IN THE HIGH COURT OF JUSTICE. KAREN TESHEIRA (The Executrix of the Estate of Russell Tesheira) AND

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN KAREN TESHEIRA (The Executrix of the Estate of Russell Tesheira) AND Claimant GULF VIEW MEDICAL CENTRE LESTER GOETZ CRISEN JENDRA ROOPCHAND Defendant Before the Honorable Mr. Justice V. Kokaram Appearances: Mr. De La Bastide for the Claimant led by Mr. Mendes S.C. instructed by Ms. Nyree Alfonso Ms. Thompson-Bharath led by Mr. Hamel Smith S.C. for the second Defendant Mr. Harrikissoon and Mr. Rajkumar for the first and third Defendant JUDGMENT 1. Before this Court is the Claimant s application for relief from sanctions and permission to adduce evidence of expert witnesses 1. 1 The Claimant s application dated 2 nd February 2010 for relief from sanctions is in relation to the order of Master Paray Durity made on 20 th July 2009 with respect to the filing and service of witness statements of the Claimant s witnesses and her list of documents on or before the 17 th December The application also sought permission 1

2 2. Applications for relief from sanctions are contextual and fact specific. It is now trite law that a litigant must first satisfy a threshold test of promptitude, intentionality, good reason and general compliance before the Court can consider the other factors set out in rule 26.7 (4) CPR for exercising its discretion to grant relief. Those factors are the interests of the administration of justice; the blameworthiness of either attorney or party for the failure to comply; whether the breach could be remedied within a reasonable time and the impact on the trial date. 2 These are factors which are weighed and measured by the Court against the particular factual context of the proceedings and the failure to comply. In Reid Monza v Price Waterhouse Coopers Limited CA , Kangaloo JA observed: It is now accepted in this jurisdiction that an applicant seeking relief from sanction must satisfy all the requirements set out in rule 26.7(1) (2) and (3) before the Court could consider exercising its discretion to grant relief The type of analysis involved in determining whether there is a good explanation for the breach and whether the applicant has been generally compliant are essentially judgment calls to be made by the judge in the exercise of his/her discretion. It therefore cannot be said that rule 26.7(1) (2) and (3) is to be applied in a manner to deprive the court of its discretion; a wide discretion which is readily apparent from the structure of the relief from sanctions provisions. (emphasis mine) to file a supplemental list of documents and in the event that the specialist medical practitioners that the Claimant proposes to rely on are deemed by the Court to be expert witnesses within the meaning of Part 33, permission to call them as expert witnesses and to adduce into evidence their expert reports. The application was supported by an affidavit and supplemental affidavit sworn by instructing attorney at law, Nyree Dawn Alfonso. 2 The Rule is properly to be understood as follows. Rules 26.7(1) and (2) mandate that an application for relief from sanctions must be made promptly and supported by evidence. Rules 26.7(3) and (4) are distinct. Rule 26.7(3) prescribes three preconditions precedent that must all be satisfied before the exercise of any true discretion arises. A court is precluded from granting relief unless all three conditions are satisfied. Rule 26.7 (4) states four factors that the court must have regard to in considering whether to exercise the discretion granted under rule 26.7(3). Consideration of these factors does not arise (if the threshold pre conditions at 26.7 (3) are not satisfied) per Jamadar JA CA 65 of 2009 Trincan Oil Limited v Chris Martin. This approach is endorsed in Miguel Regis v Attorney General of Trinidad and Tobago CA Civ 79/2011 and The Attorney General v Universal Projects Limited [2011] UKPC 37 2

3 3. It is also common ground that, as has been recently endorsed by the Privy Council 3, the underlying policy of our relief from sanction regime is to instill discipline in the conduct of civil litigation in this jurisdiction and to prevent a slippage to the laissezfaire attitude adopted by litigants and/or attorneys which stymied the effective management of civil litigation under the former rules. Jamadar JA observed in AG v Regis CA 79 of 2011: We wish to highlight that the CPR, 1998 is designed to promote a culture of compliance, and that the non-compliant ought not to govern the conduct and pace of litigation The system is progressive and proportionate. This system honours the conscientious, while accommodating the non-compliant within guided parameters. This approach promotes a culture of compliance, while at the same time eroding the vicious cycle of laissez-faire. 4. Judges in exercising this discretion under rule 26.7 CPR 4 must be cautious in drawing references to relief from sanction decisions in other cases as no two cases are alike. As Kangaloo JA pointed out these are judgment calls being made by the Court in their management of the case against its own backdrop of facts and circumstances. Lord Woolfe provided useful advice in his foreword to the Caribbean Civil Practice when he said: 3 See Attorney General v Keron Matthews and Attorney General v Universal Projects Limited (2011) UKPC Part 26.7, CPR, 1998 states: (1) An application for relief from any sanction imposed for a failure to comply with any rule, court order or direction must be made promptly. (2) An application for relief must be supported by evidence. (3) The court may grant relief only if it is satisfied that (a) the failure to comply was not intentional; (b) there is a good explanation for the breach; and (c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions. (4) In considering whether to grant relief, the court must have regard to (a) the interests of the administration of justice; (b) whether the failure to comply was due to the party or his attorney; (c) whether the failure to comply has been or can be remedied within a reasonable time; and (d) whether the trial date or any likely trial date can still be met if relief is granted. 3

4 The advice that I give if I may to the jurists who have responsibility of applying the Caribbean CPR is that whenever possible they should avoid giving decisions which seek to bind other judges as to how the CPR should be applied the former Rules of Supreme Court became encrusted with unnecessary precedents which made their application difficult and hazardous. The same fate is now threatening the CPR by which they were replaced. We must do our best to avoid this happening to the Caribbean CPR 5. As we continue to shape our indigenous civil landscape we must also do our best to resist the temptation to seek authoritative guidance in the application of the 26.7 CPR factors from decisions in relief from sanction applications made against the backdrop of a different relief from sanction regime and philosophy. It would be a distortion and disfigurement of our jurisprudence like a douen 5 with its feet pointed backwards if we feel compelled to follow an alien jurisprudence which is not relevant to our local needs and our indigenous litigation culture. The structure and language of the relief from sanction regime in the English CPR which were relied upon by the Claimant in this application is markedly different from the rule 26.7 CPR. This difference in both structure and language as correctly submitted by the Defendant, reflects priorities which were set and choices which were made by the framers of our CPR as to how these provisions might most effectively contribute to achieving the difficult but essential objective of changing the Trinidad and Tobago litigation culture. The Privy Council in Charmaine Bernard v Ramesh Seebalack 2010 [UKPC] 15 accepted that it will be wrong for it to adopt an interpretation to the rules which would undermine the attempts made by the Rules Committee (supported by (5) The court may not order the respondent to pay the applicant s costs in relation to any application for relief unless exceptional circumstances are shown. 5 Douen (pronounced Dwen [Trinidad and Tobago folklore]) are considered to be the lost souls of children that were not baptized or christened before death. It is said that they are destined to wander the earth eternally while practicing their collection of pranks. Neither male nor female, douens live in the forest, swamps and near rivers in Trinidad and Tobago. Their manifestation is that of a naked child never growing more than two or three feet in height. They wear a large floppy straw hat and have an entirely undistinguished face with the exception of a small mouth. The one characteristic that allows them to be recognized as douens are their feet, which are turned backwards with the heel facing forward. (en.wikipedia.org/wiki/douen) 4

5 the Court of Appeal) to determine the efficiency of civil litigation in Trinidad and Tobago. 6. Usefully the second Defendant provided a comprehensive list of relief from sanction applications in this jurisdiction. In the main the applications were refused and each reflected decisions against its own backdrop: A-G v. Universal Projects Limited 2011 [UKPC] 37- The Defendant had an extended 21 days to file its defence. The Defendant failed to file its defence on the appointed date. The reason given by the Defendant for its failure to comply with the order of the Court was that the Defendant s advocate attorneys in the matter took the view that outside counsel should be retained and that authorization for this course should be obtained from the Solicitor General. This took time because there was no Solicitor General and the approval of the Attorney General was required. In the result, outside counsel were not instructed until two days before the defence was to be filed. On the last date for the filing of the Defence, the Defendant wrote a letter to Gobin J informing her that counsel were examining the documents in their briefs feverishly and that they required additional time to absorb their instructions and advise the Attorney General. It would not be possible to file a defence that day. AG v. Keron Matthews 2011 [UKPC] 38- The Defendant was one month late for filing its defence. The reason given for the failure to file the defence on time was that additional time was needed to obtain complete instructions from the Prison Officer Garcia. Gregorio Gonzales v. A-G C.A CIV. 71/10- The application was nine months out of time. The explanation given for the delay was that the file had been inadvertently misplaced. David Bhatoo v. Nandoolar Bhatoo & Ors C.V CIV 249/10- Almost 8 months had elapsed before the Defendants filed their application for an extension of time 5

6 to file affidavits inter alia. The Defendants' explanation for their failure to comply with the directions was that the Defendants' attorney had inadvertently placed their file among his completed files. A-G v. Ronald Joseph C.A CIV. 249/10- The Claimant was 6 weeks out of time. The reason given by the Claimant for the failure to file the witness statements and list of documents was on account of the weather conditions existing on that particular day heavy rains and lack of access; the Claimant had attempted to file the documents before but was handicapped by the position taken at the court office by members of staff. A-G v. Rajesh Balkisson C.A CIV. 8/11- The relevant police officers did not attend the meetings arranged by State Counsel. Some attended but without instructions. From what appeared to be a laissez-faire attitude on the part of the relevant police officers the court was left with the impression that the police officers concerned and even the senior police officers to whom correspondence had been sent did not give this matter the attention it required; there was on their part a failure to be prompt and diligent. Miguel Regis v. A-G C.A CIV. 79/11- The Appellant made his application for relief from sanctions and an extension of time 1 day out of time. The reasons given for the failure to comply with the Order of the Court was that the Defendant has been unable to secure the necessary instructions of the Police Complainant as he was on sick leave in order to settle his defence. Nigel Architecture v. Primis Corporation Limited CV The Defendants were two months late in filing its witness statements. Suresh Churan v. Shiva Durgasingh CV 01794/09- The Defendant was a little over a month late in filing his Witness Statements. The reason advanced for the delay was that at sometime in May 2010 at latest it became apparent that there 6

7 would be a difficulty in complying with the Order because of the illness of instructing attorney since the month of April. No application was made then for an extension of time. Mainway Industrial Installation Limited v. Bravelion Industries Limited CV 2009/ The Defendant made an application in for relief from sanctions for failure to serve its defence. The Defendant sought a further extension of time from to The Court found the Defendant s affidavit lacked in particularity -no good explanation offered for delay the court finds that the affidavit contained gaps - the affidavit was lacking in particularity, omitting pertinent details within the timeline in order to offer a good explanation for the delay. Gowrie Persad Singh v. Jainarine Kissonsingh CV 2009/ The relevant date from which time began to run against the Defendants for making the necessary application for relief from sanctions was By notice of application filed on , the Defendants sought an extension of time for filing a defence. The defendants contend that the parties' attorneys were in the process of negotiating a settlement but that they have not been able to fully resolve the issues. The failure to file was allegedly due to negotiations. Marcella Zamora v. A.G CV The Defendant's application for relief from sanctions on 10 th November 2010 was made promptly as the time for filing its defence expired six weeks after the date the court term began, time for filing it was not running during the court vacation. The reasons given are; non attendance of witness; witness attends but unable to provide instructions; family emergency; Bereavement leave: - Letter requesting extension oral response by Claimant s attorney that extension not required defence not due; Defendant s Attorney-at-law requests extension of time for the filing of defence from Attorneyat-Law for the Claimant- no response save filing of application for Judgment on November 10. 7

8 Jerry Baksh v. Doc s Home Limited CV In this case the sanction was imposed on 23 rd November 2010 and the application was made on 8 th April 2011 some 4 1/2 months after the sanction was imposed. The reason given by the Defendant for the failure to comply with the Court s order amounted to a failure on the part of the Defendant to put adequate systems in place to actively manage its business and more importantly to monitor the work entrusted to its senior officers. Mitch Francis & Natasha Francis v. HDC CV. 2009/ The Claimant s application was made some 21 days after the sanction was imposed. The reason advanced for the delay was that the system with which the Claimants' attorneys operated was not the best since there was no other place than the file where court directions were recorded. However the Court pointed out that the Claimants' attorney did not take the simple first step of telephoning the High Court Registry, or the relevant judicial support officer, or the customer services desk situated on the ground floor at the Hall of Justice, Knox Street, Port of Spain to obtain the information on the directions to be complied with and in the circumstances the explanation offered by the Claimants did not amount to a good explanation. Claudette Williams v. South CV The Claimant filed her application on 6 th July 2010, for relief from sanctions for failure to file and exchange witness statements on or before 5 th May 2009 and for an extension of time to file witness statements, the witness statement of Dr. Santana and supplemental affidavit of the Claimant. The application was more than 14 months after the deadline. The Claimant stated as reasons for failure to comply with the Court s order that the documentation and paperwork in this matter was voluminous and that it was only recently in preparing this matter and checking on all that is to be done in preparation for trial that she discovered among papers a copy of a statement prepared for signature of Dr. David Santana on the file. On further enquiries it became apparent that the said statement was never signed nor filed. The reason 8

9 for not filing the statement or discovering this oversight before was due to inadvertence and lack of continuity in the conduct of this matter. Lloyd Charles & Ors. v. North West Regional Health Authority CV 2008/2172- The Claimants' application filed on 27 th April 2011 seeks an extension of time to file and serve their witness statements and for relief from sanctions. The attorney for the Claimants submitted that the second claimant had signed and sworn to his statement on the 5th February, 2010 so had done all that was necessary, on the deadline date, to comply with the order. However on the deadline date, the court office refused to accept his witness statement for filing because it was on long paper; the second claimant had already left to do business in San Fernando so could not return that day to rectify the default and the first claimant was out of the jurisdiction; Mrs. Hyacinth Griffith, in a bid to meet the deadlines set by the court, signed the statements on behalf of both claimants; the documents filed on 5th February, 2010 were witness summaries and the court was asked to exercise its discretion and so declare and allow their use at the trial; the claimants had always demonstrated interest in pursuing their claim; the unless order was draconian and made when the claimants were unrepresented in court; and the claimants were the ones likely to be prejudiced by having their claim struck out. The Court held as at 5 th February 2010, there was non-compliance by the claimants with the unless order, the consequence of that was that the claim automatically stood struck out. In granting a relief from sanctions application in C.A CIV. 15/11 Reed Monza (Trinidad) Limited & Ors. v. PriceWaterhouseCoopers Limited & Ors.- The Court of Appeal stated that the order made at CMC is ambiguous and open to more than one interpretation. Therefore the judge erred in calculating the delay; as such the conclusion of the judge that there was a six week delay on the part of the Appellants cannot be upheld. 9

10 In CV Roger Alexander v Alicia House Limited the Court did not apply the 26.7 factors in granting relief. 7. It will be wrong to fetter the Court s discretion by reference to these decisions as each Court either in granting or refusing relief from sanctions is in fact making delicate fact based decisions for the proper management of the case. The authorities however do underscore the fundamental principle enunciated by Jamadar JA in Miguel Regis 6 that in managing cases the court is keen on promoting a culture of compliance and eroding the vicious cycle of laissez faire. 8. Jamadar JA in AG v Miguel Regis explained the nature of the discretion to be exercised in dealing with relief from sanction applications: At every level of consideration in Part 26.7 there is the necessity for the exercise of judicial evaluation, analysis and discretion. The fact of a threshold does not remove judicial discretion or force judges to mechanistically apply rules to shut litigants out. All that a threshold does is to structure the weighing and balancing of values and consequently the exercise of judicial discretion. This structuring (weighing and balancing) of values is a normative act designed to assign to values their appropriate place at this time in the scheme of Part It is purposeful. It does not negate the exercise of judicial discretion, though it does regulate it. What is prompt, whether there is intentionality or good explanation or general compliance, all involve the engagement of the judge in the judicial process of sifting, weighing and evaluating fact and circumstance before arriving at a decision. These judicial functions all constitute the exercise of judicial discretion. Judicial discretion implies a power to choose, decide and determine according to one s own judgment. It is a power to be exercised, not arbitrarily or according to the subjective whims of a judicial officer, but, in accordance with the will of the law. From this general proposition it 6 Ibid 10

11 follows that there are many aspects of judicial discretion. However, what is common to all is choice. 9. This choice is made by the Court in the context that civil litigation is court driven applying the principles of equality, proportionality and economy. It must be remembered that the exercise of the discretion conferred by the rules under the relief from sanctions regime is part of the exercise of the court s case management powers. The context of case management is to further the overriding objective. Specifically rule 25.1 (g) CPR outlines one of the Court s duties in furthering the overriding objective by actively managing cases as including the fixing of timetables or otherwise controlling the progress of the case. The Court will therefore have as its axis the notion of dealing with cases justly. It does this by the court s actively managing cases and exercising the discretion conferred on it by the rules. Although a general appeal to the overriding objective in considering a relief from sanction application is misplaced as the rules specifically set out how the discretion is to be exercised, it cannot be gainsaid that the entire context of the grant of relief from sanction is a case management exercise to further the overriding objective. These questions of promptitude, good reason, general compliance and intentionality are all the sign posts of efficient litigation built on our experience of the delay which burdened litigation under the previous rules. They now point a clear direction to the development of a new culture of litigation designed to minimize protracted delay and as well to demystify the manner in which a court will exercise its discretion in dealing with these applications. 10. Jamadar JA in Miguel Regis quite usefully links the question of judicial discretion within the structure of rule 26.7 CPR. Part 26.7 is therefore full of opportunities for the exercise of judicial discretion. However this discretion is regulated by the structure of the rule in order to reduce subjectivity, prioritize values and to achieve a specific aim with reasonable predictability and equality. In addition, as the Court of Appeal has been at pains to explain, context and circumstance are the 11

12 primary factors in the analysis and evaluation of the Part 26.7 requirements. Thus, what may be considered a good explanation may vary not only in the evaluation under each limb in the circumstances of each case, but also with the stage of the proceedings; for example what may be a good explanation when the filing of an application occurs early in the process may not be so later on or after judgment and on an appeal. So also in relation to whether the application for relief is prompt or whether there is intentionality or general compliance. These are all matters for the discretion of the judge. It is therefore an unfortunate mistake to assume that a judge who is called to apply Part 26.7 is somehow reduced to a mere automaton. 11. The Claimant has argued that the discretion must be exercised in a manner in accordance with the constitution and that it does not contravene the Claimant s rights to the protection of the law and a right to a fair hearing. Unfortunately the authorities relied upon by the Claimant do not deal with the relief from sanction regime in this jurisdiction. This learning in Regis on the exercise of the discretion has been met with the approval of the Privy Council in the recent authority of Keron Matthews and Universal Projects. 12. Before I proceed to deal with the present application and weigh up the relevant considerations within its proper factual context I must make two observations. 13. First this Court will encourage parties at all stages in litigation to arrive at consensus in procedural applications. Protracted procedural applications are a waste of judicial and litigants resources. Where there can be agreement parties should work towards consensus. This applies to extensions of time, admissibility of documents, disclosure, expert evidence, further information, filing joint statements, the entire list of procedural matters that will involve managing a case towards a trial. Indeed it is the duty of the Court in actively managing cases to encourage the parties to cooperate with each other in the conduct of proceedings. Rule 1.3 CPR also imposes 12

13 an obligation on the parties themselves to co-operate with one another to further the overriding objective. In Morris v Bank of America National Trust and Savings Association [2009] 1 AER 954 it was observed that in complex cases the advocates who are expected to be instructed to appear at the trial should attend case management conferences or pre trial reviews before the judge so that they can discuss with him in a collaborative manner ways in which the conduct of the trial might be made less burdensome. 14. In Western Australia, the Honourable Chief Justice W. Martin explained the reduction in procedural applications by utilizing a philosophy of consensus in working out procedural matters: In Western Australia, we have actively and aggressively discouraged interlocutory disputes. We've made no secret about that. We have embraced the notion of proportionality which was first identified by Lord Woolfe and we apply it forcefully. If someone comes along and says, "We want to have a day's hearing about this particular point on the pleading", we might look at it and say, "No, that day and the time and money spent on that day is not justified by the significance of that issue to the just disposition of the case, so we will hear the application, which is dismissed". That approach is not uncommon. We also have the benefit of a very important rule of court, Order 54 rule 9, which requires the parties to confer before they can initiate any interlocutory dispute. In judicial decisions, we have made it clear what conferral means. Conferral does not mean writing an aggressive and derogatory letter to the other parties' solicitors and sending a copy to the client. Conferral means, ideally, a face-to-face meeting between people with authority to resolve the interlocutory dispute, and at a minimum, it means a telephone conversation between people with that authority. We have found that insistence upon compliance with this rule has been enormously successful in discouraging the volume of interlocutory disputes in the court. 7 7 The Future of Case Management speech of the Hon Chief Justice W Martin delivered at the Australian Legal Convention, Perth 19 th Sept

14 15. The proliferation of procedural disputes should be minimized. If the credo of procedural consensus is adopted as part of the philosophy of civil litigation, cases may be managed more efficiently and effectively. It will also reduce the temptation to engage in procedural wrangling for mere tactics or as battles for costs. Of course this will be subject to the monitoring and authorization of the Court. To give an example I have frequently indicated to parties that relief from sanction applications can be reduced if parties collaborate and make joint applications to vary the court s timetable under rule 27. These can be dealt with in chambers without a hearing and via electronic means. Having said that I have noted an increase in the use of this procedure. While this is encouraging as it minimizes the procedural battles, the Court will be keen to ensure that this facility is not abused so as to affect trial dates or significant pre trial activity. The parties may request that a timetable be varied however they must not be lulled into a belief that they are guaranteed that a court will always accede to the request. We must all be conscious of the time within which claims under the CPR are to be resolved. 16. The second observation is the use of alternative dispute resolution in the just disposal of cases. I had earlier mentioned the question of mediation in this matter but was not met with an enthusiastic response from any party. Claims in medical negligence are classic cases that are mediate-able. There are reputations at stake which can well do without the publicity and notoriety attendant on the contemporaneous reporting of a trial. In most cases much damage has already been done to a doctor s reputation by the reporting of the allegations of negligence even if ultimately he/she succeeds in defending the litigation. Furthermore in this type of litigation both parties engage in a risk taking exercise in a highly specialized area of personal injury claims which would involve heavy investment in the use of experts and with an uncertain outcome. A medical expert owes different obligations to the court and there is a greater degree of unpredictability in the outcome of that experts cross examination. Finally creative options can be obtained in mediation in medical negligence claims beyond money claims. Modifications and 14

15 standardizations of medical practice, establishment of future policy, focusing on future customer care are all results which can be obtained through mediation. 17. Mediation as a flexible procedure provide therefore for the parties that win win result which is unattainable in a judicial determination. Colman J observed in Cable and Wireless plc v IBM United Kingdom Limited [2003] EWHC 316 Mediation as a tool for dispute resolution is not designed to achieve solutions which reflect the precise legal rights and obligations of the parties but rather solutions which are mutually commercially acceptable at the time of the mediation. 18. In the Court annexed mediation programme I am aware that medical negligence claims were settled in mediation. I am also aware that attorneys in this matter have been exposed to mediation at varying levels and well placed to advise their clients on the utility of this procedure. Medical institutions will do well to establish mediation units to deal with customer complaints which may avert litigation and will establish a reputation of customer oriented service. The submission to mediation is not a sign of weakness; it is not an admission of liability. It is a more efficient use of the litigants resources and is conducted within the context of the rules which encourages parties to settle claims through the use of alternative dispute resolution. Quite apart from these rules the Court can order parties to mediate pursuant to section 14 of the Mediation Act. 19. It is a pity that this has not yet been explored by the parties in this case. However these two aspects highlight the various levels of participation available to the litigant under the rules to move matters forward to a resolution. 20. Returning to the Claimant s application firstly for relief from sanction, if I examine this application holistically, this is a claim in a highly specialized area of law where expert evidence is necessary to assist the court to determine questions of breach and causation. There was no trial date set. The application for relief from sanction was made about one month prior to a case management conference on 23 rd March 15

16 2009. At that time the Claimants indicated that their witness statements would have been ready. The second Defendant had already had the benefit of one extension of time to file his witness statement. Ironically the reason for the extension to file the witness statement was to consider the list of documents which was filed by the Claimant out of time. Previous default by the Claimant occurred while the proceedings were governed under the former rules of Supreme Court and I have grave doubts as to whether that default can now be factored post conversion under rule 26.7 CPR. There is no evidence by the Defendants disputing the Claimant s evidence on this application and nothing to suggest they will be prejudiced by the grant of relief. If the application is refused that is the end of the matter as there is no evidence proffered against the Defendants. If the application is allowed the court must proceed to manage this claim in giving directions for exchanging witness statements, making allowance for procedural applications to be made one pre trial review and a trial both of which can be facilitated prior to the Easter break. If the applicant crosses the threshold the Court will have to weigh the prospect of committing further resources to managing this claim with the economy of simply ending it here. 21. The Relief from sanction application-witness statements. This application will be granted. I have done so as based on the factual context of this case the applicant has crossed the threshold and I am satisfied that the exercise of my discretion in the Claimant s favor having regard to the discretionary factors of 26.7 (4) furthers the overriding objective. In summary the reasons for granting this application are as follows: 22. Promptitude: The deadline for filing the witness statements was 17 th December I accept as a legitimate excuse the Claimant s inability to obtain expert evidence to support a claim of medical negligence. In South West Regional Health Authority v Harrilal Samdaye Action/Suit Number: C.A.CIV.60/2008 it is now quite settled that a medical practitioner is not obliged to achieve success in every case he treats. His 16

17 duty is to exercise reasonable skill and care in his treatment of the patient. See Deonarine v Ramlal, Civ. App. #28/2003 where Mendonça J A, applying the dictum of Mc Nair J in Bolam v Friern Hospital Management Committee [1957] 2 All E R 118, said: The principle has been restated over the years but perhaps the most often quoted formulation is the direction of Mc Nair J to the jury in Bolam v Friern Hospital Management Committee [1957] 2 All E R 118 which is now commonly referred to as the Bolam test. In that case Mc Nair J stated (at p ): How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge that by the conduct of the man on top of the Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient that he exercises the ordinary skill of an ordinary competent man exercising that particular art A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art Putting it the other way around a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. It is also settled that a hospital is liable for the negligent acts of its professional servants which occur in the course of their employment; see in particular, the judgment of Denning L.J. in Cassidy v Ministry of Health [1951] 1 All E R 574. Since the hospital authorities themselves do not treat patients, the applicable standard by which any negligence of its servants will be judged and for which the hospital authorities will be vicariously liable is the Bolam standard. Where, as in this 17

18 case, a claimant alleges that the negligence is due to the fault of the medical authority itself, the liability is direct. 23. To gather evidence to achieve this standard is therefore a serious obligation and not one to be taken lightly. The fact is that the Claimant had rest comfortably since 2007 on the assurance of obtaining her expert evidence of Dr. Waveny Charles. This witness however declined to participate further in these proceeding and that was confirmed on 11 th November 2009 less than a month before the deadline. One could say then that an application for an extension of time should have been filed at that stage by the Claimants. However, the uncontroverted evidence in this case is (a) that the evidence of Dr. Sawh would have been incomplete without the input and further testimony of a hematologist as he explained in his letter. Those reports were received on 18 th and 19 th January 2010; (b) that as can be inferred from paragraph 12 of the Nyree Alfonso Affidavit, and expressed in paragraph 6 of the supplemental affidavit without the evidence of the two witnesses forthcoming she simply would have had to abandon the case for her inability to surmount the Bolam test. Indeed it would appear that had the Claimant made an application for an extension of time simpliciter when Dr Charles abandoned the Claimant no assurances could be made to the court as to when any expert evidence would be forthcoming until new experts were retained. 24. The application was made less than a month after receiving the reports on 2 nd February 2010 but more significantly more than a month before the next CMC. I am unable to find a note on the file to suggest that the Master gave leave on 19 th January for the filing of this application. However I note that on that occasion indulgences were granted to both the Defendants to extend time to file their witness statements and to file supplemental bundles. 25. In the context of those facts the application was made promptly. Indeed in my view that application could have been dealt with consensually long before the 23 rd March 18

19 2010 so that matters could have progressed to further management of the evidence and the issues to be tried. 26. Good explanation Some of this has already been stated in my reasons that the application was prompt I accept that (a) without this new evidence the Claimant would have abandoned the claim (b) it would have been futile to file a witness statement on behalf of the Claimant alone (c) I accept as a matter of logic, prudence and common sense that consultation with new experts was required before this application could have been made and this cumulatively accounted for the breach of the deadline. This is not an explanation which smacks of laissez faire. It appeared to me that the Claimant was about to pull the plug on the litigation until she obtained the fresh medical evidence. 27. Intention Again I accept that there was no intention to defy the Court s orders. It is in my view a distinction between knowledge that the deadline has passed and an intention to breach the order. The Claimant cannot be criticized for adopting the course of action based on the advice by her counsel in obtaining the other medical reports before venturing to file the wrong statement. 28. General compliance This has caused me the most anxiety having regard to the procedural history of this matter and the delay already in prosecuting the matter. However, I am of the view that 26.7 (3) (c) CPR in converted cases 8 must be read prospectively that is to consider compliance after proceedings have been brought under the new rules. To do otherwise would be to implicitly impose a penalty or fetter on a party in the prosecution of litigation when none existed. Indeed if that was not the case, then any party in breach of any pre CPR rule or direction would be automatically disentitled to seek relief from sanctions when the matter is converted. In fact under the old rules there were procedures available to deal with delay one such 19

20 opportunity arose at the hearing of the order 3 rule 6 application but the application was unopposed. A construction that 26.7(3) (c) applies to pre CPR rules would render that rule retrospective in operation. In Yew Bon Tew v Kenderan Bas Mara Lord Brightman stated: There is a common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws or creates a new obligation or imposes a new duty, or attaches a new disability in regard to events already past. Hence to construe this rule to apply to pre CPR conduct will give rise to a new disability under the CPR where in light of a prior breach the litigant is automatically disentitled to obtain relief. Such a construction defeats the rationale for providing for a relief from sanction provisions in the new rules. At the very least under the common law a person is not to be penalised except under clear law. See Benion on Statutory Interpretation 5 th ed p 825. The entire pre CPR regime litigation is conducted without thought of a possible consequence of default generally being taken into account unless within the context of an application to dismiss for want of prosecution or an extension of time or any such procedural application made under the old rules. 29. Relief from Sanction- list of documents 30. Promptitude For the reasons already explained the application was made promptly. I note as well that the lists were already filed. 8 Cases filed under the Rules of Supreme Court (1975) to which the new rules applied by notice or order issued under Part 80 CPR 20

21 31. Good explanation This court is not unsympathetic to the attorney s illness in the family. I am surprised that attorneys themselves could not deal with this matter consensually having regard to the personal difficulty of the attorney. 32. Intentionality does not arise having regard to the explanation proffered. 33. Both applications for relief from sanctions therefore cross the threshold. In considering the rule 26.7 (4) CPR factors I am of the view that my discretion should be exercised in favour of granting relief for the following reasons: 34. Blameworthiness of party/attorney. The failure to comply in filing the witness statements and list of documents was due to external factors beyond the control of either the attorney at law or the lay client. With regard to the witness statements I have explained the circumstances beyond the control of the attorney and client. With regard to the explanation in relation to the illness in the attorney s family, illness can strike at any moment and it produces a mixed bag of unexpected results and consequences which can upset well laid plans. 35. Can the breach be remedied within a reasonable time It appears from the Claimant s affidavits that the breach could have been remedied since March 2010 in relation to the witness statements. The list of documents has already been filed. 36. Impact on trial date There is no trial date as yet. It falls to this Court to manage this case to a certain trial date. 37. Interest of administration of justice: There is no affidavit setting out any prejudice to the Defendants if relief is granted. It is accepted that protracted litigation alone can be evidence of prejudice. The Court 21

22 must allocate a fair share of its resources to each claim and certainly a litigant cannot be allowed to overstay his welcome. However in balancing the respective rights and risks of the parties I can see no prejudice to granting relief but protecting the Defendants by an appropriate unless order and order for costs. In this way I would have kept the parties on an equal footing. Imposing short deadlines with unless orders are a proportional response to the breach. This is now the first attempt by me to manage this claim, it previously having been managed by the Master and it is now this Court s duty to make the appropriate directions to drive this case along the litigation path. 38. Expert evidence I am of the view that the proposed witnesses are expert witnesses and permission must be granted at this stage to use their evidence at the trial. These are all medical practitioners volunteering their opinion on the medical records and history of the deceased. They have no personal knowledge of the facts of this case. Their views necessarily are opinion evidence and further evidence of experts. Their evidence is critical for the court to appreciate the claim of the Claimant. There is no good reason not to grant permission to these witnesses to give their expert testimony and medical reports. 39. Conclusion In granting this application I have not detracted nor sought to detract from the philosophy of the rules or the discipline that ought to be inculcated in civil litigation. It is against the special circumstances of a highly specialised area of law of medical negligence that this Claimant at the last moment was left in the lurch by her medial witnesses. To shut this case out by taking a pedantic approach to times and minutiae of diaries would in the context of this case be inappropriate and disproportionate to the stage of the proceedings. 40. It is now my duty to manage this case. I do so now by making the following orders: 22

23 a) The Claimant be and is hereby granted relief from automatic sanctions for failing to file and exchange her witness statements and file and serve her list of documents in compliance with the Order of Master Paray Durity dated the 20 th day of July b) The time is extended for the Claimant to file and exchange her witness statements to on or before the 30 th day of December In default the Claim stands dismissed. c) The time is extended for the filing of the Claimant s lists of documents to the 16 th day of December 2009 and for service of same to on or before the 30 th day of December d) Permission is granted to the Claimant to rely on the expert evidence and reports of Dr. Phyllis Pitt Millerm, Dr. Altheia Jone Leconte and Dr. Lal Sawh. e) Permission is granted to the Claimant to file and serve a supplemental list of documents to on or before the 30 th day of December 2011 disclosing and providing copies of the reports of the medical experts. In default the Claimant shall not rely or use copies of the reports at the Trial. f) All parties are to file and serve their procedural applications on or before the 30 th day of January g) The parties are to make attempts to mediate this Claim and to report to the Court on the 15 th day of January 2011 by direct correspondence to the Court s Judicial Support Officer and by to srampadarath@ttlawcourts.org on the results of their discussions or agreement to mediate. 23

24 h) The Claimant do pay to the Defendants the cost of this application to be assessed by this Court in default of agreement. i) A Pre Trial Review is fixed for the 28 th day of February 2012 at 10:15am in Court Room POS24, Hall of Justice, Knox Street, Port of Spain. j) A Trial Window will be scheduled in the months of March or April 2012 to be confirmed by the parties with the Court s Judicial Support Officer on or before the 30 th day of December k) The Claimant do pay to the Defendants their costs of the application to be assessed in default of agreement. l) Leave to appeal is granted to the Defendants. Dated this 19 th December 2011 Vasheist Kokaram Judge 24