REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV 2010 01117 BETWEEN CRISTAL ROBERTS First Claimant ISAIAH JABARI EMMANUEL ROBERTS (by his next of kin and next friend Ronald Roberts) Second Claimant AND DR. SAMANTHA BHAGAN MEDCORP LIMITED First Defendant Second Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Mr. M. Powers QC instructed by Mr. R. Williams for the Claimants. Ms. J. Walker for the First Defendant. Mr. R. Martineau S.C. leading Mr. I. Benjamin instructed by Mr. S. Wong for the Second Defendant.
Decision 1. Before the court is the Second Defendant s application dated 27 th June 2014 to amend its Defence. The Application 2. The Second Defendant based its application on the following grounds: a. That on the 13 th March 2102, the court granted permission, inter alia, for the Claimant to file and serve a Re-Amended Claim Form and Statement of Case and for the Defendants to file and serve Amended Defences. b. Although the Claimant did file and serve a Re-amended Statement of Case on 16 th March 2012, owing to the parties consent to mediation, the court vacated, inter alia, the order for the Defendants to file Amended Defences. c. The issue of liability was agreed to by Consent Order dated 21 st January 2013. Directions for assessment were given on the 31 st October 2013; however, by consent orders dated 31 st January 2014, 26 th March 2014 and 16 th June 2014, the time in respect of the directions were extended. The first CMC was fixed for 30 th June 2014. d. Witness statements of facts were filed, by the Claimants on the 14 th February 2014 and by the Defendants on 16 th May 2014. 3. The Second Defendant averred that there is a need to further amend both its Defence and the First Defendant s Defence to narrow the issues on quantum, further that they have not responded to the Claimants Re-Amended Statement of Case filed on 16 th March 2012. The Second Defendant also stated that there would be no prejudice should the court grant leave to amend. Page 2 of 17
Submissions Second Defendant s Submissions 4. Counsel for the Second Defendant summarized the Second Defendant s position at paragraph 2 of its submissions filed 15 th July 2014 as follows: a. The parties pleadings are not closed and remain unresolved in what is a significant decision for a severely injured Claimant; b. The parties are under a duty to further the overriding objective and assist the court in its case management of the matter and in particular, the court s duty to deal with cases justly; c. The Defendants are entitled to amend their defences as such permission was granted in March 2012 following the Claimant s re-amendment of their pleadings; d. The Claimants only indicated in June 2014 that they changed their position on amending their pleadings and took issue with the Defendants pleadings and evidence; e. The Claimants will not be prejudiced as the Defendant s proposed amendment delineates particulars of its dispute on quantum on the basis of the Claimants case as communicated in their correspondence to the Defendants; 5. According to the Second Defendant, although the court granted permission by order dated 13 th March 2012 to the Claimants to file re-amended pleadings and to the Defendants to file amended defences, this was not done. In the case of the Claimants, the Second Defendant argued that the Claimants filed a re-amended Statement of Case which was not in compliance with the court s initial order of the 13 th March 2012 and while the court did, on the 27 th March 2012, hear the parties on this non-compliance issue, the court deferred its decision and vacated the said order. The Second Defendant contended that the reason the court vacated the order was that the issue of quantum had been split from the issue of liability and the pleadings issue related to quantum and the parties had indicated an intention to mediate. Page 3 of 17
6. Attorney for the Second Defendant stated that between April and May 2012, the parties discussed and disputed the Claimant s position that there was no proper care in Trinidad and Tobago for the Second Claimant. On 21 st January 2013, liability was settled and quantum proceedings began in October 2013. In further correspondence dated 25 th October 2013, the Claimants indicated their intention to seek further amendments to their Statement of Case. Although a CMC was held on the 31 st October 2013, the court did not address the pleadings issue of the Claimants non-compliant re-amended Statement of Case or the Defendants right to file an amended Defence in response. 7. Notwithstanding a further exchange of correspondence between the parties between 28 th November 2013 and 22 January 2014 on the issue of the availability of care for the Second Defendant, on the 13 th June 2014, the Claimant indicated their opposition to the Defendant s pleadings stating that they were entitled to assume that the Defendants would advance no counter case on the availability of treatment in Trinidad and Tobago and on the 17 th June 2014 abandoned their position to seek a further amendment to their pleadings. 8. Counsel for the Second Defendant also noted that although the Claimants witness statements of fact adduced evidence that care for the Second Claimant is inadequate in Trinidad and Tobago the Claimants Statement of Case did not raise this issue. 9. It was therefore submitted on the Second Defendant s behalf that both parties anticipated that evidence would be adduced as to whether services and facilities are available in Trinidad and Tobago to meet the needs of the Second Claimant. It was argued therefore, that the amendment sought would assist the court in indentifying and delineating the issues to the Claimants unpleaded case but communicated in their correspondence and evidence. Accordingly, in keeping with the overriding objective, it was argued that this would assist the court in dealing with the case justly on the basis of legitimate issues: see Bernard v Seebalack [2010] UKPC 15 para 15. Page 4 of 17
10. Further, it was submitted that Rule 20.1(3) and (3A) are tools within the CPR for bringing before the court all facts in dispute so that the relevant issues can be determined and managed to resolution and in determining the meaning of good explanation and prompt (Rule 20.1(3)) the court ought to consider Parts 1, 20.1(3A) and 25 of the CPR. Counsel contended that promptitude must be considered contextually: Monza (Trinidad) Limited and Others v PriceWaterhouseCoopers Limited and Others Civ App No 15 of 2011 para 10 and 13; Rampaul v Chavez Industrial Maintenance Limited and Others Civ App No 35 of 2012. Counsel submitted that in the circumstances and timeline set out above, the Defendant s application was made both with good reason and promptly. The Second Defendant argued that since the pleadings issues were deferred on 27 th March 2012, the Defendants have not been in a position to amend their Defences until the Claimant s non-compliant re-amended Statement of Case is corrected and refilled. It was also argued that the correspondence between the parties showed that the Claimants case on availability of treatment in Trinidad and Tobago was clearly in dispute. Similarly, that the evidence of all parties reflects the dispute over the availability of treatment in Trinidad and Tobago, inclusive of expert evidence which came at a considerable expense. 11. Counsel concluded that the factors listed in Rule 20.1(3A) do not favour a refusal of the Defendant s application. Specifically, Counsel submitted that: a. The interest of justice favours granting the application so as to ensure the parties be on equal footing and in particular in light of the amount of money involved in the claim. Further to identify precisely the issues having regard to its complexity and the need for future care. b. The application did not become necessary by any failure by the Second Defendant s attorney but rather where as a result of the circumstances of the case. c. The proposed amendments are not inconsistent with the Defence. d. The trial will still proceed as scheduled. e. There is no prejudice to the Claimants if the application is allowed but substantial prejudice to the Defendants if it is refused. Page 5 of 17
Claimants Submissions 12. It was contended on the Claimants behalf that the obligation is on both parties to set out the facts upon which it intends to rely. Further, that the Second Defendant s Defence does not indicate any material facts to advance a case for treatment of the Second Defendant in Trinidad and Tobago. It was argued that while the burden is on the Second claimant to prove that expenditure on services is reasonable, if the Second Defendant seeks to advance an alternative basis for the calculation of services or to prove that expenditure is unreasonable, it has to plead it. Thus, an amendment is required by the Second Defendant to advance such a case. Counsel submitted that after considerable delay (three and a half years after filing its Defence and more than 18 months after the Claimants filed their reamended Statement of Case), the application to amend ought to be refused. 13. According to Counsel for the Claimants, the issue of the Second Claimant s treatment abroad was raised in a medical report dated 3 rd April 2007 by Dr. Parag which advised that the Claimant receive treatment in the USA as therapy was limited in Trinidad and Tobago. This report was annexed to the Claimants Statement of Case filed on the 24 th March 2010. It was submitted that in breach of Rule 10.8(2) when the Second Defendant filed its Defence on 29 th December 2010, it failed to set out its case, (since it failed to respond to the opinion of Dr. Parag) and in particular a case for treatment of the Second Claimant in Trinidad and Tobago. Further, that the permission given to the Defendants to amend their pleadings by order of the 13 th March 2012 could not provide a blanket protection to the Defendants from the consequences of failure to comply with Rule 10.5. It was argued that not only is compliance with this rule essential to proper administration of justice, it is also important to ensure that no party gains an unfair advantage by a failure to disclose all relevant facts. 14. While Counsel admitted the facts set out at paragraph 5 and 6 above, it was contended that there was no order in respect of the Defendants objection to the Claimants alleged non-compliant Amended Statement of Case and further no deferment of any decision. Page 6 of 17
15. Contrary to the Second Defendants submission that the pleadings issues were deferred on 27 th March 2012 when the court vacated its order of the 13 th March 2012, Counsel for the Claimants contended that the effect of vacating the order is to render that order void. Thus, the court could not have intended to provide the Defendants with permission to amend their Defences at any time in the future. It was submitted therefore that the Defendants were not entitled to amend their Defences, as permission must be sought. 16. It was also contended that to allow the Second Defendant s application will prejudice the Claimants as the Claimants cannot be expected to meet a case on correspondence when no material facts have been pleaded. Further, that the Second Defendant by its delay, was allowed to expert shop to make out a case for its position that adequate treatment for the Second Claimant will be available in Trinidad and Tobago. In this regard, Counsel noted that the Second Defendant s developing intention to advance a case for treatment in Trinidad and Tobago could be seen at least 18 months before the Application of the Second Defendant s to amend its Defence for example by letters dated 31 st December 2013 and 22 nd May 2014 to Dr. David Toby. 17. Counsel for the Claimants also argued that the Claimants will be prejudiced and this injustice could not be rectified by providing an opportunity to the Claimants to meet the newly pleaded case. The Claimants say it has taken a long time to prepare their evidence to support their existing case and it is not known the time it would take to instruct experts to meet a case for treatment in Trinidad and Tobago. Further, Counsel contended that statements cannot make good defective pleadings on behalf of a Claimant or be used to as a substitute for a short statement of all the facts relied upon by the Claimant: Seebalack (supra) paragraphs 16-17. 18. The Claimants accept that promptitude in bringing the application is dependent on the factual circumstances of the case. However, it was contended that the Second Defendant failed to plead its case in December 2010 and continued in breach of the Rules until the Claimants brought this to the Second Defendant s attention in June 2014. Further, it was Page 7 of 17
submitted that the Second Defendant has not proffered any good explanation for the change not having been made prior to the first CMC. 19. In considering the factors set out in Rule 20.1(3A), it was submitted that: a. Having regard to the administration of justice, allowing the amendment more than 3 years after the Second Defendant became a party to proceedings and when the Claimants had been previously refused an application to re-amend its Statement of Case on the ground of lack of promptness, would be to deal with the parties unfairly and encourage disregard of the rules of pleading; b. While the Second Defendant had denied responsibility, it now proposes to not dispute certain facts relating to treatment of the Second Claimant (para 51(e)) of the Claimants submission. This, the Claimants say amounts to factual inconsistencies with what has been certified as the truth. c. The change is not necessary because of any circumstances which became known after the first case management conference. d. It is not known whether the trial date would remain unaffected. It was argued that to allow the amendment would be to place the burden on the Claimants to prove that services are not available in Trinidad, which the Claimants say should not be the burden. Instead, it is argued that the Claimant need only prove that what is claimed is reasonable. e. Prejudice would be caused to the Claimant as it will now be necessary to obtain expert evidence to deal with the Defendant s case, thus the trial may be extended and further costs incurred. 20. Counsel concluded that refusing the application would not bar the Second Defendant from defending the claim, but simply from adducing evidence in support of a case for treatment in Trinidad and Tobago. Page 8 of 17
First Defendant Submissions 21. The First Defendant adopted all the submissions of the Second Defendant. 22. According to the First Defendant the case on quantum did not become a live issue until liability had been disposed on 21 st January 2013. Further, that there were party to party correspondence between November 2013 and January 2014 where the Defendants informed the Claimants that (1) they did not regard residence in the USA as a reasonable course of action to take, (2) the proper approach to the calculation of damages was on the basis of residence in Trinidad and Tobago, (3) the current and future care needs of the Second Claimant could be provided in Trinidad and Tobago. Thus, the First Defendant contended that the Claimants were aware of the Defendants position prior to the service of witness statements (February 2014) and the service and filing of expert evidence (June 2014). 23. Counsel for the First Defendant submitted that the court ought to consider the state of the pleadings generally. It was noted that the Re-Amended Statement of Case and the Amended Schedule are out of date and/or defective. Further, that the sum pleaded in the Statement of Case is inconsistent with the sum now proffered in evidence. 24. It was also argued that the Claimants pleadings also do not comply with Part 8 and if the amendment is not to be permitted, they ought to be forbidden from relying on the case implicit in the evidence, that is, a case for treatment in the USA. 25. Counsel submitted that the burden of proof is on the Claimants to prove that the damages claimed are fair, just and reasonable, which requires that the Claimants prove it reasonable to move to the USA. It was contended that the starting point therefore is assessment of damages with reference to Trinidad and Tobago cost. Thus, it was submitted that the case cannot be dealt with justly unless and until the Claimants files a Re-reamended Statement of Case. Page 9 of 17
26. The First Defendant also argued that there would be no prejudice to the Claimants as the assessment is a year away and supplemental reports can be filed with respect to expert evidence. 27. Counsel stated that the need to amend the Defences was overtaken by the splitting of the trial into liability and quantum. Further that the need to amend was overtaken by the Claimants conduct in giving the appearance that they too would seek to amend their pleadings. The First Defendant contended that a change in circumstances was the service of witness and expert evidence, since before this the Defendants could not have known what the Claimants care experts would have said were the needs of the First Claimant. In light of this change in circumstances, the First Defendant submitted that the Second Defendant did act promptly in making the application. Second Defendant s submissions in reply to the Claimants submissions 28. Attorney for the Second Defendant submitted that the Claimants Attorney erroneously stated that the court did not defer its decision on the non-compliant Re-Amended Statement of Case issue. In support counsel restated a portion of the court s proceedings Judge: Now- in any event that really goes to quantum doesnt it? Claimants attorney: Yes Judge: I would have to look at it carefully to decide what it is I am going to do. Or if I should do anything in the first place because there is really no application per se before me. In any event, I would prefer to leave the matter until we are dealing with the issue of quantum. Is there any difficulty with that really, I mean it is not going to affect our trial. 29. It was further argued that the Defendant has complied with Part 10 of the CPR since at the time of filing the Defence no Defendants expert had seen the Second Claimant for the purpose of agreeing or disputing medical reports. Thus at the time they could not Page 10 of 17
plead anymore than they did. It was contended that the details of the nature of the case the Defendants had to meet emerged from the Claimants filed witness statements. 30. It was also submitted that there would be no prejudice to the Claimants, contrary to their argument that granting the amendment would mean that they would have to seek additional expert evidence. In this regard, it was stated that the basis of the expert opinion and evidence sought by the Claimants in the first place was that care in Trinidad and Tobago was insufficient or unavailable for the Second Claimant. Good explanation 31. Rule 20.1(3) sets out the threshold requirements for the grant of an application to amend pleadings after the first CMC. The court must find both that there is a good explanation for the change not having been made prior to the first CMC and that it was made promptly to grant the applicant permission to amend. The grant of permission is not automatic even after the requirements in Rule 20.1 (3) are met, the court may grant permission and in considering whether to do so must have regard to the factors set out at Rule 20.1(3A). 32. Owing to the fact that this was a case where the issues of liability and quantum were separated, the court must consider the first CMC to be the first CMC on the issue of quantum. The first CMC was held on the 31 October 2013. 33. Whether a good 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: The Attorney General of Trinidad and Tobago v Miguel Regis Civil Appeal No 79 of 2011. 34. In Roopnarine and anr v Kissoo and ors C.A.CIV.52/2012 Mendonca JA explained: An explanation therefore that connotes real or substantial fault on the part of the person seeking relief cannot amount to a good explanation for the breach. On Page 11 of 17
the other hand a good explanation does not mean the complete absence of fault. It must at least render the breach excusable. As the Court of Appeal observed in Regis, supra, what is required is a good explanation not an infallible one. When considering the explanation for the breach it must not therefore be subjected to such scrutiny so as to require a standard of perfection. 35. The following explanation was given by the Second Defendant and the Claimants in their submissions in fact verified the accuracy of the facts stated below: a. By letter dated 25 th October 2013 the Claimants indicated an intention to seek to further amend their Statement of Case; b. On the 31 st October 2013 the first CMC on quantum was held wherein the court gave directions for filing of evidence on quantum; c. Between 28 th November 2013 and 22 nd January 2014 the parties exchanged further correspondence on the availability of care for the Second Claimant in Trinidad and Tobago; d. On the 14 th February 2014 the Claimants filed and served their witness statements of fact which included evidence in support of making a case that service and facilities for care of the Second Claimant are inadequate or unavailable in Trinidad and Tobago. On the 16 th May 2014 the Defendants filed and served their witness statements of fact including evidence of the service and facilities for care of the Second Claimant available in Trinidad and Tobago; e. On the 17 th June 2014 the Claimants abandoned their position that they would seek further amendment of their pleadings. 36. It would seem therefore, that between October 2013 and June 2014, while the Second Defendant was aware of the Claimants position on a claim for treatment in the USA, they had been operating under the impression that the Claimants intended to amend their pleadings. Thus to make an application to amend its Defence before the 17 th June 2014 would have perhaps been futile, premature and a wasted expense as a further amendment may have been necessary after the Claimants amendment. The Second Defendant s action (or inaction) was due to what had been communicated by the Claimants. Page 12 of 17
37. It is important to note again that the issues of liability and quantum were separated, thus any amendment in relation to the issue of quantum could not be made before assessment had begun. It is to be remembered that the Second Defendant s case had been a denial of liability on the basis that the First Defendant was not its employee at the time of the incident resulting in damage to the Second Claimant. It is evident thus, that subsequent to admission of liability and the commencement of assessment proceedings, there would be a need for the Second Defendant to amend its Defence to reflect the new position of acceptance of liability. 38. In the court s opinion the Second Defendant s decision to delay its application to amend its defence on the possibility that, firstly the Claimants would hold true to their word and apply to further amend their pleadings and secondly, that the application to amend would be granted was perhaps a little presumptuous. 39. In Real Time Systems Limited v Renraw Investments Limited Civil Appeal No. 238 of 2011 it was stated that 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. While the Claimants rely on this in opposition to allowing the Second Defendants the opportunity to amend its Defence at this stage, the court is of the view that it is equally applicable to the Claimants action in abandoning their position to seek further amendment of their pleadings. It appears to the court that the Claimants late indication that they no longer wished to amend their pleadings even after months of correspondence indicating their position with respect to seeking treatment in the USA may have been a strategic move to gain an advantage in the assessment proceedings. 40. As noted above, a good explanation does not mean the complete absence of fault, what is required is a good explanation not an infallible one. Taking this into consideration, the court accepts the Second Defendant s explanation. While the Second Defendant s delay Page 13 of 17
was premised on a somewhat bold belief, it does offer an acceptable explanation in these circumstances. Promptitude 41. There has been no dispute as to the meaning of prompt and in this regard the court agrees with the submission of both parties on the applicable law. Promptitude is influenced by the context and facts of each case. 42. For the reasons explained above, the court considers that in the circumstances, although an application could have been made after the first CMC was held in October 2013, the relevant time from which the court ought to judge the Second Defendant s promptness, is 17 th June 2014 when the Claimant indicated their position that they would not seek further amendment of their pleadings. 43. The Second Defendant s application was made on the 27 th June 2014. In the circumstances already discussed above, the court is of the view that the application was made promptly. Rule 20.1(3A) factors Interests of the administration of justice 44. The court agrees with the submissions of the Second Defendant that the parties are under a duty to further the overriding objective and assist the court in its case management of the matter and in particular, the court s duty to deal with cases justly. Further, the court is in agreement with Counsel s submission that the interest of justice favours granting the application so as to ensure the parties be on equal footing, in particularly in light of the substantial amount of damages involved in the claim. An amendment is required to identify precisely the issues to be addressed and the parameters of the case. The court is firm in the view that it would go against the grain of the intention of the CPR for the Page 14 of 17
court to deny an amendment at this stage in light of what has previously transpired in this case. Failure of the party or attorney 45. The change has not become necessary because of a failure of the party or his attorney. Factually inconsistent with what is already certified 46. The second Defendant denied liability in the claim. The intended change is not inconsistent with what has already been certified as a denial of liability would necessarily include a denial of all quantum claims. The court notes here that contrary to the submissions of the Claimant, the Second Defendant was not in breach of Part 10. The Second Defendant denied the claim and set out their alternative explanation that is to say that the First Defendant was not its employee. Change in circumstances 47. The court is of the view that there had been a change of circumstances after the first CMC when the Claimants suddenly abandoned their position that they would seek further amendment of their pleadings on the 17 th June 2014. Prior to this, the Second Defendant believed that an amendment to its Defence would have been required subsequent to the Claimants application to further amend their pleadings. Trial date can still be met 48. The trial dates are scheduled for July 2015, therefore there is no reason why the dates cannot be met. Counsel for the Claimants argued that to allow the amendment would be to endorse the placing of the burden on the Claimants to prove that services are not available in Trinidad, while it ought to be that the Claimant need only prove that what is claimed is reasonable. The court does not agree that this would be the result of the Page 15 of 17
amendment. The Defendant would not be proffering a case for treatment in Trinidad, but merely defending the claim that treatment in the US is reasonable having regard to that which is available in Trinidad. Further, it cannot be said that to allow the application after denying the Claimants prior application to amend its Statement of Case is prejudicial as argued by Counsel for the Claimants. The Claimants previous application to amend was decided on its own facts and circumstances and ought not to be considered in this entirely separate application based on entirely different circumstances. Prejudice if permission is granted or refused 49. The court is of the view that denying the application would result in greater prejudice to the Second Defendant. Expert evidence has already been filed by all parties. This evidence already includes evidence on the availability of treatment within Trinidad and Tobago and outside. While it may be true that supplemental evidence may become necessary, if the application is not granted the effect would be to deny the Second Defendant of reliance on the evidence already filed setting out a case that reasonable treatment would involve treatment in Trinidad. Thus, it would be that the Claimants are given an unfair advantage in being the only party allowed to adduce evidence of reasonable treatment. It is to be noted that contrary to the Second Defendant s submission that the Claimant did not plead a case for treatment in the USA, it is to be noted that in the Re-Amended Statement of Case filed on 24 th March 2010, the Claimants stated that the Second Defendant receives care in both the USA and Trinidad and Tobago. Further, in a medical report by Dr. Parag dated 4 th March 2007 annexed to the Re-Amended Statement of Case (not 3 rd April 2007 as stated by the Claimants in submissions: see Annex 2 of the Re-Amended Statement of Case), it was stated that care in Trinidad and Tobago is limited in terms of rehabilitation/neurodevelopmental therapy. The doctor advised that the Claimants visit a centre in the USA for consultation and further testing and initiating stimulation therapy. Page 16 of 17
50. All things considered therefore, the court is of the view that the application ought to be allowed. The order will therefore grant permission to the Second Defendant to file and serve an amended Defence and the parties shall be heard on the issue of costs. Dated this 30 th day of September 2014. Ricky Rahim Judge Page 17 of 17