IN THE COURT OF APPEAL BETWEEN REAL TIME SYSTEMS LIMITED APPELLANT/CLAIMANT AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Civil Appeal No. 238 of 2011 IN THE COURT OF APPEAL BETWEEN REAL TIME SYSTEMS LIMITED APPELLANT/CLAIMANT AND RENRAW INVESTMENTS LIMITED, CCAM AND COMPANY LIMITED, AND AUSTIN JACK WARNER also known as AUSTIN WARNER Trading as DR. JOAO HAVELANGE CENTRE OF EXCELLENCE RESPONDENT/DEFENDANT PANEL: P. JAMADAR, J.A. A. YORKE-SOO HON, J.A N. BEREAUX, J.A. APPEARANCES: Mr. Neil Bisnath instructed by Ms. Lydia Mendonca for the Appellant. Mr. William McCormick QC and Mr. Om Lalla instructed by Mr. Derek Balliram for the Respondent. JUDGMENT OF JAMADAR, J.A. DATE OF DELIVERY: 20 th December, Page 1 of 15

2 JUDGMENT Introduction 1. The detailed context for this appeal is to be found in the introductory paragraphs (1 17) of the judgment of the trial judge (D. Rampersad J). In short, there were two applications before the trial judge: the first was the appellant s application filed on the 5 th May, 2010, for summary judgment; and the second was the respondent s application filed on the 10 th August, 2010, to strike out the claim form and statement of case. 2. The judge in his analysis stated the following with respect to the appellant s claims 1 : 42. Material facts in relation to the alleged loan are not before this court on the statement of case and this court is of the view that, in the circumstances, it is unjust, oppressive and prejudicial to the defendants to allow this case to proceed under the statement of case as pleaded. In particular, when it comes to preparation for trial and the preparation of witness statements, the claimant s case would only then become apparent when its own witness statement(s) have been filed by which time it would be too late for the defendant to address the issue properly in its own witness statement(s) since it may not have pleaded matters which it wishes to raise in witness statements. 3. The judge also found that in the circumstances of this case, the appellant s pre-action protocol letter (of the 17 th March, 2010) did not conform with paragraph 1.2 of Appendix A to the Practice Direction on pre-action protocols for claims for a specified sum of money. However, he did not consider this of its own, (to) be sufficient to justify a striking out of the claim though (it was) a factor to be taken into account The judge was also clearly of the view that less than the bare minimum of facts had been stated in the statement of case. 3 And he was of the view that the true nature of the 1 See paragraph 42 of the judgment. 2 See paragraph 47 of the judgment. 3 See paragraph 48 of the judgment. Page 2 of 15

3 transaction would have to (be) fully set out to establish the legality of this alleged loan transaction, which together with the other twenty-three claims amounted to loans of substantial sums of monies amounting in total to a sum in excess of $28 million TT. 4 In these circumstances the judge opined that information such as the purposes for which the sums were borrowed and the factual trail leading up to the alleged loans, including whether the loan agreements were in writing or oral, who were the people involved in negotiating and concluding them and when were the agreements made, were all both relevant and necessary facts that should have been set out in the statement of case, if it was to permit a fair opportunity to the respondent to respond to it by way of defence In light of this analysis the judge concluded: 52. In those circumstances, this court is of the view that the statement of case does not comply with Part 8.6 of the CPR and the court further upholds the defendant s attorneys submission that a request for information pursuant to Part 35 would be premature at this stage since the sanction for non compliance with such a request is not exercisable before the time for serving of witness statements has expired nor less than forty-two days before the date fixed for trial see Part In any event, the claimant refused to respond positively to the defendant s written request made on 1 st April 2010 for details of the alleged loan so that in any event, no further information seems forthcoming. 53. As such the court strikes out the statement of case pursuant to Part 26.2 of the CPR. Consequently, the claimant s application for summary judgment would be dismissed and the court would invite submissions on the appropriate order for costs and the manner of assessment thereof. Disposition 6. I consider that the trial judge was wrong, in the circumstances of this case, to strike out the appellant s statement of case pursuant to Part 26.2 of the CPR, In my opinion the 4 See paragraphs 49 and 50 of the judgment. 5 See paragraphs 34, 35, and of the judgment. Page 3 of 15

4 judge fell into error in concluding that any request for particulars of the statement of case was premature at this stage, since an order for enforcement of such a request could not have been made (relying on Part 35, CPR, 1998). He therefore deprived himself of an order that was available to him to make, which could have facilitated the management of this case (and all of the other related ones) so as to further the overriding objective of the CPR, which is primarily to enable the court to deal with cases justly In my opinion, the judge having concluded that the statement of case inadequately set out all of the facts which ought to have been stated, ought to have first considered whether an appropriate order for further and better particulars of what was set out in the statement of case could have facilitated the disclosure of what was required to allow the appellant to continue pursuing its claim, and also to allow the respondent a fair opportunity to know the case it had to answer and be able to state all the facts necessary to admit, explain and/or dispute the claims made against it. 7 In these circumstances the appeal is allowed. The matter is remitted to the trial judge to consider whether an appropriate order for particulars of the statement of case can further the overriding objective, and if so, to formulate such an order and give the appropriate directions; and if not, to reconsider what is the appropriate order to make in the circumstances. Analysis 8. Part 8, Rule 8.6 requires a claimant to set out a short statement of all the facts on which he relies to establish his claim. This rule establishes an objective standard. It is not what a claimant wants (subjectively) to set out that is required; but rather it is what a claimant is required (objectively) to set out in order to establish his claim. However, even this formulation of a claimant s responsibility may be somewhat understated. Clearly fairness and justice require, that if a defendant is to be able to discharge the duty on him to also set out all of the facts on which he relies to dispute a claim made against him, 8 then a claimant must set out fully (without being prolix) 9 the facts which underpin his case so as to have the legitimate and relevant issues 6 See Rule 1.1, CPR, See Part 10, Rule 10.5, CPR, See Rule 10.5, CPR, See Rule 26.2(a), CPR, Page 4 of 15

5 that he reasonably knows will arise on his claim raised and responded to. Such an approach is consistent with the purpose and mandate for the use of pre-action protocols under the CPR, The thrust of the CPR, 1998 is towards litigation with full disclosure at the earliest opportunity and against tactical non-disclosure for the purposes of gaining strategic advantages in the conduct of litigation. 10. Moreover, the duty on both claimant and defendant to set out fully all facts which ought to be stated in the statement of case and defence respectively, is also so as to allow a judge to properly manage a matter in the context of the CPR, 1998, with its court driven mandate and the extensive case management powers and responsibilities bestowed on judicial officers. 10 Thus, a court is responsible for identifying the issues at an early stage, and deciding promptly which issues need full investigation and trial, and ensuring that no party gains an unfair advantage by reason of his failure to give full disclosure of all relevant facts. 11 The first two of these duties are given priority by placement in the order of responsibilities set out at Rule 25.1, CPR, Discharging this duty is only possible if both a claimant and a defendant set out fully all relevant facts in support of and in denial of a claim and of the issues that they reasonably know will likely arise. 11. In my judgment, and in agreement with the trial judge, the appellant did not fully comply with the requirements of Rule 8.6 in the circumstances of this case. 12. Books of precedents, such as Bullen and Leake and Jacob s Precedents of Pleadings, are only guides to assist practitioners, by pointing to what may be necessary to be set out to establish a claim or defence. Reliance on such precedents cannot be used as a basis to avoid the responsibilities that Rule 8.6 mandates and the entire CPR, 1998 demands. 13. Considering the appellant s case, in its narrowest context as set out in its statement of case, the following can be gleaned. 10 See Parts 1, 25, 26, 27 and 28, CPR, See Part 25, Rule 25.1(a), (b) and (m) respectively. Page 5 of 15

6 (i) On the 9 th, 16 th, 22 nd, and 23 rd October and on the 1 st November, 2007 five cheques were issued by the appellant, drawn in favour of Centre of excellence indoor facility in sums totaling TT$1,505, (ii) All of the cheques appear to have been paid on presentation, account payee. (iii) On the 17 th March, 2010 a pre-action letter was written on behalf of the appellant to the respondent demanding repayment of the said sum within 28 days, in default of which legal action was threatened for the recovery of same together with statutory interest at 12 percent. (iv) Proceedings were commenced on the 15 th April, (v) Copies of the cheques and the pre-action letter were attached to the proceedings. (vi) In both the statement of case and in the pre-action letter the appellant stated respectively, that the respondent: (i) agreed to repay this sum ($1,505,423.00) by 28 th February 2008 ; 12 and (ii) agreed (to) repay the said sum of $1,505, within a short period being the end of February 2008 as by then you would have received payment of monies due to you by FIFA and refused to repay it despite our clients verbal requests and promises by you so to do. 14. Clearly this is an action based on an alleged agreement between the parties to lend and to repay (by the end of February 2008) the claimed sums, and in which the sums were allegedly loaned but not repaid despite verbal requests for repayment and broken promises to do so. These are all material facts disclosed by the claimant in the two formal documents issued under the CPR, 1998 (the pre-action letter and statement of case). 15. What was not disclosed by the appellant in its statement of case, but known to it, were the following matters: (i) Prior to the action being commenced (on the 15 th April, 2010), and in reply to the preaction letter (of the 17 th March, 2010), the respondent wrote to the appellant on the 1 st April, 2010 requesting particulars of the loan as follows: 1. was the agreement in writing or oral; 12 See paragraph 3 of the statement of case. Page 6 of 15

7 2. when was it made and who were the parties; 3. if it was oral what were the specific terms and conditions of it. (ii) The appellant responded to the respondent s letter of the 1 st April, 2010 requesting particulars, in writing by letter dated 16 th April, 2010, in which it stated: We refer to yours of 1 st April, 2010 and advise that we have filed proceedings against your client. (This was not untrue as in fact the claim had been filed the day before, on the 15 th April, 2010). 16. What arises from these circumstances, is that the appellant must have known prior to filing its action that the respondent thought that the disclosures in the pre-action letter were inadequate for the purpose of eliciting a reply. In my opinion, the request for particulars of the alleged loan agreement prior to action were eminently reasonable given what the appellant had alleged in the pre-action letter and the requirements of clause 1.2 of the pre-action protocol with respect to clauses for a specified amount of money. 13 The respondent had 14 days to respond from the date of receiving the pre-action letter. Here the respondent replied within 16 days of the date of the letter. However, the appellant was clearly not prepared to give the respondent the particulars sought, but instead proceeded to file its action, with even less facts stated in the statement of case than were set out in the pre-action letter. And, despite knowing that the respondent had required further information before replying to the pre-action letter, the appellant deliberately chose not to include any of that information in its statement of case (or to otherwise supply the particulars sought). 17. In my opinion, if the trial judge was right in determining that prior to a defence being delivered the court has no power under the CPR, 1998 to compel a response to a request for reasonable particulars on a statement of case; then I agree that his order to strike out this statement of case (in the circumstances of this case) cannot be interfered with on appeal, it being an exercise of discretion (pursuant to Rule 26.2) which ought only to be interfered with if demonstrated to be plainly wrong See also page v of the Foreword to the CPR, 1998 by Chief Justice Sharma. 14 See Nelson J.A. in Fishermen and Friends of the Sea v EMA Civ. App. No. 106 of 2002; Jamadar, J.A. in The National Lotteries Control Board v Michael Deosaran Civ. App. No. 132 of 2007; Kangaloo, J.A. in Abzal Page 7 of 15

8 18. If there is no power to order particulars as aforesaid, then in this case it would not be unreasonable to hold that given the deficiencies in the appellant s statement of case it would be oppressive and prejudicial to the respondent to allow the case to proceed and to call upon the respondent to file a defence in answer. In these circumstances, I would agree that it could not be said that the trial judge was plainly wrong in striking out the case pursuant to Rule 26.2 as an abuse of process and for non-compliance with Part 8 of the CPR, 1998 especially since on the appellant s claim limitation has not run and the appellant can refile its action. 19. However, I do not agree that a trial judge cannot order particulars of a statement of case at the stage of proceedings before a defence is filed, or that the only recourse a court has is to either strike out the statement of case or allow it to stand with its deficiencies and call upon a defendant to file his defence to it. 20. In my judgment the arguments around Part 35 CPR, 1998 and the effect and applicability of Rule 35.3 to the circumstances of this case are misplaced. 21. As Chief Justice Sharma explained, the CPR, 1998 introduced a new civil procedural code governing the civil justice system. 15 And further, pointing to what is at the heart of the new rules 16 : The CPR are founded on a system of case flow management with active judicial case management. 17 Case management under the CPR is predicated upon a system which gives control and management of the pace and shaping of litigation to the courts removing it from the hands of the parties and their attorneys. Under the traditional adversarial system promoted by the 1975 Rules the pre-action process was exclusively occupied with preparation for the trial and was largely controlled by the parties Mohammed v Police Service Commission Civ. App. No. 53 of 2009; Lord Templeton in Ashmore v Corporation of Lloyd s HL [1992] 1 WLR 451F. See also, Sir Vincent Floissac in Dufour v Helenairs Corporation Ltd. (1996) 52 WIR See page iv. of the Foreword to the CPR, See page v of the Foreword to the CPR, See Parts 25 and 26, CPR, Page 8 of 15

9 with minimal court intervention. In fact, the final outcome of cases was shaped not during the pre-trial stages but at the trial itself primary because the decision-making process formed no material part of the pre-trail process. With the advent of the new system there has been a functional convergence of the pre-trial and trial process. The intense focus will be on the pre-trial stages since the adjudicative process begins as soon as the court assumes control over the case, which is at the case management conference. The case management conference, therefore, is at the heart of the new procedural code and is central to the success of the noble objectives embodied in Part I have quoted Chief Justice Sharma at length, because his introduction to the CPR, 1998 is a secondary interpretative source which assists in ascertaining both the intention and meaning of the Rules themselves. Clearly judicial officers now have the responsibility not just for managing the pace of litigation but also the shape of litigation. Hence the intense focus on the pre-trail stages. What then are the noble objectives embodied in Part 25? Simply put, the core objective is to further the overriding objective by actively managing cases, 18 which includes achieving, inter alia, the thirteen objectives listed in Rule 25.1, CPR, I have already identified that these include, the early identification of the issues and the sorting out of which issues need a full investigation and which ones can be dealt with summarily, 19 and ensuring that no party gain any unfair advantage by reason of a lack of full disclosure of all relevant facts In order to achieve the above, case management, which necessarily includes issue management, is central to achieving the Overriding Objective of the CPR, 1998, which is to deal with cases justly. 21 And, to achieve success in this task the court is given certain general wide ranging powers of management. These are listed at Rule 26.1, CPR, Among these powers are several which are directly related to identifying issues and determining whether they should 18 See Rule 25.1, CPR, See Rule 25.1 (a) and (b), CPR See Rule 25.1 (m), CPR, Rule 1.1, CPR, Page 9 of 15

10 be heard and if so when and how. And critical to these powers of management is the specific power to: take any other step, give any other direction or make any other order for the purpose of managing the case and furthering the overriding objective This specific power includes the power to order the delivery of further and better particulars on either a statement of case or a defence. And, in exercising this power the court can act on its own initiative, pursuant to its duty and power to actively manage cases. 23 Clearly this is a necessary power, because there will always be matters in which a pleading, whether a statement of case or a defence, is defective by reason of the inadequacy of facts disclosed, but not to the extent to make it an abuse of process or to constitute such a non-compliance with Parts 8 or 10 to reasonably or proportionally justify striking it out pursuant to Part In such cases a court ought to be able to manage the matter so as to properly identify the issues to be responded to, in say a defence, by making an appropriate order for the supplying and serving of further and better particulars as directed. In my opinion, a purposive reading and interpretation of the CPR, 1998 reveals this intention. 25. In this case it has been argued that by reason of Rule 35, any order compelling a request for information can only be made after the time for serving a witness statement, 24 and therefore could not be made and enforced before a defence has been filed (an argument which the trial judge upheld and which influenced his decision in this case). As already indicated, I disagree with this position. Part 35, CPR, Part 35, CPR, 1998 deals with requests for information when it is objectively apparent to a party and a court what are the matters in dispute in the proceedings. 25 Generally and in this case in particular, Part 35 in Trinidad and Tobago is significantly different from its apparent counterpart in England 26 and little help can be derived from any comparison between the two. 22 See Rule 26.1 (w), CPR, See Rule 25.1 generally and 25.1 (a), (g), (i), (j) and (m), CPR, 1998 in particular. 24 See Part 27, Rule 27.6 and Part 29, CPR, See Rule 35.1(1), CPR, Part 18 of the English Civil Procedure Rules. Page 10 of 15

11 27. In Trinidad and Tobago the words in dispute in the proceedings must be given the interpretation stated, because by operation of Rule 35.3 it is clear that this Part is only intended to operate after witness statements have been served and the parties know, both from the pleadings and the evidence to be used in the matter, what are the actual matters in dispute between them in the proceedings. In this understanding, Part 35 deals with what was under the RSC, 1975 generally dealt with by way of interrogatories. Prior to the delivery of a defence it is not possible to formally say what are the matters in dispute between the parties. Therefore Part 35 is inapplicable at this stage. 28. This interpretation is not only justified by the language of Part 35 in the context of the Part itself, but also in the larger context of where Part 35 is placed in the overall structure of the CPR, That is, it follows Parts 25, 26, 27 and Further, the consultant who drafted the CPR, 1998 obviously intended that Part 35 was to operate at the stage of proceedings and in the manner that previously was fulfilled by the use of interrogatories. In his report and rationale for the draft CPR (submitted on the 7 th May, 1998), Dick Greenslade explained his recommendation as to the use of interrogatories in Chapter 18, which dealt with Witness Statements, as follows 27 : Interrogatories I deal here with interrogatories in the English sense, i.e. written questions of the other party. [W]hen directed to the real issues in the action and when sensibly used they can make a valuable contribution to a cards on the table approach to litigation. Interrogatories relate to the factual evidence of witnesses which should be set out in their witness statements. I therefore recommend that (an) order that a party reply to (interrogatories) may not be made until after the time for exchange of witness statements has passed. 27 See pages , Judicial Sector Reform Project, Review of Civil Procedure. Page 11 of 15

12 The aim of interrogatories is both to explore and clarify the evidence which appears in the witness statement and to probe that evidence. 30. Part 35, CPR, 1998, as it appears in Trinidad and Tobago, reflects this recommendation and intention. And, this report of the proposer of the CPR, 1998 is also a secondary aid to interpretation of the Rules. Particulars 31. But does this mean that the CPR, 1998 were never intended to facilitate and compel the delivery of particulars on pleadings prior to the time for serving witness statements? 32. In Chapter 13 of his report, Dick Greenslade answers this question. Chapter 13 dealt with the Case Management Conference and one of the first matters addressed was statement of case. This is how that was dealt with 28 : Statement of Case [W]here statements of case do not adequately disclose the nature of the issues, are prolix or at fault in other ways the court must apply the sanction of striking out the statement of case and allowing a very limited time for the party at fault to file and serve a properly drawn statement. Assuming the statements of case to appear broadly in accordance with the rules the judge will then wish to find out whether either party: wishes to amend a statement of case; wishes to ask further and better particulars of the other party s statement of case; and wishes to join any further parties. If so appropriate directions can be given provided that the judge considers the application to be justified. 28 See pages 78 and 79, supra. And note that this chapter comes before the one dealing with Part 35 and addresses what are the interpretations that are possible (and desirable) at the case management conference. Page 12 of 15

13 It is important except that where there has been a significant change in circumstances any requests for leave to amend or to request further particulars should be made at the case management conference. 33. Plainly it was always intended that the powers of the court to be exercised in managing a case, included the power to order the delivery of further and better particulars of a statement of case as distinct from the power to order interrogatories (dealt with by Part 35). 34. Once again this understanding accords with the form and structure of the CPR, 1998 and the duties and powers of the court identified in Rule 25.1 and Rule 26.1, and especially when considered in relation to Part 35 and when taken in context. Indeed, it would make complete nonsense of the Overriding Objective, if it was that a party could not request and a court order particulars of a statement of case or defence when a pleading was defective or inadequate but not irremediably so. The consequences of such a restrictive reading and interpretation of the CPR, 1998 would considerably undermine the noble objectives embodied in Part 25 and contradict the purpose of the express power granted by Rule 26.1(w). In this regard it is to be noted that even though these powers are to be exercised at a case management conference, by Rule 27.3 (7) a case management conference can be scheduled before a defence is filed. Thus, clearly these powers are powers which the court can exercise wherever it is managing a case, 29 including before a defence is filed. Conclusion 35. The trial judge was therefore plainly wrong to hold that he could not order particulars on a statement of case before a defence was filed by reason of the provisions of Part 35, CPR, However, to put this in proper prospective, it is important to note that the appellant never offered to supply particulars, nor specifically argued against the construction of Part 35 put forward by the respondents. In fact, the appellant never sought to argue in the alternative that options open to the judge included ordering the appellant to deliver particulars or to amend its statement of case. 29 See Rules 25.1 and 26.1, CPR, Page 13 of 15

14 36. In passing, I wish to comment on the pre-action letter sent on the 24 th June, 2008 by attorneys for the appellant to Jack Warner, allegedly claiming repayment of sums of money which included the sums claimed in this matter. If this is indeed so, then I agree with the trial judge that the particulars sought by the respondent in its request of the 1 st April, 2010, maybe even together with further particulars, are necessary in this case if the respondent is to be given a fair opportunity to respond to the case brought against it. It could not be just to call upon a defendant to answer a claim, when a known prima facie inconsistent or contradictory claim may exist between the several principals (for all intent and purposes) which is not clarified and/or explained. The whole purpose of the CPR, 1998 is to avoid a multiplicity of actions, and to bring before the courts all facts that are in dispute between related parties, so that the relevant issues may be effectively determined by the court and managed to resolution. 37. In my judgment the appropriate forum to decide whether appropriate particulars can cure the inadequacies in the statement of case is the trial court. The trial judge is the one to exercise the discretion vested in him under Parts 25 and 26 and to consider whether or not to order particulars and if so what particulars and what consequential orders and directions are to be given. In this latter regard attention is drawn to the provisions of Rules 26.1 (2) and 26.6 (1), which mandate that whenever a court makes an order or gives directions it ought to specify the consequences of a failure to comply. Such express consequences should be normative and not the exception. Indeed, the success of the CPR, 1998 to fulfill the overriding objective depends in no small measure on judicial officers imposing conditions on orders and stating consequences for default. This matter is remitted to the trial judge for his reconsideration in light of this judgment. Page 14 of 15

15 38. In light of this analysis and decision there is no need to consider or deal with the appellant s application for judgment. The parties will be heard on the issue of costs. P. Jamadar Justice of Appeal I have read the judgment of P. Jamadar, J.A. and I agree. A. Yorke-Soo Hon, J.A. I have also read the judgment of P. Jamadar, J.A. and I agree. N. Bereaux, J.A. Page 15 of 15