IN THE HIGH COURT OF JUSTICE BETWEEN ROLAND JAMES AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN ROLAND JAMES CLAIMANT AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO DEFENDANT Before the Honourable Mr. Justice Ronnie Boodoosingh Appearances: Mr G. Ramdeen instructed by Mr V. Debideen for the Claimant Mr R. Hector instructed by Ms A. Ramroop for the Defendant Dated: 12 February 2014 RULING ON APPLICATION TO EXTEND TIME TO FILE DEFENCE Page 1 of 10

2 1. This is a claim for unlawful arrest and false imprisonment made by the claimant against the defendant. At the crux of the matter was the detention of the claimant by the police following a report received by them of persons stealing steel rods in the Diego Martin area. 2. A pre-action protocol letter was sent to the defendant dated 19 July 2013 and served on 23 July There was no response to this letter. The claim was filed on 4 September The claim was served on the defendant on 4 September Time began to run for the filing of the Defence on 16 September 2013 with the start of the new law term. The time for filing the Defence would have expired on or about 28 October An appearance was entered by the defendant on 11 November 2013 by Ms Andella Ramroop, attorney-at-law. 5. Two applications were then filed in this claim. There was the claimant s application filed on 14 November 2013 for judgment to be entered in default of a defence being filed supported by the affidavit of Varun Debideen, attorney-at-law. That same day, the defendant filed an application for an extension of time to file its Defence supported by an affidavit of Ms Ramroop. Ms Ramroop filed a further affidavit on 6 January 2014 in Page 2 of 10

3 opposition to the claimant s application to enter judgment. In so doing she annexed a draft Defence in the matter. Mr Debideen filed additional affidavits (in the same terms) on 15 January 2014 in support of the claimant s application and opposing the defendant s application to extend time. 6. In these circumstances, I considered it appropriate, logically, to deal with the defendant s application for an extension of time to file its Defence first since if the defendant was successful in that application it would render the claimant s application for judgment in default of no consequence. I have also considered it appropriate to take account of all of the evidence filed by the respective attorneys in both applications together to get the full picture of the matter. The assertions are essentially the same except for the draft Defence attached to the defendant s affidavit in opposition to the claimant s application. 7. The Civil Proceedings Rules (CPR) provides for what follows if a defendant fails to file a defence within the prescribed period. As has been settled following the judgment of the Privy Council in the Attorney General v Keron Matthews [2011] UKPC 38, no sanction is imposed by the rules for failure to file a defence in time. A defence can be filed without the court s permission after the time for filing has expired. If the claimant does nothing or waives late service, the defence stands: see paragraph 14 of Matthews. Rule 10.3(5) provides that the defendant may apply for an extension of time to file the defence. The parties may agree once to extend the period for filing the defence up to 3 months from the date of service of the claim. Any further extensions may only be made Page 3 of 10

4 by court order: see rules 10.3(6) and (8). Where the period for filing a defence has expired, however, and the defendant does not apply for an extension of time, he is at risk of judgment in default being entered in the claimant s favour. Rule 12.4 provides that, if the period for filing a defence has expired and a defence has not been served, the court must enter judgment if requested to do so by the claimant. In claims against the State, the claimant must get the permission of the court to enter judgment: rule 12.2(2). 8. This application brings into sharp focus the apparent anomaly in the CPR about how applications to extend time for the filing of a defence are to be treated compared to applications to set aside judgments obtained in default of a defence being filed. In exercising its discretion whether to grant an extension of time, the court will take into account all the relevant factors of the case and the overriding objective of the rules. Relevant considerations may be some of the factors set out in Part 26.7 minus the stringent mandatory preconditions under that rule. It is clear from Matthews, however, that the Part 26.7 conditions are not to be imported into rules that impose no sanction or makes no provision for such conditions. 9. In the exercise of the court s discretion the court may consider what is the reason or explanation for the failure to file the defence in time. But other factors too are important. For example, is there any real prejudice caused to the claimant by allowing the extension? Would the interests of justice be served by denying the application? The relevant rule does not give any criteria to consider. The discretion is therefore a wide one. Page 4 of 10

5 10. Under Part 13.3 the court may set aside judgment if (i) the defendant has a realistic prospect of success in the claim and (ii) the defendant has acted as soon as reasonably practicable when he found out that judgment had been entered against him. If a defendant satisfies these two conditions, his application to set aside the judgment should succeed: paragraph 18 Matthews. There is no good reason or other such requirement for an applicant to satisfy. The requirements relate to the quality of the defence and acting promptly after notice of the judgment has been had. 11. It appears, therefore, that it would generally be more onerous for a defendant to show circumstances to be granted an extension of time to file a defence than it is to set aside a default judgment. This is at the core of the apparent anomaly contained in the Rules. A party who acts before default judgment is obtained appears to be in a more precarious position than one who sits back and awaits judgment to be entered and then acts promptly to set it aside because he has a good defence/realistic prospect of success. Such a person may have a good defence but not a good reason for not filing the Defence on time. This is a matter for the Rules Committee to reconcile. However, it must also impact on how the court treats with the application for the extension of time. The court has to look at the Rules as a whole and give the Rules a sensible and purposive construction. 12. There are additional factors which are of significance here. In proceedings against the State the time for serving the Defence is 42 days after the service of the claim form and statement of case. As noted above, Part 10.3 (6), (7), (8) allows the parties to extend the Page 5 of 10

6 time for filing the defence up to 3 months. Only one such extension agreement is permitted. The CPR also requires as the overriding objective that cases be dealt with justly. 13. Since the court is exercising a wide discretion in the context that the rule on extensions of time does not set out criteria to be considered, the court has to consider all of the circumstances of the application of which the reason for the failure is but one. The explanation must come in the form of evidence from the defaulting party. I therefore come to Ms Ramroop s affidavit. 14. Having accepted that service took place on 4 September 2013 Ms Ramroop, on 14 November 2013, deposes as follows: 4. Due to administrative delays, I received conduct of the instant High Court Action on or about the 8 th day of November 2013 and an appearance was entered on behalf of the Defendant on 11 th November, I wrote a memorandum dated 11 th November, 2013 to the Police Legal Unit wherein I requested instructions in relation to the instant matter Contrary to Part 58.4 of the CPR, the Claimant had not included sufficient details in his Statement of Case so as to enable the Defendant to identify the Police Officers allegedly involved in this incident and as such, the Defendant requires sufficient time to be able to identify and obtain instructions from same. Page 6 of 10

7 In her affidavit of 6 January 2014 Ms Ramroop deposed: 4. Due to an administrative error, I did not receive conduct of this matter until Friday 8 th November, She went on to set out that she caused an appearance to be entered; she wrote the Police Legal Unit; on 14 November 2013 the defendant applied for an extension of time to file the Defence; on 9 December 2013 she received a copy of the extract with the names of the officers; the officers attended the office of Chief State Solicitor on 16 December 2013; out of these instructions a draft Defence has been prepared. 17. It is clear that since receiving conduct of the matter, the State attorney has acted with commendable alacrity in advancing the State s interest. This is itself a relevant matter. There, however, are two other matters to consider. 18. First, the defendant did not seek to contact the claimant s attorney to seek an extension of time to file their defence, which they were entitled to do. While they were not obligated to do so, the failure to first seek the cooperation of the other side in agreeing to an extension is unfortunate. The second matter concerns the explanation given for not filing Page 7 of 10

8 the Defence before 28 October What the defendant says is what was done from the time Ms Ramroop was given conduct of the matter. No real explanation has been advanced at all as to why a Defence was not filed within the prescribed time. Ms Ramroop simply says due to administrative delays and administrative error she did not get conduct of the claim until 8 November She then sets out what she did to get the Defendant s position advanced. 19. Ms Ramroop may have advised on what were these delays or error or what was done or not done or who failed to do what. In fairness to the attorney, she probably has no instructions on what occurred before. Otherwise it would have been advanced. 20. Ordinarily, such a sketchy assertion of administrative bungling will not be a sufficient reason for the court to exercise its discretion in the defendant s favour. But while not the best of reasons, an explanation has still been advanced. The State apparatus is a wieldy institution about which the courts have commented on many times on the need for a proper system to be implemented to deal with claims when made. Administrative error should not occur and ordinarily this will not gain the court s understanding. In exercising its discretion, however, the court also has to weigh competing factors. In some cases the reason advanced for failing to file the Defence, such as where the delay is very long, will be of greater importance. In other cases, the overall circumstances of the case may produce other factors to be given more weight. The context of the rules as a whole is also important. Page 8 of 10

9 21. Looking at all the factors and in the context of the overriding objective, the circumstances of this case make it both practical and just to allow the defendant s application. As noted above the State attorney has acted with alacrity since getting the conduct of the matter. The delay was not a long one to when the application was made (about 2 weeks). A draft defence has already been prepared. The draft defence is not a bare denial and advances grounds of reasonable and probable cause in response to the claimant s allegations. This is the defendant s only default. 22. In dealing with this case justly, an extension in my view would cause no prejudice to the claimant, whereas refusal of an extension would deprive the defendant of the opportunity to defend the claim. The rules require efficiency, but do not demand shutting out a party for a first time default. The courts often make allowances for the slow pace of the approval of legal aid applications to give but one example. 23. The court has to consider the application of limited resources and the efficient disposition of claims in keeping with the overriding objective. I am also mindful that the effect of denying the application for an extension may be to effectively shut the door on the defendant. This would not be a proportionate exercise of the court s discretion. To grant the extension does not condone flouting of the rules. The court always has the power to protect its process from abuse and will not hesitate to do so in an appropriate case. Page 9 of 10

10 24. The court has to consider an extension of time application in the context of other rules which provide for setting aside a default judgment and the limited criteria there set out. The observations of the Privy Council in Matthews are also particularly apt. The defendant could have proceeded to file its Defence and await any objection by the claimant. Or the defendant could simply wait until default judgment has been obtained and then apply to set side. To impose overly stringent requirements to obtain an extension of time would in effect be to punish a defendant who chooses to act proactively to get an extension and reward a defendant who chooses to sit back and await the claimant to take up judgment and then say well here is my Defence and it is a good one without having to give an explanation for its delay previously. 25. In the circumstances of this case I would therefore allow the defendant s application to extend the time for filing of its defence. The defence must be filed within 14 days of this order. In default the claimant is granted permission to have judgment entered against the defendant. The defendant is in default so it must pay the costs of this application to the claimant assessed in the sum of $3, The application for judgment in default is accordingly dismissed with no order as to costs. Ronnie Boodoosingh Judge Page 10 of 10