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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO: CV2012-04357

BETWEEN

INGRID ISAAC CLAIMANT

And

THE CARIBBEAN NEW MEDIA GROUP LIMITED

DEFENDANT

Before the Honourable Madame Justice C. Pemberton Appearances:

For the Claimant: Mr. R. L. Maharaj, S.C. and Ms. V. Maharaj instructed

by Ms. N. Badal

For the Defendant: Mr. R. Martineau, S.C., Mr. G. Ramdeen and Mr. K.

Ramkissoon instructed by Ms. R Jaggernauth

DECISION

[1] INTRODUCTION

At the heart of the matter is whether the Claimant, Ms Ingrid Isaac, is

entitled to separation benefits from her former employers in the sum which

she has claimed.

[2] By letter dated March 19th, 2009 Ms. Isaac secured employment for a term

of 5 years with the Defendant, The Caribbean New Media Group Limited

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(CNMG) in the position of Chief Executive Officer (CEO). This contract

contained the usual terms, such as salary, hours of work, sick and

vacation leave eligibility for bonuses and termination. It is the termination

clauses that have brought the parties to court.

[3] After May 24th 2010 there was a change of Government in Trinidad and

Tobago. Ms. Isaac continued in employment with CNMG. On September

27th 2010, Ms Isaac tendered her resignation to the then Chairman, Mr.

Marlon Holder. She based her termination and conditions thereto on

Clause 13 of her existing contract. Her resignation was to be effected

from October 27th 2010. She did not receive her terminal benefits in

accordance with Clause 13 of the said contract despite her sending follow

up letters and making approaches to secure her terminal benefits.

Instead, Ms Isaac was informed that legal advice to CNMG dictated that

she was not entitled to the terminal benefits as she claimed based on inter

alia, that Clause 13.3.3 was “void for illegality as being contrary to public

policy and/or is unenforceable as amounting to a wagering contract1”.

[4] Ms Isaac did not accept this lightly and on October 23rd, 2012, she

instructed her Attorneys-at-Law to file this action on her behalf. A series

of events followed, culminating in this Application before the court.

[5] THE JOURNEY

On October 26th, 2012, proceedings were sent by mail to CNMG at its

registered office. The documents were delivered on October 30th, 2012.

This constituted proper service. CNMG failed to enter an Appearance

within the time stipulated by the CPR. Ms Isaac’s Attorneys-at-law filed a

Request for Entry of Judgment in Default of Appearance. Technical

1 See Exhibit “E” to the Statement of Case filed 23

rd October, 2013 – Letter to Ms Isaac from Mr Ken Ali –

Interim Chief Executive Officer, CNMG.

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difficulties did not favour success of that Application allowing CNMG to file

its Appearance on December 5th 2012.

[6] On January 28th, 2013, Ms Isaac’s Attorneys-at-Law filed a fresh request

for a Judgment in default, this time of Defence. This met with instant

success. By letter of demand dated March 4th 20132, CNMG was

informed that the Court granted Judgment for the Claimant in default of

Defence against the Defendant and ordered payment of the judgment

sum.

[7] On April 25th, 2013 some three (3) months and three (3) days after Ms

Isaac secured her default judgment, CNMG filed this application to set it

aside on several grounds including the following:

that on the 5th of December 2012 a Customer Service

Representative at the Hall of Justice advised that the only

documents filed in the matter were the Claim Form and the

Statement of Claim;

that on the said 5th of December 2012 Ms Badal ( Ms Isaac’s

Instructing Attorney-at-Law) advised that she had filed a request

for Judgment in Default of Defence that very morning and could not

grant an extension of time to file for serving the Defence.

Instructing Attorney however enquired of the possibility of

withdrawing the request for the Default Judgment and Ms Badal

advised that she would confer and revert;

that Ms Badal did not revert on the issue of an extension of time to

file its Defence until the letter dated March 4th 2013 when CNMG

was advised that Judgment in Default was granted on January

28th, 2013;

2 See Exhibit”I.I.9” to the Affidavit of Ms Isaac filed on 24

th June 2013 in opposition to this Application.

This letter was written to Instructing Attorney-at-Law for CNMG by Ms Isaac’s Instructing Attorney-at-

Law, and contained the demand to CNMG to “immediately pay to the Claimant the sum of $2,147,099.9”

being the judgment debt and statutory interest. (Emphasis mine).

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that the Defendant had a realistic prospect of success in its defence

on the grounds to be later discussed.

[8] On 26th June, 2013 at the Case Management Conference (CMC), I

ordered that both parties file submissions addressing in the main, Part

13.3(1) (a) since the provisions of Part 13.3(1) (b) could be dealt with by a

thorough and in depth examination and analysis of the affidavit evidence

provided by the parties.

[9] CPR PART 13.3

It may be instructive at this juncture to set out the procedural mores

against which this Application must be pitted, the CPR Part 13.3. Part 13

of the CPR 1998 states clearly the provisions applicable for setting aside a

default judgment. There are two:

the defendant has a realistic prospect of success in the claim, and

the defendant acted as soon as reasonably practicable when he

found out that judgment had been entered against him.3

(Emphasis mine)

[10] It is now accepted that a Defendant, in this case, CNMG must

satisfy both limbs, the “realistic prospect of success” test and the

“as soon as reasonably practicable” test to succeed in this quest.

These are strict preconditions for a successful application to set

aside a judgment.4

3 CPR 1998, Part 13

4 See Barrow J.A. in KENRICK THOMAS V. R.B.T.T. BANK CARIBBEAN LTD. CV 2008 – 02475

The language that the rule makers chose to frame Part 13.3(1) was considered and

deliberate; there is no possibility that its purport was unintended. Litigants and lawyers

must now accept that CPR 2000 has gone significantly further than the English rules in the

hardening of attitudes towards the lax practice that previously prevailed in relation to the

setting aside of default judgments which was an identified abuse that the new rules were

intended to correct. The adherence to the timetable provided by the Rules of Court is

essential to the orderly conduct of business and the importance of adherence is

reflected in the CPR 2000 imposing pre-conditions for setting aside a default

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[11] Before I go further, I must state that in this case, the governing Rule

for entering a default judgment is Part 12.4. This is what is

colloquially called “an over the counter” judgement, one which the

court office “must enter for failure to defend” once it is “satisfied”

that the claim form and the statement of claim have been served,

an appearance has been entered, the period for filing a defence

has expired and the defendant has not either served a defence or

has admitted the claim or has not satisfied the judgment. The court

must set aside the judgment if entered under Part 12.4 only if

those conditions were not met, but it may set aside the judgment

on grounds which are under discussion in this case. The point is

that it is the defendant’s defence which is up for scrutiny. This is not

a case in which the Claimant has sought permission of the court to

enter judgment.

[12] 1. PART 13.3(1) (a) CPR

DOES THE DEFENDANT’S DEFENCE HAVE A REALISTIC

PROSPECT OF SUCCESS?

The Court is not required to hold a mini trial, but to analyse the facts to

see if sufficient and convincing material were put to the Court whether by

way of draft defence or by affidavit that can lead to a conclusion that the

Defendant has a realistic prospect of success in his defence. I framed this

issue as follows:

Whether the facts as pleaded give rise to the conclusion

that the defence has a reasonable prospect of success?

There are two issues to consider:

A. did the change in the government on May 24th 2010 constitute a

change in control of CNMG?; and

B. does the contra proferentem Rule apply in this case?

judgment. If the pre-conditions are not satisfied the court has no discretion to set

aside.(Emphasis mine)

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[13] Ms. Isaac’s claim is housed in the interpretation of Clause 13 of her

contract. It may be instructive to set out that Clause, the focal point of this

case.

13. Termination:

1. This agreement may be terminated by either party giving to

the other in writing three (3) Months notice of termination.

2. Termination Without Cause or Constructive Termination

Without Cause:

Where:

(a)...

(b)...

(c) You choose to terminate your employment with the

Company in accordance with the provisions of Clause 13.3

you will be entitled to (entitled to) the immediate payment of

-

...

Change in Control:

For purposes (of) this Contract the term “Change in Control”

means:

a) a change in the administration of the Government of

Trinidad and Tobago;

b) regulatory action taken against the Company such that

the future economic viability of the Company is made

impossible or the Chief Executive Officer and the

Board are no longer permitted to manage the day-to-

day operations of the Company...

13.3 TERMINATION FOR CAUSE BY THE CHIEF EXECUTIVE

OFFICER

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You may elect to terminate your employment by giving the

Company not less than thirty (30) days written advance

notice of termination for the following reasons:

1. The Company fails to pay to you at the time and in the

manner provided for under this Agreement;

2. The Company commits any breach of its obligations

under this Agreement;

3. There is a material Change in Control in the Company.

[14] A. ENFORCEABILITY OF CLAUSE 13.3.3

(i) THE CLAUSE IS VAGUE AND UNCERTAIN AND/OR

MEANINGLESS?

Let me start by saying that it is of note that the draft defence does not

mirror the ground of “meaninglessness” argued in the Submissions. One

might say that it is a question of semantics, but one may argue that the

words “vague and uncertain”5 do not carry the same meaning as

“meaningless”. Be that as it may, I shall consider the issue in light of the

enforceability or unenforceability of Clause 13.3.3 on whatever grounds,

thereby leaving the rest of the contract intact, which is the crux of this

matter.

[15] CNMG’S SUBMISSIONS

In addressing “whether the change in administration of the government of

Trinidad and Tobago on May 24th 2010 constitutes a material change in

control in the Defendant”6, Counsel submitted that based on T & N LTD

(IN ADMINISTRATION) V ROYAL & SUN ALLIANCE PLC and

CHARTBROOK LTD. V PERSIMMON HOMES LTD7 Clause 13.3.3 is

meaningless. Counsel argued that “Where a wholly meaningless clause

is contained in a contract it may be ignored”. Counsel further posited “that

5 See paragraph 10 of the Draft Defence.

6 Defendant’s Submissions. Para. 3. Jul. 10, 2013.

7 [2003] 2 ALR (Comm) 939; [2007] 1 ALR (Comm) 1083.

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the Clause (words?) is (are?) uncertain and invalidate(s) that particular

clause Nicolene Ltd. v Simmonds8. Accordingly, Clause 13.3.3 in the

contract can be ignored and is devoid of any meaning. The words

constitute an unintelligible collocation of ordinary English words. ‘It is a

farrago of nonsense’. Moreover Clause 13.3.3, construed by using the

definition, has no application to the circumstances in which it was written.

How can change in the administration of the government of Trinidad and

Tobago amount to a change in the control of the company! Far less a

material change in control of the company”.9

[16] MS. ISAAC’S SUBMISSIONS

In interpreting the phrase “reasonable prospect of success” Counsel

referred the Court to Moosai J. in JOHN v MAHABIR10 and Seepersad J.

in HYACINTH SEATON v RANDY GLASGOW PRODUCTIONS LIMITED

& THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO FOR THE

MINISTRY OF SPORTS AND YOUTH AFFAIRS11. In the latter case,

Seepersad J. noted that evidence was the determining factor as to

whether there was a realistic prospect of success. Counsel therefore

concluded that CNMG does not have a reasonable prospect of success its

defence. I shall give a synopsis of the grounds:

(1) There is no dispute on the relevant and material facts and the

question whether the Defendant has a reasonable prospect of

success depends entirely on a question of law.

(2) There was an obvious change in control within the plain and

ordinary meaning of the contract; the Claimant relied on the

change in administration in her resignation letter and in the

8 (1953) 1 QB 543. The court made these suggestions to better understand the submission. If I am wrong,

mea culpa. 9 Id. at para. 4.

10 H.C.A. NO. 866 OF 2005 ““a realistic prospect of success means that the defendant has to have a case which is better than merely arguable”;

11 CV 2011-02492

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circumstances she cannot be treated as having repudiated the

contract;

(3) The words “material change in the control of the Company” are

certain, clear and definite. The term is not vague or uncertain.

[17] ANALYSIS AND CONCLUSIONS

Where Ms Isaac says that there is no dispute on relevant and

material facts, I beg to differ. This case turns on the meaning of the

words “change in control” and “material change in control”

contained in the Clause in the contract. Are they full of meaning;

are they ambiguous; are they vague and uncertain as stated in the

draft defence or are they meaningless as argued in Counsel’s

submissions? These are important questions to determine the

enforceability of the disputed clause and can be answered only

when evidence of parties is received.

[18] One must examine the mind of the parties at the time of entering

the contract containing the offending clause. I agree with Lawrence

Collins J. that it is not permissible to engage in a foray into previous

negotiations and the parties’ declarations of subjective intent save

in an action for rectification. That is not the case here. The

evidence here would be limited to that point in time when the

contract was entered into by the parties, CNMG and Ms Isaac. In

fact, the question of estoppel may arise. One must examine also

the mind of the parties at the time that Ms. Isaac tendered her

resignation to Mr. Marlon Holder, and at the time her resignation

became effective, during the tenure of interim Chairman Mr. Ken

Ali.

[19] This is one case that the totality of the relevant circumstances must

be examined so as to arrive at a true construction of the clause. It

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is only then that the Court can determine whether the clause

“contains words which are clear and unambiguous”12, and therefore

enforceable or whether there exists “very exceptional

circumstances...for them not to be given effect in accordance with

those terms”13 and therefore unenforceable.

[20] In the circumstances and on that basis I am inclined to the view that

the defence raised by CNMG that the clause is “vague and

uncertain” is arguable. However, the CPR has raised the bar. One

must not have merely a good arguable case but a case that has a

reasonable prospect of success. This has to be tested by

considering the evidence that could reasonably be expected to be

adduced at the trial. I would not and I might add, could not

speculate or advise CNMG about the evidence that may be brought

in support of its defence. What I am to consider is whether it can

reasonably bring that evidence. I am of a mind to allow CNMG to

defend this case on that ground.

[21] ii) THE CLAUSE IS A BREACH OF PUBLIC POLICY AND IS

INJURIOUS TO GOOD GOVERNMENT AND AN INDUCEMENT

TO AN EMPLOYEE OF A PUBLIC BODY TO NEGLECT HER

OBLIGATIONS TO PERFORM HER DUTIES UNDER THE

CONTRACT?

CNMG’S POSITION

This was not really addressed in any meaningful way by CNMG in

its submissions, but having perused the exhibits to the affidavits, I

became aware that CNMG relied on Counsel’s advice and in fact

put in their draft Defence that the contract was void and

12

Per Lawrence Collins J. in The T&N Case. Para. 190 letter j. 13

Refer to fn 10.

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unenforceable as a wagering contract and further that the Clause

was in breach of public policy as contained in the heading.

[22] MS. ISAAC’S POSITION

Counsel’s submissions were brief. They were as follows:

(1) Clause 13.3.3 is not contrary to public policy as claimed by

CNMG. The authority quoted bears no application to this case.

(2) The contract was not a wagering contract.14

[23] ANALYSIS AND CONCLUSION

Whether or not the clause in the contract is a wager, I do not think

that CNMG has far to go with this issue. Should I allow them to

defend, I should think that this arm would be abandoned. Further

on the issue of whether the clause offends public policy and is

injurious to good government, I express similar sentiments. As to

whether the clause imposes an unconscionable penalty, that too is

a matter of evidence, but I hasten to make this observation, there is

nothing pleaded by CNMG in its draft defence to suggest that Ms

Isaac placed the term there herself or any facts to demonstrate that

if the clause were to be enforced that an unconscionable penalty

would be the result. There is no prospect, reasonable or otherwise

of success on this ground. The Application would therefore fail.

[24] B. THE CONTRA PROFERENTEM RULE

CNMG’S POSITION

In directing the Court’s attention to the contra proferentem rule

Counsel cited Sir Kim Lewison15 and drew from him that the use of

this Rule that “the words of documents are to be taken strongly

14

Claimant’s Submission. Para. 18. Jul. 10, 2013. 15

THE INTERPRETATION OF CONTRACTS Sir Kim Lewison at pages 261, 265 and 268

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against the one who puts them forward" is to be confined to those

situations in which the words to be construed are ambiguous rather

than meaningless. Counsel further opined that the application of

the Rule is not free from difficulty in that it may be difficult to

determine to whom the Rule refers, as it may refer to any of the

following persons:

(1) the person who prepared the document as a whole;

(2) the person who prepared the particular clause;

(3) the person for whose benefit the clause operates.16

…

Lewison opined that “Perhaps the most that can be said is that

the court will resort to the maxim where the justice of the case

demands it”. 17

[25] In the circumstances, Counsel advised against the use of the Rule in this

case and urged as a matter of law that the clause prayed in aid by Ms

Isaac is “meaningless” as opposed to “ambiguous”. In the circumstances,

CNMG did not breach any term of the contract and as such, has a good

prospect of success at defending the action thereby satisfying part of the

test contained in Part 13.3 of the CIVIL PROCEEDINGS RULES 1998

(CPR, 1998).

[26] MS. ISAAC’S SUBMISSIONS

Counsel’s retort to CNMG’s interpretation of the Rule and its application to

the contract under consideration was: “that is an absurdly obstructive and

over-literalist reading of the contract”18 Clause 13.3.3 is not meaningless.

In any event, even if it were, this court should follow the lead of the court

16

Id. 17

Id. 18

Claimant’s Written Submissions in Reply. Para. 4. Jul. 23, 2013.

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in the SIMMONDS19 case. In that case, the concept of “meaninglessness”

should be constrained to circumstances when “it is impossible to make

sense of it”, that is, the clause under consideration. The thinking of the

SIMMONDS’s court urged on this court is as follows:

Rather than find it meaningless, we should strive to find out

what was really intended – by amending the punctuation, or

by supplying words, and so forth. In our present case much

can help can be found by looking at similar clauses in the

use of the shipping trade.

[27] Further, according to Counsel, “there is no dispute that the contract

was drafted by the Defendant and presented to the Claimant. If the

words used give rise to any anomalies and contradictions the result

can be regarded as ambiguity and in that situation the party who is

responsible for the drafting must bear the burden of the result. The

justification for the contra proferentem rule is that “a person who

puts forward the wording of a proposed agreement may be

assumed to have looked after his own interests so that if the words

leave room for doubt about whether he is intended to have a

particular benefit there is a reason to suppose that he is not”.20


I agree with Counsel that the contra preferentem rule may be confined to

situations in which the words are ambiguous rather than meaningless.

However, where is the uncertainty or ambiguity in the words contained in

Clause 13.3.3? Is this a case where the Court will have resort to the

maxim where the justice of the case demands it? All of these questions

cannot be answered in the absence of evidence. It is clear to that in order

19

1 QB 543. 20

See Chitty on Contracts, page 859, Vol 1, 30th

Edition. (Tab 5 of the Claimant’s Bundle of Authorities

filed on the 10th

July, 2013.

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for justice to be done, that this matter may well benefit from a full

ventilation of these issues at a trial. The Application may succeed on this

ground.

[29] Even if I am minded to permit CNMG to defend there is the obvious

stumbling block: that of the procedural issue: PROMPTITUDE IN MAKING

THE APPLICATION TO SET ASIDE.

[30] 2. PART 13.3(1) (b) CPR

DID THE CNMG ACT AS SOON AS REASONABLY PRACTICABLE IN

FILING THIS APPLICATION?

CNMG’S SUBMISSIONS

CNMG’s submissions set out a chronology of the events between 23rd

October, 2012, the date the Statement of Case was filed, and the 25th

April, 2013 the date of the Application to Set Aside the Default

Judgment.21 Various events culminated in CNMG ‘s being unable to meet

the mandated filing deadlines, which included administrative queries

concerning the Request for Default Judgment, illnesses of both Senior and

Junior Counsel, previous professional commitments of both Senior and

Junior Counsel and a death in the family of Junior Counsel.

[31] Counsel made submissions to the Court regarding whether the CNMG

acted as soon as reasonably possible in making the Application to set

aside the judgment. Counsel referred the Court to several cases which

speak to how a court should treat with this test22.

21

Defendant’s Submissions. Para. 2. Jul. 10, 2013. 22

CV 2007-01867 WILFRED DES VIGNES V. JOCELYN MANNING & KEN GORDON.

CV 2011-02492 HYACINTH SEATON V. RANDY GLASGOW PRODUCTIONS LIMITED & THE

ATTORNEY GENERAL OF TRINIDAD AND TOBAGO FOR THE MINISTRY OF SPORTS AND

YOUTH AFFAIRS.

CIV. APP. NO. 55 OF 2011 MARCELLA ZAMORA V. THE ATTORNEY GENERAL OF TRINIDAD AND

TOBAGO.

CV 2008-04227 ROSLYN BAPTISTE, GLORIA BAPTISTE & SHIRLEY BAPTISTE V. JOSEPH

ALEXANDER.

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[32] Counsel noted that Ms Isaac’s Attorneys failed to communicate whether it

would be possible to withdraw the Request for Default Judgment and

instead, “the Claimant’s Attorney proceeded to withdraw the Request for

Judgment in default of Appearance on 28th January, 2013 and file a

Request for Judgment in Default of Defence on the same day”23. This

action was equated to those addressed by Stollmeyer J.A. in JOEL

ROBERTS24 where he mused “one party takes hold of a procedural

default by the other to obtain an advantage”.

[33] Counsel submitted that in the Court’s consideration of the application to

set aside the judgment, it must evaluate the actions of CNMG from the

time that it had knowledge of the default judgment, by letter dated 4th

March, received on the 7th March, 2013. The following is the activity list

for the Court’s consideration:

11.03.2013 Letter dated 04.03.2013 from Ms. Badal was brought

to the attention of Mr. Ramdeen. Ms. Jaggernauth

was unable to bring it to the earlier attention of both

Mr. Martineau S.C. and Mr. Ramdeen as they were

both involved in the Commission of Enquiry in the

failure of CL Financial Limited et al and the Hindu

Credit Union Cooperative Society Limited. Mr.

Martineau S.C. was Counsel to Price Waterhouse

Coopers in Commission of Enquiry and Mr. Ramdeen

was Counsel to Commission in Commission of

CIV. APP. NO. 70 OF 2010 JOEL ROBERTS V. THE ATTORNEY GENERAL OF TRINIDAD AND

TOBAGO.

CV 2009-02311 ROHINI KHAN V. NEVILLE JOHNSTON.

CIV. APP. NO. 56 OF 2011 ROHINI KHAN V. NEVILLE JOHNSTON.

CV 2011-00962 DELORA BUCKRADEE (AS ADMINISTRATOR PENDENTE LITE OF THE ESTATE OF

SELWYN BUCKRADEE) V. WINSON BUCKRIDEE NAIDOO (AS EXECUTOR OF THE ESTATE OF

MOONSIE NAIDOO). 23

Defendant’s Submissions. Para. 19. 24

CIV. APP. NO. 70 OF 2010.

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Enquiry.

13.03.2013 Mr. Ramdeen fell ill.

16.03.2013 Mr. Ramdeen was hospitalized.

22.03.2013 Mr. Ramdeen requested Ms. Jaggernauth to inform

Mr. Martineau S.C. of his illness.

22.03.2013 Ms. Jaggernauth tried to contact Mr. Martineau S.C.

but was advised by his secretary that he had left the

jurisdiction to undertake the second eye surgery.

25.03.2013 Mr. Ramdeen returned to chambers.

29.03.2013 Mr. Martineau S.C. returned to the jurisdiction.

03.04.2013 Mr. Martineau S.C. returned to the office but was

restricted in reading due to the second eye surgery.

17.04.2013 Mr. Martineau S.C. resumed work properly.

20.04.2013 Mr. Ramdeen’s grandmother passed away.

22.04.2013 The Defendant retained a second Junior Counsel Mr.

Kelvin Ramkissoon.

23.04.2013 Mr. Ramdeen returned to the office.

25.04.2013 The Defendant filed an Application to Set Aside the

Default Judgment.

24.06.2013 Affidavits of Ms. Nyala Badal and the Claimant filed.25

The delay in the application to set aside the judgment was as a result of

both Senior and Junior Counsel’s physical indispositions and Junior

Counsel’s for which the Court extends its own condolences. Counsel

highlighted the fact that CNMG even hired additional Counsel to assist in

handling the matter.

[34] MS ISAAC’S SUBMISSIONS

Counsel, on this aspect, submitted that CNMG did not act with urgency.

CNMG took two months after knowledge of the default judgment before

25

Defendant’s Submissions. Para. 18.

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they filed the application. The reasons advanced for the delay are

insufficient to satisfy the Court. The reasons proffered are as follows:

(1) CNMG’s Attorneys failed to follow up with Ms Isaac’s Attorney to

find out what was the status of the case. CNMG at that time was

aware that they were out of time with the application. Additionally,

time began running from the time of default judgment on 28th

January, 2013 as opposed to the written communication between

Ms, Badal and CNMG on 4th March 2013.

(2) Even though an oral extension for time was requested by CNMG in

December, though not granted, and the judgment was not entered

until 28th January, 2013, CNMG did not file a request for an

extension of time. There was no evidence as to why the defence

was not drafted between October 2012 and December 2012 or why

Senior Counsel was required to draft the defence. Additionally,

alternative Counsel could have been sought so as to deal with the

matter urgently.

(3) CNMG offered no explanation for the lack of attention to the matter

between 28th January, 2013 and 7th March, 2013 – a five week

period – when no attention was paid to the matter at bar.

(4) The various difficulties encountered by Senior Counsel and Junior

Counsel do not justify CNMG’s delay in filing the application to set

aside judgment26

Counsel submitted that CNMG’s evidence “suggests that there was wilful

delay and/or default”27 After months of delay, the Defence took only three

days to draft and closely mirrored the written communication which was

sent to Ms Isaac prior to the filing of the action.

26

Id. at para. 23. 27

Id. at para. 24.

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[35] Counsel distinguished this matter from JOEL ROBERTS v THE

ATTORNEY GENERAL OF TRINIDAD AND TOBAGO which was heavily

relied upon by CNMG. Unlike those circumstances Ms Isaac did not try to

obtain a procedural advantage over CNMG. Ms Isaac’s Attorneys simply

informed the other side of the filing of the application for default judgment.

Counsel submitted that CNMG did not take this opportunity to file any

applications for extension of time to file a defence even though they had

every opportunity to do so. Counsel relied on JOLENE MURRAY v IAN

ISAAC AND LAURA ISAAC28 and the musings of Mendonca J.A. that

“talks” between parties would not relieve CNMG from its obligations under

the CPR 1998. CNMG did not demonstrate that it has a reasonable

prospect of success or that it acted as soon as reasonably practicable in

filing the application to set aside the default judgment. The Application as

filed should therefore fail.


The strictures are clear. Under the CPR 1998, if a defendant fails to

satisfy the requirements of the second test then the application to set

aside the default judgment will fail.

[37] Part 13.3(1)(b) states that the relevant period to assess promptitude

must commence from the time that the defendant found out that a

default judgment had been entered against him until the date of the

filing of the application for leave to set aside the default judgment.

The relevant date in the case at bar is 7th March 2013. I am guided by

both Barrow J.A. and Mendonça J.A.29 in determining this issue. Let me

state at the onset that this case differs from JOEL ROBERTS, in that the

28

CIV. APP. NO. 215 of 2009 29

JOLENE MURRAY V. IAN ISAAC AND LAURA ISAAC,

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Court was asked to consider Part 26.7 issues, of which promptitude is one

and not Part 13.3(2) in which a slightly different approach is mandated.

[38] In furthering the overriding objective and it is each party’s duty to their

clients, the Court and the justice system to act with expedition and to

adhere as far as necessary to the provisions of the CPR. The burden to

demonstrate the veracity of this application is placed squarely upon the

Defendant. Though not insurmountable, the threshold is high and must be

supported by substantive affidavit evidence. Ms Jaggernauth was the

Instructing Attorney-at-Law and she filed an affidavit in support of the

application.

[39] Mendonça J.A. in NIZAMODEEN SHAH stated that “the obligation (of the

Appellant is) to put some material before the Court on which the Court can

come to the conclusion that he has acted as soon as reasonable

practicable”30. In the MURRAY case, Mendonça J.A. opined as follows:

One has to detail the efforts made and what really are the

facts or the matters that have engaged you, to come to the

conclusion that you acted as soon as reasonably practicable.

[40] Let us examine the affidavit to assess the facts and matters to determine

whether CNMG acted as soon as was reasonably possible. Human

beings are not the authors of their destinies. Attorneys-at-Law are no

different and cannot always provide for all the varying scenes of life.

However, in civil litigation and in this case in particular, timing and actions

are crucial. There was a time lapse of one (1) month and nineteen (19)

days between the knowledge of the default judgment and the application

to set it aside. The number of days, whilst significant, is to my mind but

30

CV 2008-02475.

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one of the factors to be examined. The actions by Attorneys-at-Law over

the period of time are more telling in this case.

[41] In that regard, there is nothing to tell the court what steps were taken by

her between 7th March, 2013, when Instructing Attorney-at-Law received

word of the default judgment and 11th March, 2013, her first

communication to Junior Counsel. There is no account of what efforts

were made by her to contact either Counsel. Simply to say that the efforts

bore no fruit is not enough.

[42] Further there is no detail as to when the deponent received word of Mr

Ramdeen’s illness and hospitalisation, other than that she was informed of

these unfortunate occurrences by him and verily believed them to be true;

no information is forthcoming as to what steps were taken by her as

CNMG’s representative until 22nd March 2013, when she had to perform

certain duties in relation to Senior Counsel. What happened to the

Application to set aside the default judgment in the face of these

regrettable circumstances?

[43] What is left unexplained as well is what happened between the times that

Junior Counsel asked Instructing Attorney-at-Law to contact Mr Martineau

S.C. and her conversation with Senior’s secretary (undated) during which

she ascertained that Senior was out of the jurisdiction since 24th March,

2013? These time lapses are crucial and the court is still in the dark as to

any reasonable explanation of them.

[44] Again, there is no detail as to when Senior’s return to the jurisdiction

became known to Instructing Attorney-at-Law and his predicaments told to

her. We are made aware of the events and circumstances befalling

Senior and Junior Counsel, but what about Instructing Attorney-at-Law?

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[45] The CPR is there, clear and unambiguous, just and equitable. It does not

engender a climate of procedurally advantageous behaviour by any party.

The facts are plain. CNMG did not file its Defence on time. The Court

must be informed of the efforts taken, the nature of those efforts and the

frequency of those efforts to bring such a crucial letter to Counsel’s

attention. There is no explanation as to why an Application to set aside

was not filed, even with a bare affidavit. A further affidavit could have

been filed later in time, and if not, the Court’s permission could have been

sought so to do. It is not enough. I have seen no real efforts made to

comply with the CPR. Further, may I state that it is not Ms. Isaac’s or for

that matter, any Claimant’s responsibility to ensure that CNMG or any

Defendant fulfils its responsibility under the CPR.

[46] The authorities are clear. I cannot accept Attorneys’ illnesses without

more as justification for the delay in attending the Application to set aside

the judgment in Default of Defence. CNMG could have done more to

ensure that the Application to set aside was treated with more urgency

than attended it. Unfortunately, on a reading of Ms. Jaggernauth’s

affidavit, there was nothing to convince me that CNMG acted in a

reasonably timely manner in the filing of the Application to set aside the

judgment in Default of Defence. As such, CNMG fails to satisfy this test.

[47] RESPONSIBILITIES OF COUNSEL AND INSTRUCTING ATTORNEYS-

AT-LAW

Far be it from this Court to provide guidance to Senior Counsel. I have

noticed however a creeping confusion on the roles of Junior Counsel and

Instructing Attorney-at-Law in recent times. Junior Counsel’s role is to

take the bulk of the “running around” and procedural matters from Senior

Counsel’s plate, save in the most extreme of circumstances. She/He must

research the law, ensure that all documentary evidence and letters are

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noted to Senior Counsel and must provide Senior with drafts and papers

for his vetting and approval.

[48] Instructing Attorneys-at-Law are the procedural giants. They must have

more than a working knowledge of the CPR. They must be au courant

with timelines and come up with creative methods of ensuring compliance

with the CPR, even preparing and providing documents for filing in a form

that may be later amended or supplemented when Counsel has advised.

It is not enough to say that “you tried to get in touch with Counsel but you

could not”. Further, one cannot place reliance on information from the

Customer Service Representative of the Court without more. This must be

followed up by a diligent search of the court file by Instructing Attorney-at-

Law’s offices, especially when time is on the essence. There is no reason

why Instructing Attorneys-at-Law cannot be proactive and secure their

clients’ interests with diligence and professionalism. Instructing Attorneys-

at-Law must be ever careful to note all actions that are taken during these

crucial periods so that they have a proper record to reproduce in cases

such as these.

[49] In any litigation, a prospective defendant’s knowledge is born on the date

of receipt of the Pre-Action Protocol letter. This is now an integral part of

the litigation process and not simply a popular tool to be trotted out as

one’s convenience dictates. Time pursuant to the rules of procedure

begins to run from the date of the service of the Claim Form. It is at this

juncture that all parties are put on a strict time frame contained in the CPR

1998. This of course is subject to extension of time to file Defence by the

Claimant and/or extension of time to file Defence granted by the Court

thereafter. Talks among parties whilst to be encouraged do not interfere

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or cannot shift the requirements of the CPR31. That luxurious commodity,

time, is no longer on the market for the defaulting defendant or the

defendant already running afoul of his obligations, in this case, under Part

10 of the CPR and moreover, one who is trying to make amends afforded

under Part 13.3(1)(b).

[50] CONCLUSION

The question of CNMG’s “reasonable prospect of success” is hinged in the

evidence of the intention of the parties. It may be argued that CNMG did

not intend for the clause to have any effect as between Ms Isaac and

themselves, and on the grounds proffered for their opting out of the

provisions of Clause 13, but where is that evidence? Is that letter enough

without more? When did they intend to vary Ms Isaac’s contract so as to

exclude that clause? Was this merely a convenient time to seek legal

opinion on the legality of the clause? Can a court allow that to occur on

the grounds of the same public policy that they seek to rely upon? These

are matters; I think that ought to have been ventilated at a trial, but alas!

[51] In the interest of justice, even if the Court were to permit CNMG to

surmount this hurdle, the procedural issue is glaring. CNMG has failed to

defeat the second impediment; that of timeliness in its application to set

aside the Judgment in Default of Defence. There is no manoeuvring

around that fact. Consequently, the CNMG’s Application to set aside the

Judgment in Default of Defence is denied.

31

“The fact that you are talking does not relieve you from the obligation to apply as soon as reasonably practicable.” Per Mendonça J.A. in JOLENE MURRAY v IAN ISAAC and LAURA ISAAC ibid.

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IT IS HEREBY ORDERED AS FOLLOWS:

1. The Defendant’s Application to set aside the Judgment in Default

of Defence filed on April 25th, 2013 is hereby denied.

2. That the Judgment in default of defence entered on 28th January,

2013 do stand.

3. That the Defendant do pay the Claimant’s costs to be assessed if

not agreed.

4. That the Claimant do file her Statement of Costs on or before

October 18th, 2013.

5. That the Defendant do file and serve its response on or before

November 1st, 2013.

6. That Assessment of Costs do take place on December 11th, 2013

at 11:45 a.m. SF02.

Dated this 15th day of August, 2013.

/s/ CHARMAINE PEMBERTON HIGH COURT JUDGE

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