REPUBLIC OF TRINIDAD AND TOBAGO CV: 2013-04300 IN THE HIGH COURT OF JUSTICE BETWEEN LAKHPATIYA BARRAN (also called DOWLATIAH BARRAN) CLAIMANT AND BALMATI BARRAN RAJINDRA BARRAN MAHENDRA BARRAN FIRST DEFENDANT SECOND DEFENDANT THIRD DEFENDANT BEFORE THE HONOURABLE MADAM JUSTICE DONALDSON-HONEYWELL APPEARANCES: Mr. Samuel Saunders instructed by Ms. Gabrielle Figaro for the Claimants Ms Kathleen Pilgrim Thornhill for the first and Second Defendants. Date Delivered: September 21, 2015 RULING Page 1 of 12
Factual Background: [1] In this matter the Claimant, aged seventy-seven (77), seeks Relief against her daughter and grandson. The case against the Third Defendant, her son was discontinued. The Claimant alleges that her daughter, the First Defendant, obtained her agreement to convey an interest to herself and the Second Defendant, as Joint Tenants with the Claimant, in the home where they all reside by promising to take care of the Claimant for the rest of her life. The Claim is based on breach of contract to fulfil this promise and also on an allegation that there was a total failure of consideration since Two Hundred and Twenty Thousand Dollars ($220,000.00) recited in the Deed of Conveyance was never received. [2] The Claimant filed a Claim Form and Statement of Case on the 30 th October, 2013. On the 17 th December, 2013, the First and Second Defendants filed their Defence and Counterclaim. [3] By Order of the Honourable Madam Justice Jones [the presiding Judge ] dated 5 th December, 2014, the Court ordered the parties to file and serve their Witness Statements on or before the March 3, 2015. [4] There is a Statement in the evidence filed by the Defendants that on December 11, 2014 they fell out with the Attorney then on record as representing them and she returned the file to them. [5] The Defendants evidence at paragraphs 7 and 8 of their Affidavit in support of this Application is that during the period from December 12 th to March 3 rd they consulted three Attorneys. However, the names of the Attorneys who were consulted, the methods of consultation and the specific dates are not provided in the Affidavit. [6] The record includes proof, in the Affidavit of the Defendants former Attorney Ms V. Badrie-Maharaj [ VBM ] in support of her Application to be removed from the record that the Defendants did consult one Attorney, namely Mr. Chris Seelochan, on February 27, 2015. On the record it is also clear that eventually when the Defendants attended the Pre-Trial Review [PTR] herein on April 1, 2015, they informed the presiding Judge of a retainer of Mr. Seelochan being arranged. Mr. Seelochan, however, in a letter dated April 15, 2015, attached as VB3 to VBM s Affidavit dated April 17, 2015, placed the blame for the retainer not being arranged on the Defendants. He says they consulted him first on February 27, 2015 and failed to pay his retainer fee over the weeks that elapsed thereafter. The Defendants later admitted when questioned by the presiding Judge. Page 2 of 12
[7] On March 3, 2015, the date for filing Witness Statements, only the Claimant filed same and although VBM remained on record no Application for Extension of Time for the Defendants to file Witness Statements was filed prior to the date. [8] On March 5, 2015 the Defendants filed a Notice of Change of Attorneys indicating that they would represent themselves instead of having an Attorney. The Attorney on record for the Defendants, VBM, was notified that the correct procedure was not followed so she remained on record. [9] On April 1, 2015, the same date that was fixed for the PTR, VBM filed a Notice of Application to cease to act for the Defendants. It was not served so the presiding Judge directed that VBM remain on record. Although, the Defendants had still neither filed Witness Statements nor settled their legal representation, the trial date of April 15, 2015 was not vacated. [10] On April 15, 2015, the parties appeared before the Court for trial and the Defendants had still neither filed Witness Statements nor resolved the issues of legal representation. It was for these reasons that on the Defendants Application, the trial was postponed by the presiding Judge. The Judge made clear, however, by questioning the Defendants that they had been fully aware of her Order that they should have filed Witness Statements. The Judge said one of her reasons for not proceeding with the trial was that she was at that time not sure whether the Defendants or their lawyers were at fault for not having representation resolved. [This was before the presiding Judge would have had sight of the letter from Mr. Seelochan, Attorney-at-Law mentioned above which clarified that the fault lay with the Defendants]. The trial date was adjourned to April 27, 2015. The Application to remove VBM from the record was still not in proper form so she remained on record and the hearing of that Application was adjourned to April 20, 2015. [11] On April 20, 2015 the Order was granted for VBM to cease to act for the Defendants. [12] On April 27, 2015 the trial commenced as scheduled although no Witness Statements had been filed by the Defendants who were self-represented. After the Claimant was sworn in, the matter was set to be started de novo because the Claimant said that she was not fully literate and could not confirm that her Witness Statement was read over to her before she signed it. The presiding Judge directed the Claimant s Attorney to seek further instructions from the Claimant so as to have her give evidence-in-chief in the old-fashioned way. In other words the Claimant s full testimony as a witness would be provided orally including Evidence-in-Chief by way of responses to non-leading questions asked by her Attorney. The Defendants were asked to seek an Attorney to represent them and the trial was adjourned to start de novo on July 22, 2015. Page 3 of 12
[13] Some five weeks later on May 19, 2015 a Notice was filed by Ms Pilgrim Thornhill indicating that she was the new Attorney for the Defendants. [14] On 22 nd May, 2015, the First and Second Defendants new Attorney filed a Notice of Application on 22 nd May, 2015 seeking relief from sanctions and a three week extension of time for filing Witness Statements. There was a docket change in the matter when the then presiding Judge was elevated to the Court of Appeal on June 1, 2015. The Defendants Application was fixed to be heard on June 15, 2015. The July 22, 2015 Trial Date was vacated and the Claimant s given time to file an affidavit in response to the Defendants Application with a decision thereon reserved to 21 st September, 2015. [15] The reasons for the delay in filing Witness Statements were provided in the Affidavit of the First Defendant filed on the 22 nd May, 2015 and are summarised as follows: a. That in the month of December, 2014 there was disagreement between herself and her Attorney-at-Law and the relationship was terminated. Her file was therefore returned to her on the 11 th December, 2014. b. Upon receipt of the file, the First Defendant consulted with at least three Attorneys-at-Law with a view to retaining them for her matter. However, the Attorneys refused to accept her brief stating that the time was too short to comply with the Court s directions. [16] The First Defendant further stated in her affidavit that the Defendants would be at a severe disadvantage if their Witness Statements are not filed and that they intend to file two Witness Statements, one by herself and the other by Mr. Edmund Subryan, the Attorney-at-Law who prepared one of the Deeds in the matter. [17] Further, she stated that if the Application is granted, the Witness Statements would be filed within three weeks and that this would not occasion an adjournment of the trial then fixed for July 22, 2015. Issues: [18] The issue to be determined is whether the First and Second Defendants Application for Extension of Time and Relief from Sanctions should be granted. Page 4 of 12
Law and Analysis: [19] Rule 29.13 (1) of the Civil Proceedings Rules 1998 (the CPR provides as follows: If a Witness Statement or Witness Summary is not served in respect of an intended witness within the time specified by the court then the witness may not be called unless the court permits. [20] CPR Rule 28.13 provides that a party who fails to give disclosure by the date specified in the Order may not rely on or produce any document not so disclosed at the trial. [21] These are express sanctions provided for in the CPR and therefore a party in default needs to obtain relief from sanctions pursuant to Rule 26.7 CPR. [22] The Privy Council in AG v Keron Matthews 1 at [15] stated: [Rules 26.6 and 26.7 must be read together. Rule 26.7 provides for Applications for Relief from any Sanction imposed for a failure to comply inter alia with any rule. Rule 26.6(2) provides that where a party has failed inter alia to comply with any rule, any Sanction for noncompliance imposed by the rule.has effect unless the party in default applied for and obtains Relief from the Sanction (emphasis added). In the view of the Board, this is aiming at rules which themselves impose or specify the consequences of a failure to comply. Examples of such rules are to be found in rule 29.13(1) (which provides that if a Witness Statement or Witness Summary is not served within the time specified by the court, then the witness may not be called unless the court permits); rule 28.13(1) (consequence of failure to disclose documents under an order for disclosure); and rule 33.12(1) (consequence of failure to comply with a direction to disclose an expert s report). [23] Therefore, the Application for Relief from Sanctions is the correct Application in the present circumstances as the CPR imposes a penalty where there is a failure to file Witness Statements. [24] The Court s discretion to grant Relief from Sanctions only arises after the conditions precedent in Rule 26.7(3) CPR have been satisfied. A Court is precluded from granting relief unless all three conditions are satisfied. [25] Rule 26.7 states as follows: 1 [2011] UKPC 38 Page 5 of 12
(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. (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. [26] In the Court of Appeal decision of Trincan Oil Ltd and Others v Martin 2, Jamadar, JA opined that Rule 26.7 is to be interpreted as follows: [13] 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 conditions precedent that must all be 2 CA Civ. No. 65 of 2009 Page 6 of 12
satisfied before the exercise of any true discretion arises. A court is precluded from granting relief unless all of these 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 preconditions at 26.7 (3) are not satisfied. THRESHOLD TESTS: Promptitude: [27] Rule 26.7 (1) requires that an Application for Relief from any Sanction must be made promptly. In the case of Trincan Oil v Martin where the Application was made one and one-half months after the period for the filing of the Witness Statements, without any explanation for the delay as not prompt and stated: One and one-half months, in the absence of any explanation, is not prompt in the context of the time lines of the CPR, 1998 and in the context of the orders that were made by the judge... [28] Further, a delay of eighteen days in making an Application for Relief from Sanction was upheld by the Court of Appeal as being too late in The Attorney General of T&T v Universal Projects Ltd 3. [29] In relation to promptitude Jamadar J.A in Trincan Oil Limited v Schnake 4 (at para 22) said: Part 26.7 (1) is mandatory. It requires that an Application for Relief from any Sanction imposed must be made promptly. Promptitude in any case will always depend on the circumstances of the particular case and will thus be influenced by context and fact. Prompt must be considered in relation to the date when the sanction was imposed. [30] However, in the recent local Court of Appeal judgment of In re The Partition Ordinance Chapter 27 No.14 Rawti a/c Roopnarine, Rawti; Roopnarine, Kumar v Harripersad a/c Kissoo, Harripersad; Rakhunanan a/c Boodoo, Harry, Bhagmatic a/c Bhagmatiah a/c Boododdsingh, Bhagmattie; Chanerwali 3 Civ. App. No 104 of 2009 4 Civ App 91 of 2009 Page 7 of 12
a/c Chanadaye a/c Roopsingh Chanadaye 5 the decision of the judge at first instance who ruled that a delay of three months could by no stretch of imagination be deemed to have been prompt was overturned. The court further stated that: Whether an Application for Relief is promptly made depends on the facts of each case. What is prompt in one situation may not be so considered in other circumstances. Promptness is therefore influenced by the context and facts of each case....and Whether an Application is prompt does not depend simply on the time that has elapsed from the date the Sanction took effect to the date the Application for Relief was made. It depends on the factual context and there are other relevant and more significant matters in this case that the judge did not consider... The Application was.. made almost four (4) months after the date the Sanction took effect in relation to these Witness Statements. But it was made in the context where the Witness Statements were filed in time and served the following day. This was well before the pre-trial review and the trial date. The parties appeared at the pre-trial review and, having read the statements indicated that they had no evidential objections to them. The Application for Relief was therefore made long before the trial date and in circumstances where it could cause no prejudice to the parties nor delay of the trial. Such considerations are relevant and form an essential part of the context in which promptness must be considered. When those considerations are taken into account it is not possible to regard the Application as not having been made promptly. Indeed, when those circumstances are taken into account the Application for Relief is best viewed in the nature of a house-keeping exercise [emphasis added] [31] In the present case, the Application was made approximately two months after the deadline had passed. Taken on its own, this delay may not be considered prompt. However, the context of the case must be taken into account. In this case the context within which the failure to file Witness Statements took place differs from that in Rawti in that in this case the followed on many warnings and reminders by the presiding Judge, caused a postponement of the Trial and prejudiced the interests of the Claimant who is elderly and unwell in having a timely disposition of the matter. I have also taken into consideration as part of the context within which to determine promptness, the Defendants explanation for the delay. It is my determination that unlike the situation in Rawti where the failure of counsel for 5 Civ. App. No 52 of 2012 Page 8 of 12
the other party to provide information on a change of address contributed to the delay, there was nothing in the Defendants explanation in the context of this case to support a finding that the Application was prompt. Good Explanation for Delay: [32] In addressing the issue as to whether there was a good explanation for the breach guidance may be sought from the cases of Regis, Miguel v Attorney General of Trinidad and Tobago 6, Universal Projects and Rawti. [33] In Regis, it was stated that what is required is a good explanation, not an infallible one. Whether such an explanation has been shown is a question of fact to be determined in all the circumstances of the case, and is therefore a matter of judicial discretion. [34] In the Universal Projects, the Privy Council came to the same conclusion as Jamadar, JA and found that there was no good explanation for the failure to file the defence. The Board considered: to describe a good explanation as one which properly explains how the breach came about simply begs the question of what is a proper explanation. Oversight may be excusable in certain circumstances. But it is difficult to see how inexcusable oversight can ever amount to a good explanation. Similarly if the explanation for the breach is administrative inefficiency. [35] In the recent Court of Appeal judgment of Rawti, Mendonca, J.A. stated, when considering the explanation for the breach it must not therefore be subject to such scrutiny so as to require a standard of perfection. [36] In the present case, the explanation for the delay given was the termination of the retainer between the Defendants and their Attorney and further, the Defendants inability to secure an Attorney-at-Law because all three that were said to have been consulted felt the time was too short. [37] This explanation cannot be accepted as a good one in the circumstances. There is no explanation as to what the time was too short for, but at that time all that was required was discovery of documents by January 2, 2015 and filing of Witness Statements by March 10, 2015. It is not a reasonable explanation that Attorneys 6 H.C.5237/2010 Page 9 of 12
felt the time was too short. It very unlikely that for the period in question, more than seventy (70) days from January to March, no Attorney could be retained that did not feel the time was too short. In any event, as correctly stated in the Claimant s Written Submission, any Attorney-at-Law consulted would know that it was open to them to apply for an Extension of Time for complying with the Court s Orders before the date set for filing and before the sanctions came into effect. Further, according to Rule 26.7 (4) (b), due consideration must be given to whether the fault was due to the party or their Attorney. This was an issue that was brought to the attention of the parties as being considered by the presiding Judge on April 15, 2015. In all the circumstances, it is my finding that, there was no good explanation for the delays herein and the delays were the fault of the Defendants and not their Attorneys. [38] In the present case, by Order dated December 5, 2014, the Honourable Madame Justice Jones directed that discovery be completed by January 21, 2015 and that un-agreed bundles of documents were to be filed by February 13, 2015. The Claimant filed its bundle and list of documents but the Defendants have yet to do so. They have not disclosed any documents in discovery and cannot rely on any documents other than those disclosed by the Claimant if this matter proceeds to Trial. The Defendants therefore have failed to establish that the last of the threshold requirements, general compliance with all other directions as required at CPR 26.7(3) (c) was met. [39] Accordingly, the Defendants have not satisfied the threshold requirements as stated in CPR 26.7 (1)-(3) and are not entitled to relief from sanctions. The Court is not therefore required to consider the factors set out in CPR 26.7(4) in considering whether to grant Relief from Sanctions. However, for completeness they were also examined before coming to a determination on how to proceed herein. OTHER CONSIDERATIONS: Administration of Justice: [40] In order to determine whether this factor has been satisfied, the Court has to consider the needs and interests of the parties as well as other Court users 7. The prior failures of the Defendants have resulted in wasted Court dates adding to the expense of the Claimant and depriving other Court users of efficient allocation of the Court s resources. On the other hand the Court was prepared to proceed with the trial on April 27 th but the hearing was discontinued due to the Claimant s 7 Rowley v Ramlogan, Civ App No. P215 of 2014 at para. 34 Page 10 of 12
difficulties. As between the parties, I am of the opinion that it would be in the interest of the administration of justice for the matter to progress to trial where the issues raised on the pleadings will be fully ventilated. It is my view, however, that this would not necessitate Relief from Sanctions as claimed and can justly be achieved without the Defendants being permitted to file Witness Statements, as will be hereinafter directed. Fault of Party or Attorney: [41] As stated above, it is to be noted that the failure to file was due to the fault of the Defendants and not their Attorney. Whether breach can be remedied within reasonable time and whether the trial date can still be met: [42] It has been submitted by the Defendants that; had the date for hearing of the Application been kept at July 22, 2015 the Witness Statements could have been filed within three weeks and the three weeks would fall before the trial date. This would not have occasioned an adjournment of the trial and therefore the trail date could still have been met. Currently a new trial date has not been set so it will be possible for the Defendants to file Witness Statements without causing a trial date to be vacated. It must, however, be recalled that the Defendants had by failing to file Witness Statements previously caused the first trial date to be vacated. Conclusion: [43] Having regard to the failure of the Defendants to meet the threshold requirements for Relief from Sanctions I consider it to be in the interests of justice that the Defendants Application for Relief from Sanctions and for Extension of Time to file Witness Statements be dismissed. Accordingly, the Defendants will not be permitted to file Witness Statements herein. [44] The Claimant has asked that in addition to dismissing the Defendants Applications that the Court as a consequence also exercise its discretion to give Judgement against the Defendants on her Claim. It is however my view that the overriding objective of dealing justly with this case, a matter involving family members with the family home as the subject matter of the dispute, will be best Page 11 of 12
served if the matter continues to trial in the manner envisaged in the presiding Judge s directions at the aborted trial on April 27,2015. In exercise of the discretion afforded under CPR 29.13(1), to permit the party that has failed to file a Witness Statement to call witnesses at trial, I will therefore permit the First Defendant to give evidence at trial and be cross-examined. The Defendants will not be permitted, however, to call any additional witnesses and evidence-in-chief will be restricted to the facts stated in the Defence. The Claimant and the First Defendant will be required to give evidence in the old fashioned way. Further, having failed to comply with the Court s discovery directions the Defendant s will not be permitted at the trial to rely on or produce any document not so disclosed. [45] The Defendants Applications are dismissed with costs to the Claimant. Eleanor J. Donaldson-Honeywell Judge Assisted by: Christie Borely Attorney-at-Law Judicial Research Counsel Page 12 of 12