IN THE HIGH COURT OF JUSTICE BETWEEN AND RULING. that he was a prison officer and that on the 17 th June, 2006, he reported for duty at the

Transcription

1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Cv. 2010/2501 BETWEEN ELIAS ALEXANDER Claimant AND ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER APPEARANCES Ms. A. Girwar for the Claimant. Ms. K Fournillier for the Defendant. RULING 1. By this Action instituted on 17 th June, 2010, the Claimant sought damages against the Attorney General for trespass to the person, assault and battery, breach of statutory duty, and aggravated and/or exemplary damages. 2. In his Claim Form, the Claimant itemized briefly the key factors of his Claim. He alleged that he was a prison officer and that on the 17 th June, 2006, he reported for duty at the Maximum Security Prison and alleged that he was recklessly assaulted by an inmate of the prison. The Claim Form was signed by the Claimant, who made a certificate of truth, as well a certificate as to the value of the claim. No documents were attached to the Claim Form. Page 1 of 12

2 3. The Claim Form was not accompanied by a Statement of Case. The latter was filed in an amended form on 12 th August, The Defendant filed a appearance on 7 th October, 2010 indicating the intention of the Attorney General to resist the Claim. The Appearance filed on behalf of the Attorney General indicated that the Claim Form and the Statement of Case were served on 17 th August, The defence of the Attorney General ought to have been served by 28 th September, No defence was filed on behalf of the Attorney General. Instead on the 18 th November, 2010 (more than one month after time had expired for the filing of the defence) Learned Attorneys-at-Law for the Attorney General filed a Notice of Application seeking an order that the Claim be struck out as an abuse of the Court s process. In the alternative the Defendant sought an extension of time for the filing of a defence. In this application Learned Counsel did not seek an order for relief from sanctions, but must have been aware that at that time the regime of implied sanctions pervaded the civil jurisdiction of the High Court. 6. By 2 nd February, 2011, learned attorneys for the Attorney General experienced an unexplained change of heart and filed a Notice indicating their intention to withdraw the November Notice of Application. On the same day, learned attorneys for the Attorney General filed a second application departing substantially from the original orders sought. With the second bite of the cherry, they now sought relief from sanctions. Orders were sought striking the Claim Form and Statement of Case on different grounds that is to say: Page 2 of 12

3 The Claimant s failure to comply with Part 8 of the Civil Proceedings Rules of The Claimant s failure to disclose grounds for bringing the Claim. The second notice of Application appeared to abandon the earlier contention that the Claim was statute-barred. 7. On the following day this matter came up for the first time. On this occasion, the Court granted leave to the both parties to file submissions in support of and in opposition to the Defendant s Notice of Application Several applications were made seeking extensions of time and on 29 th September, 2011, this Court, having considered the defendant s application for relief from sanctions refused the Defendant the relief sought on the grounds inter alia that the Defendant had not acted promptly in seeking relief from sanctions and had failed to provide any good reason for their failure to file a defence. Because sanctions were imposed, it was unnecessary and indeed not possible to go behind the sanctions to consider the Defendant s application to strike. 9. On the 29 th September, 2012, the Court also granted permission to the Claimant to apply for judgment in default of defence. There had been no representation for the Defendant/Attorney General on this day. There was no communication, no explanation, no representation with no other attorney holding for the assigned Counsel. 1 Second Notice of Application filed on 2 nd February, Page 3 of 12

4 10. The application for judgment in default came up for hearing on 9 th December, On this occasion, learned counsel for the Attorney General appeared. She vehemently protested the order which had been made in her absence in September, Learned attorney, Ms. Fournillier referred to the Order which had been made by this Court on 29 th September, 2011 and which had been signed by the Registrar. The Order, though indicating that the sanctions were imposed fell short of dismissing the application to strike. It was my view therefore that there was no clear indication that the Defendant s application to strike had been dismissed. Moreover between the 29 th September and the 9 th December, the concept of the implied sanction had been jettisoned by the Privy Council. Accordingly, with the consent of learned attorney-at-law for the Claimant, I directed that further submissions be made in these proceedings. 12. Submissions were filed on behalf of both parties. Surprisingly, learned attorneys for the Defendant filed an affidavit on 25 th January, 2012 sworn by Sean Julien. This affidavit was not only filed without the Court s permission, but without any application on the part of the Defendant to file further affidavits. Learned attorneys therefore arrogated unto themselves the power to grant themselves permission to file this affidavit. The Issues: i. Whether the Claim and Statement of Case ought to be struck out. ii. Whether the Defendant is entitled to an extension of time for the Defence Page 4 of 12

5 iii. Whether the Claimant is entitled to judgment in default of Defence LAW 1. Part 8.2 of the Civil Proceedings Rules 1998 provides: (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 provision of Part 8.6, 8.7 and are set out below: 8.6. (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 for the case If the amount of damages claimed is not specified the Claim must include a certificate that the damages claimed exceed or are likely to exceed $15, (1) The claimant must certify on the claim form that he believes that the contents are true and that he is entitled to the remedy claimed. 3. Part identifies special requirements for personal injuries claim. 2 Civil Proceedings Rules Civil Proceedings Rules Page 5 of 12

6 Part 8.2 (2) 4 specifies when the Court may grant permission: (2) The Court may only give permission if it is satisfied that: (a) (b) The Claim must be issued as a matter of urgency A relevant limitation period is about to expire and the Claimant has only obtained legal advice within the seven days prior to the date that he wishes to file his Claim. 3. An application for permission 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. A copy of the order must be served with the Claim Form. 4. If a claim is issued with neither the Statement of Case nor the permission of the Court, the Claimant is not the Claim is not authorized to take any further steps until permission is given see The Caribbean Civil Court Practice 2011 page In St. Kitts, Nevis, Anguilla National Bank Ltd v Caribbean 6/49 Ltd. Civ. Appeal No. 6 of 2002, the Court of Appeal considered whether an application to strike on the ground of abuse of process acts as a stay of proceedings. In that case 5, the Claimants filed a second action under the CPR while an identical action under the old rules remained alive. Time limited for filing of the defence to the second action expired on 21 st February, The 4 Ibid 5 St. Kitts, Nevis, Anguilla National Bank Ltd. v Caribbean 6/49 Ltd. Civ. App. 6 of Page 6 of 12

7 defendant filed an application to strike on the 20 th February, By late February, 2002, the Claimant sought and obtained an over the counter judgment in default of defence. 6. At first instance 6, the learned judge refused to set aside the default judgment holding that an application to strike did not operate as a stay of the requirement to file the defence. The Court of Appeal disagreed holding that the application to strike should be heard before the application for a default judgment was processed 7 7. In Attorney General v Keron Matthews 8, their Lordships considered and decided against the concept of the implied sanction. At paragraph 14, Lord Dyson said: a defence can be filed without the permission of the Court after the time for filing has expired. If the Claimant does nothing or waives late service, the defence stands and no question of sanction arises Then at paragraph 16. if a defendant fails to file a defence within the prescribed period and does not apply for an extension of time, he is at risk of a request by the claimant that judgment in default should be entered in his favour. The rules do make provision for what the parties may do if the defendant fails to file a defence rule 12.4 provides that if the period for filing a defence has 6 Ibid 7 Civ. Appeal No. 6 of 2002 St. Kitts, Nevis, Anguilla National Bank v Caribbean per Barrow J.A. at paragraph [26]. 8 Attorney General v Keron Matthews [2011] U.K.P.C. 38 Page 7 of 12

8 expired and a defence has not been served, the court must enter judgment if requested to do so by the claimant 9 Lord Dyson referred to the overriding objective at paragraph 19 and had this to say at paragraph [20] Nevertheless if the language of the rules admits of only one interpretation, it must be given effect 10 REASONING AND DECISION 8. The very clear ruling of the Court of Appeal of the Eastern Caribbean is that an application to strike ought to be heard before an application for judgment in default The Court considered whether this ruling has survived the equally clear ruling of their Lordships in the Attorney General v Keron Matthews 12, that the court must enter judgment of requested to do so by the claimant 13 where the time for filing a defence has expired. In my view the ruling in St. Kitts Nevis Anguilla National Banker v Caribbean 6/49 Ltd. is not affected by the decision on Attorney General v Keron Matthews since the effect of an application to strike, did not arise in Attorney General v Keron Matthews. 9 Attorney General v Keron Matthews [2011] U.K.P.C Ibid 11 St. Kitts, Nevis, Anguilla National Bank v Caribbean 6/49 Ltd. Civ App. 5 of 2002 per Barrow J.A. at paragraph Attorney General V Keron Matthews [2011] U.K.P.C Ibid paragraph 16. Page 8 of 12

9 10. I turn therefore to consider whether the claim ought to be struck under Part 26.2 (1)(a) 14 for having failed to comply with a rule in particular Part In my view this rule 16 is unambiguous in prohibiting the filing of a claim form without the Statement of Case unless one of the exceptions obtains. The prohibition is strengthened by a mandatory direction to the Court as to the circumstances in which permission may be given. This rule 8.2(2) 17 provides: The court may only give permission 11. In my view this rule clearly prohibits the court from granting permission unless one of two situations exist, neither of which is relevant to this Claim. It is my view therefore that the claim may survive only if the Claimant has satisfied Part 8.2(1) (b), that is to say that the Claim Form contains information required by rules 8.6, 8.7 and 8.8. These rules require a certificate of truth 18, a certificate as to value 19 and information setting out all facts on which the Claimant relies and with annexus of documents which the Claimant considers necessary for his case The Court considered the claim form filed on 17 th June, Both the certificate of truth and the certificate of value appeared on this document, thus satisfying Part 8.7 and 8.8. The claim form contained as well a statement of the facts. It was however deficient 14 Part 26.2 of the Civil Proceedings Rules. 15 Part 8.2 of the Civil Proceedings Rules. 16 Ibid. 17 Part 8.2(2) Civil Proceedings Rules. 18 Part Part Part 8.6. Page 9 of 12

10 in failing to annex any document on which the claimant wished to rely and in particular any medical reports in support of the claim for personal injuries It seemed harsh to turn the Claimant away from the seat of justice for a transgression so apparently minor and the court considered whether the omission could be cured by the application of the overriding objective. However the very clear ruling of their Lordships in Attorney General v Matthews 22 is that if the language of the rules admits of only one interpretation it must be given effect to. If the Claimant wished to file the claim form without a statement of case, his options were to satisfy the requirements of Part 8.2(1)(b) 23 or to obtain the Court s permission. His having failed in respect of both these requirements, the Court has no option but to strike pursuant to Part 26.2(1)(a) The Claim as drafted also offends Part 26.2(1)(c) 25 in that the pleaded facts do not disclose grounds for bringing the claim against the Attorney General. It borders on ludicrous to suggest that an inmate of the Maximum Security Prison is a servant or agent of the State. Accordingly the claim for damages for assault, battery and trespass to the person ought also to be struck by virtue of Part 26.2(1)(c) This makes it largely unnecessary for the Court to consider the defendants application to extend time for the filing of the defence, except in so far as it impacts on the question of costs. 21 See the Statement of Case paragraph Attorney General v Keron Matthews [2011] U.K.P.C Civil Proceedings Rules Civil Proceedings Rules Civil Proceedings Rules Ibid. Page 10 of 12

11 16. On 29 th September, 2012, the Court gave effect to an implied sanction having regard to the defendant s failure to file its defence. The effect of this sanction would have been to prevent the defendant from filing a defence. Following the Court s order on 29 th September, 2012, there was no application for relief from sanctions and there was no appeal. 17. The order remained intact for some two months, before learned attorney appeared and voiced her objection. The order was written up and signed by the Registrar. Although the concept of the implied sanction no longer exists following the authority of Attorney General v Keron Matthews 27, this Court is functus officio in respect of the Order. The Order therefore cannot now be amended by this Court unless there is a clerical error, of which there is none. Accordingly the sanction against the defendant remains and the application to extend time for the filing of a defence is refused. 18. Even if I were wrong in this regard, the defendant would have failed altogether to provide any good reason for delay in filing its defence. One reason relied on was that learned attorney-at-law had proceeded on vacation. Another was that attorney-at-law was engaged in a matter of public importance. The facts that attorneys have proceeded on vacation or are engaged in other matters really provide no good reason for delay. If this occurs another attorney-at-law should be appointed to hold in the proceedings. 19. The conduct of the defence generally has also been perforated with indecision and a general lack of diligence. Accordingly on 18 th November, 2010, one month after time had expired, learned attorneys applied for an order to strike. Then after the passage of 27 Attorney General v Keron Matthews [2011]U.K.P.C. 38 Page 11 of 12

12 some three months, learned attorneys with no apology and for no apparent reason altered their strategy, withdrew the Notice of Application and filed a fresh one. 20. The conduct of the defence in this matter has had the effect of unnecessarily spinning out these proceedings and delaying their ultimate disposition. Accordingly in my view although the defendants are the successful parties, it would be appropriate to exercise my discretion and withhold an order for costs, in their favour. ORDER 1. The Claim Form filed on 17 th June, 2010 is hereby struck out pursuant to Part 26(2) (a) and (c). The Claim is dismissed. 2. Parties to bear their own costs. Dated this 16 th day of February, M. Dean-Armorer Judge Page 12 of 12