did not object to the Inspection Report made by Cariclaims Investigators & Adjustors but rather what the deponent stated was the action taken as a result of the Report being made and submitted to the insurer. The Court determines that the statement constitutes hearsay evidence as the deponent is not aware of what the insurer took into account in awarding him a figure. Further, the figure proposed by the Adjustors is $64, and not $53, as given to the deponent. [34] Further, the Court is in agreement with the submission that there was no claim for the sum or part thereof, therefore the matters stated in his paragraph are irrelevant to the issue at hand and are accordingly struck out. [35] Paragraph 16 states: I blame the driver of motor vehicle registration number PAZ 3449 for the accident and any personal injuries sustained by the Claimant because the driver: (a) Drove at an excessive speed and in any event too fast in the circumstances; (b) Drove without due care and attention; (c) Drove on the wrong side of the roadway and collided with PCE 9449; (d) Failed to exercise or control any or any adequate control over motor vehicle PAZ 3449; Page 14 of 25

15 (e) Failed to keep any proper lookout or to have any or any sufficient regard for other traffic, particularly oncoming traffic on the said road; and, (f) Failed to stop, to slow down, to swerve or in any other way so as to manage or control the said collision. Paragraph 18 states: The driver of motor vehicle registration number PAZ 3449 is therefore solely responsible for the personal injuries caused to the Claimant, if he had driven properly on the eastern lane the said accident would not have occurred. The Ancillary Defendants contend that the foregoing constitutes inadmissible opinion evidence and conjecture which are irrelevant; and that such statements are more prejudicial than probative of the issue in dispute between the parties. [36] These paragraphs address the issues of fact which is a matter that the Court must ultimately decide. Accordingly, these paragraphs are struck out. o ALLAN HOULASS [37] The Ancillary Defendants made objection to the entire Witness Statement of Allan Houlass, or alternatively: Page 15 of 25

16 i. Paragraph 3, the words An accident report a copy of which is hereto annexed and marked A.H.1 was submitted to our company. ; ii. iii. iv. Paragraph 5, which read: Subsequent to this report our Company sent the said vehicle to the Adjustors Cariclaims Investigator and Adjusters Ltd. We requested a survey and report to be done on the vehicle so that an accurate estimate of the damage incurred can be assessed. A copy of the said report is hereto annexed and marked A.H.2. Paragraph 6, which read: After receiving the report our company incurred loss and damage as follows: Pre-accident value of motor vehicle PCE 9449 $70, Less salvage $11, $59, Less excess $6, Total loss $53, Paragraph 7, which read: We paid the above sum of $53, to the Third Defendant. A true copy of a cheque payment voucher and final release hereto annexed and marked A.H.3 and A.H.4 respectively. The Ancillary Defendants contended that the Witness Statement, or alternatively the highlighted paragraphs contained inadmissible hearsay evidence. [38] Upon a review of the Witness Statement, I conclude that the evidence outlined is not hearsay rather it was within the personal knowledge of the Page 16 of 25

17 deponent as he was the one that dealt with the insurance claim. Further, the matters referred to in his Witness Statement were based on his records that he made during the course of his employment with the Company. [39] Therefore, the entire Witness Statement of Allan Houlass is not stuck out. However, the following alterations are made to it: i. Paragraphs 1 and 2 are allowed; ii. Paragraph 3 from the word Our to damages is allowed, the remainder struck out; iii. Paragraph 4 24 the word our to vehicle is allowed, the remainder struck out; iv. Paragraph 5 25 is struck out; and, v. Paragraph 6 26 is allowed. THE SECOND APPLICATION [40] I will now deal with the second Application of the 15 th April, 2011, by the First, Second and Third Ancillary Defendants and Ancillary Co-Defendant pursuant to PART 26.2 of the CPR to have the ancillary claim of the Fourth-named Defendant for the sum of $53, struck out. [41] The grounds of the Application are: i. The Ancillary Claim of the Fourth-named Defendant is not maintainable in Law as no cause of action is vested in the Fourth- 24 Referenced as paragraph 5 in the Witness Statement 25 Referenced as paragraph 6 in the Witness Statement 26 Referenced as paragraph 7 in the Witness Statement Page 17 of 25

18 named Defendant as insurer or otherwise that would allow a claim to be launched against the First and Second-named Defendant; ii. This is a cause in negligence and therefore the cause of action vests in the insured and not the Insurance Company. The payment by the Insurance Company is pursuant to a contractual relationship between the insured and the Insurance Company and does not operate to move the cause of action from the insured to the Insurance Company; iii. Any rights that the Fourth-named Defendant may have in subrogation to recover any sums paid to its insured under a fully comprehensive policy of insurance does not extend to the right to being action in its own name; iv. Any such action must be brought in the name of the insured. [42] Counsel for the Fourth-named Defendant contended that this Application should not be allowed, as it contains matters which were not disclosed or relied upon in the Defence. ANALYSIS [43] Subrogation is the right by which underwriters, having paid the assured s claim, step into the shoes of the assured and assume the assured s rights and remedies in relation to the subject-matter insured, including rights of recovery against third parties. The right arises automatically by operation of law as soon as payment is made under the policy. 27 Where the assured is entitled to bring an action in tort concerning the subject matter of the loss 27 Insurance Disputes, Lord Justice Hance Iain Goldrein, 2 nd Edition, p. 173, para.8.1 Page 18 of 25

19 in respect of which the indemnity has been paid by the insurers, the insurers are entitled to the benefits of such actions against the tortfeasor concerned whether such actions be founded in negligence. 28 [44] The Fourth-named Defendant having indemnified the Third-named defendant in the sum of $53, has made an ancillary claim against the Ancillary Defendants for damages for loss and damage occasioned by the negligence of the Third Ancillary Defendant; and against the Ancillary Co- Defendant, payment of any judgment that may be obtained against the Defendant in this action in addition to all costs and interest payable in respect of such judgment. [45] The authorities are clear that once the insured has been indemnified by the insurer, the latter can then bring an action against the tortfeasor to reclaim its debt, even if that action is based in negligence. However, in the absence of a formal assignment of the right of action, the insurers cannot sue the third party in their own names 29 they must bring the action in the name of the assured [46] The Fourth-named Defendant did not present any evidence that the Insured assigned his right to action to them. In the absence of this and the evidence before me, I hold that the Application by the First, Second and Third-named Ancillary Defendants and Co-Defendant is allowed. Accordingly, the ancillary claim of the Fourth-named Defendant is struck out. 28 The Law of Motor Insurance, Christopher Shawcross and Michael Lee, 2 nd Edition, p London Assurance Co. v Sainsbury (1783) 3 Doug KB 245, Compania Colombiana de Seguros v Pacific Steam Navigation Co. [1965] 1 Q.B Mason v Sainsbury (1782) 3 Doug KB 61, Clark v Blything Inhabitants (1823) 2 B & C Halsbury s Laws of England, 5 th Edition, Vol. 60, p. 183, para. 220 Page 19 of 25

20 THE THIRD APPLICATION [47] The Third and Fourth-named Defendants are seeking to strike out the Amended Defence, or parts thereof, of the First and Second-named Defendants pursuant to PART 26.2(1)(d) 32 of the CPR. The grounds of the application are: i. The Amended Defence, or alternatively certain paragraphs thereof, ought to be struck out for failure to comply with the requirements of PART 10 of the CPR; ii. iii. iv. The Amended Defence of the First and Second-named Defendants filed on the 12 th January, 2010 was never served on the Third and Fourth-named Defendants in contravention of PART of the CPR; Paragraphs 3 and 4 of the Amended Defence are bare essentials in breach of PART 10.5(4) 34 of the CPR; With regard to paragraph 3, although the Ancillary Defendants have attached to its Defence and Ancillary Claim all supporting documents, i.e. a cheque payments voucher and an Adjuster Report, the Ancillary Defendants in breach of PART 10.5(4)(a) 35 of the CPR failed to state its reasons for the bare denials; v. Further, in paragraph 4, the Ancillary Defendants deny each and every allegation of fact but failed to provide a different version of 32 The court may strike out a statement of case or part of a statement of case if it appears to the court that the statement of case or the part to be struck out is prolix or does not comply with the requirements of Part 8 or When the defendant files a defence, he must also serve a copy on all other parties. 34 Where the defendant denies any of the allegations in the claim form or statement of case (a) He must state his reasons for doing so; and (b) If he intends to prove a different version of events from that given by the claimant, he must state his own version. 35 Ibid. Page 20 of 25

21 events to that of the Ancillary Claimants, which is in breach of PART 10.5(4)(b) 36 of the CPR; vi. Having regard to the requirements of PART 10.4, which requires that a copy of a defence must be served on all parties and PART 10.5 in relation to paragraphs 3 and 4, which both contain bare denials that are no longer acceptable nor sufficient when raising a defence, are all breaches under the rules and are not permitted under the CPR. [48] In response, Counsel for the Defendants submitted that the relevant Part that deals with this issue is that of PART 19.5 of the CPR, which deals with a situation where there was an addition, substitution or removal of a party to proceedings. PART 19.5(6) states: Where the court makes an order for the removal, addition or substitution of a party, it must consider whether to give consequential directions about (a) filing and serving the claim form and any statements of case on any new defendant; (b) serving relevant documents on the new party; and (c) the management of the proceedings. Counsel contended that when their initial Defence was filed the Third and Fourth-named Defendants were not parties to the action. Therefore, PART 10.4 of the CPR could not have applied in such circumstances, as there was no other defendants upon whom to serve the relevant documents. Thereafter, when the Order of the 26 th February, 2010 was made there were 36 Ibid. Page 21 of 25

22 no provisions that the First and Second-named Defendants were to serve the other defendants with their prior Amended Defence. ANALYSIS [49] The Court is of the view that this Application to have the Amended Defence struck out for non-service has been made too late in the proceedings. The Third and Fourth-named Defendants were added as parties to these proceedings almost a year ago, yet this Application is only now being made. It is the duty of Attorneys-at-Law to assist the Court in achieving the overriding objection and ensure the proper administration of justice, instead of using technicalities as a tactical advantage over other parties. This issue should have been raised at an earlier juncture so that proper directions could have been made on the service of all relevant documents to the parties who were added to this action. [50] In the circumstances, the Court orders that the Amended Defence, filed on the 12 th January, 2010, of the First and Second-named Defendants to be served on the Third and Fourth-named Defendants on or before the 27 th January, [51] In the alternative, the Third and Fourth-named Defendants are seeking to have paragraphs 3 and 4 of the Amended Defence of the First and Secondnamed Defendants struck out. These paragraphs read: 3. It is admitted that on the date and place referred to at paragraph 6 of the Statement of Case an accident occurred between motor vehicle registration number PCE 9449 and motor vehicle registration number PAZ Save Page 22 of 25

23 as aforesaid, the First and Second Named Defendants specifically deny paragraph 6 of the Statement of Case and in particular the allegation that the collision was caused by the negligence on the part of the First Named Defendant his servant and/or agent as alleged or at all. 4. In further answer to paragraph 6 of the Statement of Case the Defendant shall aver that the said collision was caused or contributed to by the negligence of the Driver of motor vehicle registration number PCE 9449 in the driving, management and/or control of motor vehicle registration number PCE 9449 causing/permitting same to violently collide with motor vehicle registration number PAZ 3449 in that while the First Named Defendant and his servant and/or agent or authorised driver was lawfully and properly driving motor vehicle registration number PAZ 3449 in an easterly direction occupying the left lane along Valencia Stretch when Driver of motor vehicle registration number PCE 9449 proceeding in the opposite direction suddenly and without warning came onto the path of PAZ 3449 resulting in the said collision. The Third and Fourth-named Defendants contended that these paragraphs contain bare denials without any reasons in support thereof and the First and Second-named Defendants failed to provide a different version of events to that of the Ancillary Claimants; in breach of PART 10.5(4) of the CPR. [52] Upon an examination of the paragraphs, the First and Second-named Defendant did comply with PART 10.5(4) of the CPR in their admissions or denials and thereafter, in paragraph 4, presenting their version of how the accident occurred. Accordingly, this Application is dismissed. Page 23 of 25

24 CONCLUSION [53] In the circumstances, the Court makes the following orders: I. The first Application, of 15 th April, 2011: a. Paragraph 10, lines 1-4 is struck out of the Witness Statement of Gangadeen Seebaran; b. The Witness Summary of Dr. Anil Kumar is struck out; c. The Expert Report of Dr. Anil Kumar is struck out; d. The following are struck out of the Witness Statement of Joel Bascombe: i. Paragraph 4, lines 1-5; ii. Paragraph 11, lines 3-5 and the Accident Report attached and marked J.B. 1 ; iii. Paragraph 12, lines 2-6 and the Garage Report attached and marked J.B.2 ; iv. Paragraph 14, lines 1-4; v. Paragraph 16 and 18; and, e. The following alterations are made to the Witness Statement of Allan Houlass: i. Paragraph 3 from the word Our to damages is allowed, the remainder struck out; ii. Paragraph 4 the word our to vehicle is allowed, the remainder struck out; and, iii. Paragraph 5 is struck out. f. The Ancillary Claimant is to pay to the First, Second and Third Ancillary Defendants and Ancillary Co-Defendant costs Page 24 of 25

25 of this application. The costs of this application is to be assessed by a Registrar in default of agreement. II. III. The second Application of the 15 th April, 2011 is allowed; a. The Fourth-named Defendant to pay to the First, Second and Third-named Ancillary Defendants and Co-Defendant costs in this Application, to be assessed by a Registrar in default of agreement. The third Application of 19 th April, 2011 is dismissed; a. The Third and Fourth-named Defendants to pay to the First and Second-named Defendants costs in this Application, to be assessed by a Registrar in default of agreement. JOAN CHARLES JUDGE Page 25 of 25