IN THE HIGH COURT OF JUSTICE. Between FIDEL RAMPERSAD RAJ KAMAL REDDY AVUTHU RYAN RICHARDSON VISHAM BHIMULL SHAUN LYNCH AND

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1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No: CV IN THE HIGH COURT OF JUSTICE Between FIDEL RAMPERSAD RAJ KAMAL REDDY AVUTHU RYAN RICHARDSON VISHAM BHIMULL SHAUN LYNCH AND Claimants MEDICAL PROFESSIONALS ASSSOCIATION OF TRINIDAD AND TOBAGO Defendant Before the Honourable Mr Justice James C. Aboud Dated: 23 January 2015 Representation: Ms Kandace Bharath for the claimants Mr Rishi Dass instructed by Ms Nesha Abiraj for the defendant REASONS FOR DECISION 1. On 9 December 2014 I determined the defendant s notice of application of 18 July It sought to strike out the claim form, the amended claim form and the statement of case Page 1 of 10

2 for the reason that the claim form had been filed without a statement of case and that permission to do so had never been granted. Background 2. The claim form was filed together with a notice of application on 16 April A statement of case did not accompany it. The notice of application sought an interim injunction preventing the defendant from holding an election of its officers on the next day, namely 17 April The gist of the claimants case is revealed in the reliefs set out in the claim form. The claimants allege that they are members of the defendant association who intended to contest the election of its officers and that they are being prevented from doing so by the executive who consider their nomination papers to have been submitted out of time. The claimants say that the deadline for submission was published in a notice carried on the defendant s website and they rely on the efficacy of that notice. Further details of the claim are contained in the affidavits in support of the injunction. The court s file reveals that the application was heard after hours on 16 April 2014 by the emergency judge who, early on the following morning, granted an injunction restraining the defendant from holding the election. 3. The file reveals two omissions on the part of the claimants attorneys. The first concerns the filing and service of an amended claim form. The emergency judge granted an order on the night of 16 April permitting the amendment of the claim form. It was supposed to be filed and served on 17 April but was not. On 23 April 2014 the claimants filed a notice of application to extend the time for filing and service of their amended claim form from 17 April 2014 to 22 April However, they did not serve the application on the defendant. The matter came up for hearing before me on 12 May 2014 and the claimants, although they had filed it on that day, still had not served the amended claim form on the defendant. The amendment was not radical. It inserted an allegation that the refusal to allow the claimants to participate in the election was a breach of the Rules of the Association. At that hearing the claimants by consent obtained permission to extend the time for filing and service of the amended claim form to 12 May. Page 2 of 10

3 4. The second omission concerned the filing and service of the statement of case. At the hearing on 12 May the defendant s counsel informed the court that no leave had been sought to issue a claim form without a statement of case and that the defendant was not waiving this default. As a matter of record, the statement of case was in fact filed on 12 May but it had not, in that short space of time, reached my file in court. I am not sure whether the defendant s attorneys were aware of this but the claimant s attorney says that she informed the court that it had been filed on that very morning. 5. No order was sought or granted on 12 May 2014 for filing and service of a statement of case out of time. On 24 June 2014, two months and one week after the claim form was filed, the claimants purported to serve the statement of case filed on 12 May No order permitting such service had been sought or granted. Despite the defendant s objection that no permission had been sought to issue the claim form without a statement of case, the claimants had not, up until the date of my decision, filed any application for permission to file a claim form without a statement of case. Law 6. The Civil Proceedings Rules 1998 include these: PART 1 The overriding objective 1.1 (1) The overriding objective of these Rules is to enable the court to deal with cases justly. (2) Dealing justly with the case includes (a) ensuring, so far as is practicable, that the parties are on an equal footing; (b) saving expense; (c) dealing with cases in ways which are proportionate to (i) the amount of money involved; (ii) the importance of the case; (iii) the complexity of the issues; and Page 3 of 10

4 (iv) the financial position of each party; (d) ensuring that it is dealt with expeditiously; and (e) allotting to it an appropriate share of the court s resources, while taking into account the need to allot resources to other cases. Application by the court of the overriding objective 1.2 The court must seek to give effect to the overriding objective when it Duty of the parties PART 8 (1) exercises any discretion given to it by the Rules; or (2) interprets the meaning of any rule. 1.3 The parties are required to help the court to further the overriding objective. The claimant- how to start proceedings 8.1 (1) Proceedings are started by filing in the court office the original and one copy (for sealing) of (a) a claim form; and (b) the claimant s statement of case. Statement of case to be issued and served with claim form 8.2 (1) A claim form may be issued and served without the claimant s statement of case only where (a) any of these Rules requires an affidavit to be filed in support of a claim; (b) the claimant has included in the claim form all the information required by rules 8.6, 8.7 and 8.8; or (c) the court gives permission. (2) The court may only give permission if it is satisfied that (a) the claim must be issued as a matter of urgency and that it is not practicable for the claimant to prepare a statement of case; (b) Page 4 of 10

5 (3) An application for permission may be made without notice but must be supported by evidence. (4) Any order giving permission for the claim form to be served without a statement of case must state a date by which the statement of case must be served. (5) Such date must in no case be more than two months from the date of service of the claim form. (6) A copy of the order must be served with the claim form. Claimant s duty to set out case PART (1) The claimant must include on the claim form or in his statement of case a short statement of all the facts on which he relies. (2) The claim form or the statement of case must identify or annex a copy of any document which the claimant considers necessary to his case. General power of the court to rectify matters where there has been an error of procedure 26.8 (1) This rule applies only where the consequence of failure to comply with a rule, practice direction or court order has not been specified by any rule, practice direction or court order. (2) An error of procedure or failure to comply with a rule, practice direction or court order does not invalidate any step taken in the proceedings, unless the court so orders. (3) Where there has been an error of procedure or failure to comply with a rule, practice direction, court order or direction, the court may make an order to put matters right. (4) The court may make such an order on or without an application by a party. Reasoning 7. A claim form may only be filed without a statement of case where the Rules require the filing of an affidavit instead of a statement of case, or when all the information required by rules 8.6, 8.7, and 8.8 to be included in the claim form are included, or when permission has been granted by the court to do so (rule 8.2(1) (b)). Any of these situations will suffice to cure the absence of the statement of case. Of the information required to be included in the claim form rule 8.6 provides that the claimant must set out Page 5 of 10

6 a short statement of all the facts on which he relies. Rule 8.8 requires the inclusion of a certificate of truth signed by the claimant or his attorney. The short statement of facts must refer to the specific material that the claimant is relying on to advance his case. In other words, without the statement of these facts the case would make no sense to the defendant. He would be in the dark as to what the claim was all about or why he was being sued. The certificate of truth provides an important assurance to a defendant that the contents of the claim form are declared as the truth. This is the case that you have to answer, I certify it as the truth is what it really amounts to. 8. In cases where permission must be sought the court may only give permission where it is satisfied that the claim must be issued as a matter of urgency and that it is not practicable for the claimant to prepare a statement of case at the same time as the claim form (rule 8.2(2)(a)). An application for permission to file a claim form without a statement of case must be supported by evidence (rule 8.2(3)). In the event that permission is granted the statement of case must be served no later than two months after the service of the claim form. The Rules do not give the court any leeway to provide a longer time for the service of the statement of case. The necessity for promptitude is not difficult to deduce. A defendant must not be placed in the dark as to what claim is brought against him. He should not be made to sit indefinitely under the sword of Damocles, unaware of whether it is made of steel or paper. This is a fundamental goal of rule The Rules do not stipulate when the application for permission must be made. Rule 8.2(6) provides that a copy of the order must be served with the claim form, suggesting that permission should be granted before or upon its issue. If the urgency in filing the claim form makes the filing of a statement of case impractical then the same might be said about the impracticality of making the permission application as well. Nonetheless, in the absence of any specific time stipulation, it seems to me that the Rules contemplate permission being sought prior to or on issuance of the claim form. At any rate, the defendant will know, upon service of the claim form, that permission was granted to issue it without a statement of case, and that that document will be delivered in no more than two months time. The mischief that rule 8.2 seeks to address is the service of a bare claim form without the defendant knowing, as soon as possible, a statement of the case Page 6 of 10

7 that he has to meet. The general philosophy of the CPR is that claims are born whole and capable of being instantly defended. 10. In the case before me the claimants attorneys cannot even generously be described as attentive to their duties. They filed the claim form without the statement of case on 16 April. The emergency judge gave them permission to amend the claim form and to serve it on 17 April. They needed an extension of time to file and serve the amended claim form, which they did on 12 May. They filed the statement of case on 12 May (about one month after the claim form was issued) and served it on 24 June (two months and one week after the claim form was issued). Notwithstanding the complaint of the defendant they never filed an application for permission to issue the claim form without a statement of case. 11. At the hearing of the defendant s application to dismiss the action Mr Dass, who appeared for the defendant forcefully argued that the plain meaning of the Rules must be applied. Rule 8.2(1) was clear, he said. A statement of case may be served only where one of the situations described in that rule obtains, namely, that an affidavit is required instead of a statement of case, or the claim form has included the information required by rules 8.6, 8.7, and 8.8, or where the court gives permission. He said that in the absence of any of these situations the court had no discretion and must dismiss the action. He relied on a number of authorities. In Elias Alexander v Attorney General of Trinidad and Tobago, (unreported), decision of Dean-Armorer J, 16 February 2012, a strict approach was applied in a case where there was no statement of the facts relied on in the claim form and no permission had been sought. The claim was dismissed. However, I note that the claim as disclosed in the claim form did not, in the learned judge s opinion, disclose a cause of action, and bordered on being ludicrous. 12. Mr Dass also relied on Vinos v Marks and Spencer plc [2001] 3 All ER 784 a decision of the English Court of Appeal. In that case the claimant s solicitors failed to serve the claim form and statement of case within the four-month time frame specified by the Rules. They did not, in their application to extend the time, include any reason for their failure to do so. It was held that the reason must be provided and, in the absence of such Page 7 of 10

8 a reason, the court had no discretion to extend the time, and thus could not utilize the slip rule contained in Rule 3.10 (which equates with our rule 26.8). 13. Ms Bharath, for the claimant, emphasised that all the material particulars of the claim were contained in the reliefs in the claim form, that there were five affidavits filed in the matter, and that the defendant s counsel attended the contested ex parte hearing on the night of 16 April and fully participated. She submitted that the criteria to be applied in an application to dismiss were qualitatively different from those to be applied in an application for permission, in the main because the consequences to the claimants were draconian. 14. Having heard arguments I dismissed the defendant s notice of application. My decision was based on the special circumstances of this case. In my view, it cannot rightly be said that the defendant did not have a clear understanding of the case it had to meet. Its counsel attended the hearing before the emergency judge and was privy to the five affidavits filed in the injunction proceedings. Annexed to these affidavits were all the documents required to assert the claimant s case, including detailed pre-action letters exchanged between the parties. The issues to be decided revolve around matters that are well-known to the parties, namely, whether or not the claimants are entitled to participate in the elections by virtue of their reliance of the notice published on the defendant s website. It is not a case like Elias Alexander that involved a dubious claim in circumstances where the claim form was bereft of information. It would be unreal to imagine that there was any doubt in the instant case as to what claim needed to be defended. In addition, the emergency judge, in granting permission to file and serve an amended claim form on the night of the hearing, must be taken to have approved its filing and service in the absence of a statement of case. No objection was taken to this course of action on 16 April. 15. Any examination of the facts surrounding the absence of a statement of case must necessarily acknowledge that the claimants moved the court for the injunction on the night before the election. The fact that there was an urgency cannot be gainsaid by any party. Had an application for permission been filed pursuant to rule 8.2(2) there would Page 8 of 10

9 have been little doubt that it would have been granted. I would say that such an application is rather routine and almost always unopposed. To say that there are no facts presented to the court to allow it to consider the grant of permission is somewhat myopic. While it is true that no affidavit was filed in support of a permission application it is not far to see what such an affidavit would contain. 16. Part 8.2 does not specify the consequence of failing to obtain permission to file a claim form without a statement of case. If it did so then the court would have no power under rule 26.8 to rectify an error of procedure or a failure to comply with a rule. The decision to make an order to put matters right (26.8(3)) is one of discretion. There was sufficient material before me to exercise that discretion: the reliefs in the claim form contained sufficient assertions to put the defendant on notice of what the claim was about; the claim form contained a certificate of truth; the affidavits were fully explanatory and were in the possession of the defendants since 16 April; and the emergency judge granted permission to file and serve an amended claim form on 16 April knowing that there was no accompanying statement of case. Further, the statement of case had been belatedly filed two months and one week after the claim form, and before the defendant s strike out application. This is one week beyond the time that the emergency judge could have given, had permission been sought. In addition, and apart from these considerations, had an application for permission been filed on the grounds of urgency there would have been little doubt that it would not have been granted, or even opposed. 17. To my mind the dismissal of the claimants action would have had a nuclear effect and would not have promoted the overriding objective of dealing justly with the case. The overriding objective must be given effect when exercising a discretion or interpreting a rule (rule 1.1). There was an injunction in place preventing the holding of an election. The injunction would have immediately disappeared along with the action. It is either that the elections would have then been held excluding the claimants participation or that a fresh action for an injunction would need to be filed to prevent its holding. While it is true that the defendant s elections have been held up I am not sure that the blame for this must necessarily be attributed to the delay in serving the statement of case. There are ample and effective mechanisms to vacate or set aside injurious injunctive orders but they Page 9 of 10

10 have deliberately not been activated, save the procedural mechanism now obliquely utilised in the instant application. 18. In order to achieve the overriding objective I dismissed the defendant s application and granted permission to the claimant to make an application for permission to file the amended claim form without a statement of case. I guarded that order by specifying that if the permission application was not filed by 16 December the action would stand dismissed. To address any prejudice inherent in my order I directed that the claimants should pay the costs of the defendant s unsuccessful application, which I assessed in the sum of $21,000. James C. Aboud Judge Page 10 of 10