IN THE HIGH COURT OF JUSTICE BETWEEN LENNOX OFFSHORE SERVICES LIMITED AND DECISION

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO: CV BETWEEN LENNOX OFFSHORE SERVICES LIMITED AND CLAIMANT HALIBURTON TRINIDAD LIMITED DEFENDANT DECISION Before the Honourable Madam Justice Pemberton Appearances: For the Claimant: Mr V. Deonarine For the Defendant: Mr K. Bengochea and Ms D. Meaves [1] THE ORIGINAL ACTION On the 17 th day of November 2008 Mr Asad Stewart claimed damages for personal injuries sustained in the course of his employment with Lennox Offshore Services Limited ( LOS ). I shall refer to that action CVV as the Original Action. In deciding the preliminary issue, whether LOS was liable to Mr Stewart for the injuries he suffered whilst in LOS s employ but engaged by a third Page 1 of 10

2 party through LOS, the court held that LOS was Mr Stewart s employer at the time that he sustained the injury. The issue set for trial is whether LOS breached its duty to Mr Stewart. In that decision I opined that it was open to LOS to raise whatever defences it deemed necessary. Further, I determined that LOS could lead no evidence that Mr Stewart was transferred or consented to be transferred to a third party. This decision was given on the 6 th January [2] THE PRESENT ACTION On February 11 th 2010, LOS filed this action (the Present Action) seeking a declaration that it is entitled to an indemnity against and/or contribution from the defendant Halliburton Trinidad Limited ( HTL ) against Mr Stewart s claim in the Original Action and an order for damages and consequential loss, expenses suffered, interest and costs by virtue of the said declaration. This matter was docketed to another judge, but filing Attorney acknowledged the existence of the Original Action as a related case which involves common issues of facts and grows out of the same event or transaction. [3] The Present Action was transferred before me to meet the Original Action. At that hearing the court enquired of Attorneys of LOS whether it was necessary to file a fresh action, that is, this present action and whether HTL could not have been joined in the original action. The court also pondered why Weatherford was not a party to this action. In any event, I gave directions for documents to be exchanged, inspection and the filing of witness statements. All parties involved, including Attorney-at-Law Mr James and his client Mr Stewart were in attendance. The effect of the directions was to ensure that all of the parties, including Mr Stewart were au courant with the others cases. [4] The court also took cognisance of paragraph 1 of the defendant s defence which reads as follows: It discloses no or no reasonable cause of action against the Defendant and/or that the Claimant is estopped from bringing Page 2 of 10

3 this claim against the Defendant and/or that the Claimant s claim is an abuse of process/scandalous and vexatious and should be struck out and commented whether this statement of case discloses the course of action against HTL. The court commented also that the basis of the indemnity was unclear from the pleadings. The parties agreed that the Present Action would be heard first as that determined who would eventually have to satisfy Mr Stewart s claim, should he be successful. Both matters were adjourned. I make this point to say that at no time was liability in the original matter considered by this court as a fait accompli. [5] The parties complied with the Pre-Trial directions and witness statements were filed in a timely manner. On the 8 th April 2011, LOS filed an application seeking an order inter alia that the trial in the Present Action be heard jointly with the trial in the Original Action. At the second CMC, I gave directions for all parties including Mr Stewart to file and exchange written submissions and authorities which they did. [6] LOS S APPLICATION GROUNDS OF THE APPLICATION The grounds of the Application are that to do so would be consistent with Part 1 CPR, the Over-riding objective; to enable the issue of quantum to be dealt with together with liability; that if the trials were deal with separately, the final disposition of the matter may be protracted since an appeal may be imminent; that if one of the parties case is disposed in a preliminary manner, that party may suspect, however unjustifiably that an abbreviated course was adopted and a decision reached in the court s rather than the party s interest ; that if this action is heard prior to the Original Action, the burden of proof would be thrust upon LOS which would some how effectively (reverse) the burden of proof and resulting in an unfair hearing. There were other grounds which I am not going to address in this decision. Page 3 of 10

4 [7] LOS S WRITTEN SUBMISSIONS Counsel grouped his submissions under three heads, the danger of separation of issues; the likelihood of an unfair hearing and the order of determining issues must be the main claim first then the indemnity and/or contribution claim. The thrust of Counsel s submission was based on dicta by de La Bastide C.J. in ROSS v CHATTERGOON 1. Counsel then sought to justify his position that a joint trial of these two cases was the sensible approach. Counsel seemed to find some comfort in the Canadian case of CADILLAC FAIRVIEW v ELIAS DON CONSTRUCTION LIMITED 2. As far as the unfair hearing ground is concerned Counsel advanced that if the indemnity suit is tried first or separately LOS would be obliged to prove certain aspects of a case which it is defending in the main claim. This would cast a burden on LOS which Counsel asserts would be at least partially would have been borne by Mr Stewart if the trials were to be heard jointly. Counsel made a case that the lack of discovery and subsequent procedures in the first matter and not in the second matter would hamper his client s case. If the matters were heard separately LOS would be deprived of its right to cross-examine Mr Stewart. [8] HTL s SUBMISSIONS HTL was resolute in its condemnation of this application. Counsel identified three (3) grounds of objections: (1) The application should not be entertained since it is an attempt to avoid the consequences of not bringing an ancillary claim in the Original Action within the prescribed time limit. (2) The ancillary claim then should have been brought as soon as LOS filed its defence in the Original Action. (3) The Honourable Court should not grant the application for consolidation since the Present Action constitute an abuse of process since they should have been brought as an ancillary claim 1 Civil Appeal No.8of 1988 I have on many occasions now, deplored this practice in running down actions of splitting the case and only dealing with liability C.L.R. (3d) 198. Page 4 of 10

5 in the Original Action. The application for consolidation is an attempt to avoid the consequences of such abuse. [9] First, Part 18 of the CPR provides for ancillary claims. In order for such a claim to be filed it must be filed before the first CMC. LOS is out of time. [10] Second, at this stage the prospective ancillary claimant must seek leave of the court. LOS is therefore obliged to make an application seeking the court s permission to bring an ancillary claim against HTL. The court cannot give such permission unless it is satisfied that there has been a significant change in circumstances which became known after the first CMC 3. Counsel submitted that this action was a clear attempt to circumvent the requirements of the CPR and the consequences of LOS s failure to make an ancillary claim within the time permitted. Counsel further submitted that the application by LOS was an abuse of the court s process. The words of Ibrahim J. in the BURNUP 4 case fortified his position. In fact, Counsel urged the court not only to strike out the application, but also to strike out the second action in its entirety. [11] Third, Counsel s submission on the non existence of the court s jurisdiction in hearing this matter was based on the fact that there is no provision in the CPR for Joint Trials and further if it were an application for consolidation LOS s application will fail based on the learning in LEWIS v CLICO 5. On the issue of costs LOS must bear the costs of this application. [12] ASAD STEWART s SUBMISSIONS Counsel s contention was that this application to join proceedings or to have a joint hearing is really an application to make an ancillary claim in the Original Action. Counsel was adamant that LOS engaged in an obvious attempt to by-pass 3 See: CPR Rule 18.4(5) 4 BURNUP & SIMS ENGINEERING INC. AND MURRAY CHAMBERLIN v THE MINISTER OF HEALTH AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO HCA 1977 of LEWIS v CLICO (TRINIDAD) LTD (1997) HCA 718 of 1996 per Sealey J. Page 5 of 10

6 the provisions of the CPR 18.4(5). Counsel referred the court to the Privy Council s decision in YAT TUNG INVESTMENT CO. LIMITED 6 and the BURNUP case. Counsel urged the court to reject this application. [13] LOS S RESPONSE LOS gave a very lengthy response to these proceedings. Counsel attacked his opponents submissions on several grounds but I choose to highlight only a few. One of the grounds was that the court ought not to entertain the issue of abuse of process on this application. If the court is not with him, Counsel urges that the case is not abusive. The court has the jurisdiction to and should order the joint trial of these actions. Counsel concluded his submissions by asserting inter alia that the application has become unnecessary, lengthy and complicated by the introduction of the issue of abuse of process which speaks as well to the striking out of the entire action. The only real objection is to the court s lack of jurisdiction to hear the application for a joint trial and this is not to be countenanced. [14] Counsel stated that if the abuse of process issue was to be raised, it ought not to have been raised at the time or in the manner that it was so raised. The matter ought not to be struck out at this stage since to do so would be contrary to the overriding objective and would deprive the party whose case was being struck out an opportunity to advance a reason for not filing the indemnity action together with the main claim. [15] ANALYSIS AND CONCLUSIONS I should start by making three statements. One, this is not a running down case and de La Bastide CJ s dicta in CHATTERGOON is not helpful to LOS. Two, I have searched the CPR, which guides my court procedure and proceedings and I have searched the substantive law and can find no reference to joint trials or hearing cases jointly. Three, it is clear that consolidation of matters can have no 6 YAT TUNG INVESTMENT CO. LTD v DAO HENG BANK LTD. [1975] A. C Page 6 of 10

7 application where the actions or suits are brought by different persons, one by A against B, and another by B against A 7. This is clearly the case with these two matters, the Original Action and the Present Action. [16] Having said that I must reiterate what d Auvergne JA, in considering the provisions and correct application of the Over-riding objective indicated that Part 1.1 cannot be used to widen or enlarge what the specific section (rule) forbids 8. As I stated in another case 9, the over-riding objective cannot be used as a slip rule (to) create substantive rights to bring actions. In this case I would posit that the over-riding objective cannot be used to create avenues to proceed in litigation where none exists especially when the effect of such creation is to circumvent the clear law or rules of procedure. [17] I wish to make an observation on the CADILLAC FAIRVIEW CASE. The court in that Canadian case made an order that the matters be tried together, or one following the other in the discretion of the trial judge. In any event that case was decided in an environment which is dissimilar to ours. That decision was based on the application of their Rule which does not have equivalent in our CPR. In any event Master Kelly, in interpreting the Rule said: In my view the balance of convenience strongly recommends the trial together or in succession by the same trial judge. [Emphasis mine]. The parties and the court have adopted the latter course in this instance. Further the learned Master continued: It respects the avoidance of conflicting decisions and promotes finality. It brings all parties to the table together, 7 FORBES-SMITH v FORBES-SMITH & CHADWICK [1901] P 258 at pp CA per Collins LJ. 8 ORMINSTON KEN BOYEA AND HUDSON WILLIAMS v CARIBBEAN FLOUR MILLS LTD CV No. 3 of CHANDRESH SHARMA v THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO CV RULES OF CIVIL PROCEDURAL R.R.O. 1990, Reg, 194. Page 7 of 10

8 and enables the trial judge to determine the issues to be litigated and the order of proceedings. The learned Master further recognised the discretion of the trial judge in fixing his list. [18] In any event if the case at bar were to survive this application the matters would have been heard in succession. That was the clear expression of intent by the parties at the 2 nd Case Management Conference. Since LOS cannot traverse the consolidation route, it certainly cannot create a new and unknown path of joining of trials (under the guise of furthering the over-riding objective). The Cadillac case therefore does NOT carry LOS s case very far off the blocks. [19] The clear position both factually and as a matter of law and procedure, is this. LOS is the Defendant in the Original Action and the Claimant in the Present Action. Consolidation of the two actions is therefore not permissible. There was no application made to file an Ancillary Claim in the Original Action during the time limited to do so or in the manner prescribed by the CPR. This Application cannot be used to cure the defect. The overriding objective is a statement of philosophy and is not meant to be used as LOS is attempting to use it to justify this Application. On these grounds LOS s application must fail. [20] However, I shall not stop there since under the over-riding objective the court is mandated to deal with cases justly. This includes, such as are peculiar to this case, saving expense, expedition and fairness. It is in this context that I am of the opinion that there is no time like the present and I shall proceed to examine the submissions on Abuse of Process. [21] ABUSE OF PROCESS Both HTL and Mr Stewart submitted that the Application was an abuse of the court s process in that LOS ought to have filed Ancillary Proceedings in the Original Action. Clear learning in BURNUP per Ibrahim J (as he then was) is Page 8 of 10

9 instructive as to whether this present action is an abuse of process. I posed that issue at the CMC and instead, I was met with this application to join the trials. [22] I say this to highlight that LOS was on notice of the court s concern about the Present Action and the fact that the Defence at paragraph 1 spoke as it did. There can therefore be no claim of surprise or that LOS was not given an opportunity to address the issue of abuse of process or striking out on grounds of disclosing no cause of action. [23] The Application is an abuse of process in that an ancillary claim should have been brought by LOS in the Original Action. I cannot depart from Ibrahim J s dicta on this issue. [24] I note that there is no application for summary judgment. [25] WHETHER ENTIRE CLAIM SHOULD BE STRUCK OUT HTL in its Defence at paragraph 1 raises quite squarely whether the Statement of Claim filed against them discloses no cause of action and should be struck out. In examining the pleadings it is clear that the basis of the indemnity and/or contribution as claimed is not pleaded. There is no averment that the indemnity arose out of a statute, a contract among any of the parties to this action, or any party at all. [26] The primary requirement in negligence cases, is the existence of a duty of care. Forseeability is one of the tests. Where is that pleaded? Another test to be satisfied is the proximity of the relationship. Where is that pleaded? The inescapable conclusion is that there is no averment that the contribution arose out of a duty of care, whether statutory or otherwise owed by HTL to anyone. I am of the view that even if I permit the parties to submit on this issue, they will not avert the inevitable conclusion. Page 9 of 10

10 [27] What then should I do? Under the court s Case Management powers Part 26, the court can strike out a Statement of Case or any part of it on its own motion. There is no need for an application by parties. The object is to stop the proceedings and to prevent a further waste of resources. 11 The only obvious course is to dismiss the second matter as disclosing no cause of action against HTL. I do not think that LOS is well placed to frown on this course, since the omissions in their pleadings are fatal to its cause. [28] In the premises the Application to join the trials of the Original Action and the Present Action filed is dismissed as an abuse of process. [29] Given my findings on the Statement of Case, I am of the view that the entire action that is, the Present Action is struck out with costs to be paid by LOS to HTL on both the Application and under my motion. ORDER: 1. The entire action and the Application contained therein be and are hereby struck out as disclosing no cause of action against the Defendant. 2. Costs on the Application and striking out to be paid by Claimant to Defendant to be assessed if not agreed. 3. The Defendant to file Statement of Costs on/before 16 th January The Claimant to file objections on/before 12 th February Hearing to take place on 14 th March 2012 at 1:30 p.m. POS # Parties in the Original Action are urged to meet to settle their matter. Dated this 9 th day of December /s/ CHARMAINE PEMBERTON HIGH COURT JUDGE 11 See MASOOD v ZAHOOR [2009] EWCA CIV 650; [2010] 1 ALL ER 888. Page 10 of 10