republic of trinidad and tobago in the court of...

of 44

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. S 104 of 2016

Claim No. CV2012- 01144

BETWEEN

ESTATE MANAGEMENT AND BUSINESS

DEVELOPMENT COMPANY LIMITED

Appellant

AND

SAISCON LIMITED

Respondent

PANEL: P. Jamadar, J.A.

N. Bereaux, J.A.

J. Jones, J.A.

APPEARANCES:

Mr. V. Deonarine instructed by Ms. S. Narine for the

Appellant.

Mr. A. Sinanan S.C., instructed by Ms. A. Hasnain

for the Respondent.

DATE DELIVERED: 26th April, 2017.

JUDGMENT

Delivered by Jones, J.A.

1. This action was commenced by an ordinary claim form and statement of case

filed on 19th March 2012. By its claim the respondent, Saiscon Limited,

sought damages in the sum of $39,411,351.00 together with interest and costs

as a result of a breach of contract by the appellant, Estate Management and

Business Development Company Limited, in February 2009. On 31st May

of 44

2012 a defence was filed and on 25th July 2012 the appellant amended its

defence. This amendment was done by the appellant without permission prior

to the first case management conference as it was entitled to do under part

20.1 of the Civil Proceedings Rules 1998 as amended (“the CPR”).

2. On 7th April 2016, some four years after the commencement of the claim, the

trial judge granted permission to the respondent to amend its claim form,

statement of case and reply. This is a procedural appeal from that decision.

This appeal treats with the vexed question of when does the first case

management conference come to an end. In this case the judge determined

that, some four years after the commencement of the claim and six hearings

later, the first case management conference had not as yet come to an end and

that, in the circumstances, the respondent was not required to satisfy him that

it had met the criteria set out in parts 20.1(3) and (3A) of the CPR.

History of the proceedings

3. The history of the proceedings is taken from the written decision of the judge.

These findings of fact have not been challenged in this appeal. In accordance

with part 27.3 (1) of the CPR the court office fixed a case management

conference for 26th July 2012. Between 26th July 2012 and the date when the

notice of application for permission to amend was filed, 9th July 2014, there

were 6 hearings of the case. The matter has not as yet progressed beyond the

case management stage.

of 44

4. On 26th July 2012, the first hearing, permission was sought and obtained for

the respondent to file and serve a reply. The hearing lasted 4 minutes.

According to the judge the case management conference was then adjourned

to 15th November 2012.

5. The second hearing occurred on 15th November 2012. The respondent’s

attorney did not appear on that date. By this time the reply had been filed. On

that date the judge recommended that an engineering firm carry out a

certification of the completed works. This hearing was adjourned to 21st

February 2013.

6. On 21st February 2013, the third hearing, both parties and their attorneys were

in attendance. On that date the judge was advised that the engineering firm

had begun their review and that an offer was expected soon. The hearing was

adjourned to 2nd May 2013. This hearing was however rescheduled upon the

request of the attorneys to 27th June 2013.

7. At the fourth hearing, on 27th June 2013, the judge was informed that there

was a difference of opinion between the parties over some of the items

claimed. The judge then made, what he says were, two recommendations to

the parties. One of these recommendations required the respondent’s quantity

surveyor and the appellant’s engineer to meet and engage in discussions. The

other concerned the payment of the costs of that exercise.

8. That latter recommendation was that the cost of the exercise involving the

quantity surveyor and the engineer be agreed in advance and that, subject to

of 44

counsel’s advice, the appellant pay the cost of the exercise. The purpose of the

discussion and the recommendations was stated by the judge to be: “once

more to identify what could be removed from the court’s purview by mutual

agreement and settled out of court and what could not.” The hearing was then

adjourned to 7th November 2013.

9. Prior to the fifth hearing, on the 14th October 2013, a notice of change of

attorney was filed. This change had become necessary as a result of the

sudden death of the respondent’s instructing attorney. At the hearing of 7th

November, the fifth hearing, the judge was advised that the meeting between

the quantity surveyor and the engineer had not occurred and that the

respondent wished to, but had not as yet, retain senior counsel. The hearing

was adjourned to 27th February 2014.

10. On 27th February, the sixth hearing, an oral request was made by the

respondent’s attorney to amend the statement of case and reply. According to

the judge the respondent’s senior counsel: “reported that discussions between

the professionals had broken down a few days earlier and the matter would

need to proceed to trial. He said that in the light of this development it was

necessary to amend the Statement of Case and the Reply.”

11. The transcript records the following exchange between the judge and the

attorney for the respondent with respect to the application to amend:

Mr. Sinanan SC: “So what I think would be useful is that your lordship

can give directions in that regard so we can put our

house in order. You have to remember too that we only

of 44

came on in the matter- what was it, in November last

year?

Judge: I don’t know….you would have to make an application

to amend because the first CMC would have long gone.

Mr. Sinanan SC: No, isn’t this a part of the adjourned CMC? What were

we doing all the time?

Judge: Adjourned CMC? No, the first CMC came and then the

second and the third what have you. It was never

adjourned as the first CMC. None were ever adjourned

as the first CMC. My fly note says adjourned since

2012 [noise interference]…hmmm… every CMC is

adjourned at the end of it. The question is – has it been

adjourned as the First CMC? No, it was not adjourned

as the first CMC. No one asked me to do that. The first

CMC came up and it was adjourned to a next date and it

came up and was then adjourned.

Mr. Sinanan SC: Ok, if it is that, we would have to make an application,

ok.”

12. Thereafter the judge directed that a written application be made for permission

to amend and the hearing adjourned to 1st May 2014 for that purpose. This

hearing was rescheduled to 10th July 2014. On 9th July the application for

permission to amend the statement of case and reply was filed. Also separately

filed was an amended statement of case and an amended reply. Thereafter, on

the 7thApril 2016, the judge gave permission to the respondent to amend the

claim form, statement of case and reply.

of 44

13. Essentially the change to the claim form and statement of case sought to delete

a duplication of some of the claims made and include a new item of loss

amounting to $1,450,200.00. According to the respondent the change to the

reply was to clarify matters proposed in the original reply, crystallize the

issues with respect to certain clauses of the contract and introduce some

alternative pleas.

14. The judge found that the effect of these changes, some four years after the

institution of the case and seven years after the alleged breach of contract, was

to enlarge the claim by some $760,000.00. In coming to his decision that the

respondent was entitled to amend the statement of case and the reply the judge

determined that, despite the statements made by him recited above, the first

case management conference had not been concluded.

15. The appellant challenges this decision on three grounds. First, it submits, the

first case management conference had long passed and in the circumstances in

order to obtain permission to amend the statement of case and reply the

respondent had to satisfy the requirements of part 20.1 (3) of the CPR which

the respondent has not done. Second, it submits, the respondent was estopped

from contending that the first case management conference was not over by its

express representation made during the sixth hearing.

16. Finally, the appellant submits, that the judge failed to take into consideration

that:(a) the amendment to the statement of case actually introduced a claim

that would have been statute-barred but for the amendment; and (b) that the

of 44

matters raised in the reply were not matters properly the subject of a reply and

rather belonged to a statement of case.

17. Insofar as the appellant seeks to rely on estoppel we think that this is not a

ground upon which it can succeed. From the passage from the transcript

referred to earlier it is clear that the position taken by the respondent that it

would have to make an application to amend came as a result of the judge’s

insistence that the first case management conference had long passed. The

respondent’s position at the time was that the first case management

conference was still subsisting but that if it were that the first case

management conference had long passed, as contended by the judge, then it

would have to make the application.

18. Further, in addition to making the application, the respondent on the same day,

without permission of the judge, filed the amended statement of case and

reply. It would seem to us that by this the respondent was attempting to

maintain its position that an application pursuant to part 20.1 (3) and (3A) was

unnecessary. In the circumstances it cannot be said that the respondent

voluntarily concluded and unequivocally communicated or made an express

representation to the appellant that the first case management conference was

at an end. The case of The Commonwealth of Australia v Verwayen [1990]

170 CLR 394 relied on by the appellant therefore does not assist it. In that

case, unlike this one, there was an unequivocal position taken by the defendant

and communicated to the plaintiff that it would neither contest liability nor

plead the limitation defence.

of 44

19. Accordingly the outcome of this appeal is to be determined by a consideration

of one or both of these two issues: (i) was the judge required to apply part

20.1(3) and (3A) to the application to amend the statement of case and reply

and, if so, did the respondent satisfy that criteria; and (ii) were the

amendments sought amendments that could properly be made to the statement

of case and reply. This latter issue becomes relevant only if we are required to

consider the provisions of rule 20.1(3A) and the contents of the amended

statements of case.

Was the judge required to take part 20.1 (3) and (3A) into consideration and, if

so, did the respondent satisfy that criteria

20. This question turns on whether the case was still at the stage of the first case

management conference. The concept of the first case management conference

and when it ends has troubled and continues to trouble judges. It clearly posed

some difficulty for the judge in this case. To a large extent this confusion has

been created by the fact that part 20.1 of the CPR links the need to obtain

permission to make changes to a statement of case1 to a time frame marked by

the first case management conference.

21. Insofar as it is relevant to the issue for our determination part 20.1 provides:

(1) A statement of case may be changed at any time prior to

a case management conference without the court’s

permission.

1 Part 2.3 of the CPR defines “statement of case” as including a reply to a defence

of 44

(2) The court may give permission to change a statement of

case at a case management conference.

(3) The court shall not give permission to change a statement

of case after the first case management conference,

unless it is satisfied that-

(a) there is a good explanation for the change not having

been made prior to that case management

conference; and

(b) the application to make the change was made

promptly.

(3A) In considering whether to give permission, the court

shall have regard to-

(a) the interests of the administration of justice;

(b) whether the change has become necessary because of

a failure of the party or his attorney;

(c) whether the change is factually inconsistent with

what is already certified to be the truth;

(d) whether the change is necessary because of some

circumstance which became known after the date of

the first case management conference;

(e) whether the trial date or any likely trial date can still

be met if permission is given; and

(f) whether any prejudice may be caused to the parties if

permission is given or refused.”

of 44

22. The rule has been interpreted to require a party to obtain permission from the

judge to change its statement of case during or after the first case management

conference. If the application for permission is made after the first case

management conference then the applicant must first satisfy the judge that

there is a good explanation for the change and that the application was made

promptly2. It is only if these threshold criteria are met that the judge will have

regard to the considerations contained in part 20.1(3A): Cristal Roberts and

another v Bhagan and Medicorp CA No P 263 of 2014.

23. Two other rules specifically make reference to the first case management

conference. Part 18.4(1) permits a defendant to make an ancillary claim

without the court’s permission if the ancillary claim is issued before the date

of the first case management conference. An application to do so after the first

case management conference is subject to the requirement that the party

wishing to make such a claim satisfy the judge that there has been a significant

change in circumstances that only became known after the first case

management conference. Under part 67.8 (2) an application for a costs budget

must be made before or at the first case management conference.

24. The confusion engendered by the concept of the first case management

conference is compounded by the fact that there seems to be a lack of

consistency in the manner in which the CPR makes reference to case

management conferences. The CPR simultaneously refers to “the” case

management conference; “the first” case management conference and “a” case

management conference.

2 Part 20.1(3)

of 44

25. As well part 27.8 makes specific reference to the adjournment of a case

management conference under certain circumstances. It provides:

“(1) The court may not adjourn a case management conference

without fixing a new date, time and place for the adjourned

case management conference.

(2) Where the court is satisfied that either –

(a) the parties are in the process of negotiating, or are likely

to negotiate a settlement; or

(b) the parties are attending or have arranged to attend a form

of ADR procedure,

the court may adjourn the case management conference to a

suitable date, time and place to enable the negotiations or

ADR proceedings to continue.

(3) The court may give directions as to the preparation of the

case for trial if the case management conference is

adjourned.

(4) Where the case management conference is adjourned under

paragraph (2) each party must notify the court office

promptly if the claim has been settled.

(5) Any adjourned case management conference and, so far as

practicable, any procedural applications made prior to a pre-

trial review must be heard and determined by the judge or

master who conducted the case management conference”.

of 44

26. In accordance with part 27.8 therefore, where during the course of a case

management conference the parties wish to engage or are engaged in

discussions or a procedure geared towards a settlement, the judge may adjourn

that case management conference to allow them to engage in this process. It

must be noted however that despite the adjournment of the case management

conference in order to ensure that the case is not unduly delayed the judge

may still give directions that have the effect of preparing the case for trial.

27. Insofar as part 27.8 (5) is concerned this rule is now rendered otiose by the

adoption of the practice of docketing cases to judges so that the judge to

whom the case is docketed deals with that case from start to end. While the

existence of part 27.8 (2) seems to suggest that this is the only circumstance

under which a case management conference may be adjourned part 27 does

not specifically prevent the adjournment of a case management conference in

other circumstances.3

28. Another source of confusion arises, not from the rules but rather, from the

manner by which adjournments are recorded on the minute sheets. Frequently

during the course of case management conference hearings the minute sheet

merely contains the words “adjourned to” followed by the adjourned date with

no information on or no means of ascertaining exactly what is being

adjourned. In such a case there is no indication whether it is the case

management conference itself that is being adjourned or whether it is the case

that is being adjourned to another case management conference.

3see the comments of Kangaloo JA in the reasons delivered in ShankuntulaTota-Maharaj v Vincent Hernandez

CA No. 247 of 2009 [transcript]

of 44

29. Such imprecise recording makes it very difficult for a judge, when called

upon, to determine if and when the first case management conference has

ended. The adoption of a practice where the judge ensures that there is a

proper record of the status of the hearing will, in the majority of cases, obviate

the need for a minute and detailed examination of the proceedings to ascertain

whether in fact the first case management conference has come to an end.

30. In the absence of such an annotation, in order to determine the status of the

hearing, the first observation to be made is that a distinction needs to be drawn

between the individual case management conference and the case management

stage of a case. Despite the fact that there is a continuing duty on a trial judge

to apply case management techniques throughout the life of a case, generally,

an action can be said to be at the case management stage after the defence is

filed and prior to the pre-trial review. This is the period within which case

management conferences are fixed.

31. In fixed date claims however, where the first hearing may precede the filing of

a defence, the case management stage, if employed, is triggered by the

scheduling of a case management conference by the judge. In matters

commenced by an ordinary claim form, as in this case, this stage is activated

by the fixing of a case management conference pursuant to part 27.3 of the

CPR.

32. This is the stage where the court has the responsibility of actively managing

the case in order to arrive at a resolution without the need for a trial or refining

and reducing the areas of dispute and, in the appropriate case, start the parties

of 44

on the road to trial by the issue of suitable directions. It is the stage when,

Greenslade in his report on ‘Judicial Sector Reform Project, Review of

Civil Procedure’ recommends that all procedural applications are to be

made.4

33. According to Greenslade:

“The aims of the case management may be summarized as to ensure

that-

• proceedings are disposed of expeditiously with the

minimum necessary commitment of resources by the

court or by litigants; and

• cases which can be disposed of by some means other

than trial should be identified as early as possible; and

• cases going to trial are adequately prepared with the

minimal commitment of resources that is necessary

for a fair decision to be achieved; and

• there is an appropriate and effective allocation of finite

court resources;”5

34. These aims are reflected in part 25.1 of the CPR which states:

“The court must further the overriding objective by actively

managing cases, which may include-

(a) identifying the issues at an early stage;

(b) deciding promptly which issues need full investigation

4 At page 77 5at page 75 of the report

of 44

and trial and accordingly disposing summarily of the others;

(c) encouraging the parties to use the most appropriate form of

dispute resolution including, in particular, mediation, if the

court considers that appropriate and facilitating their use of

such procedures;

(d) encouraging the parties to co-operate with each other in the

conduct of proceedings;

(e) actively encouraging and assisting parties to settle the whole

or part of their case on terms that are fair to each party;

(f) deciding the order in which issues are to be resolved;

(g) fixing timetables or otherwise controlling the progress of the

case;

(h) considering whether the likely benefits of taking a particular

step will justify the cost of taking it;

(i) dealing with as many aspects of the case as is practicable on

the same occasion;

(j) dealing with the case or any aspect of it, where it appears

appropriate to do so, without requiring the parties to attend

court;

(k) making appropriate use of technology;

(l) giving directions to ensure that the trial of the case proceeds

quickly and efficiently; and

(m) ensuring that no party gains an unfair advantage by reason of

his failure to give full disclosure of all relevant facts prior to

the trial or the hearing of any application”.

of 44

35. Part 25.1 therefore establishes the perimeters of the case management stage:

from the identification of issues to giving directions to ensure that the trial of

the case proceeds quickly and efficiently. Essentially each judge will have her

or his unique style of managing the individual case and, of course, methods

will also vary depending on the particular facts and circumstances of the case.

A running down action with no personal injuries, for example, will be treated

very differently from a complex medical negligence case or a large building

contract in which there are many issues for determination.

36. The individual peculiarities of each judge and the particular circumstances of

each case must however conform to the elements of case management

required by the rules. According to Greenslade: “There can be no single

procedure to be adopted at a case management conference. However it will be

clear……that there are a number of elements, most of which will appear at the

majority of case management conferences.”6

37. The manner by which a judge manages his or her case is therefore as wide as

it is broad and, once the essential elements are present, there can be no right or

wrong method. Essentially these elements are contained in parts 25, 26 and 27

of the CPR. The task at hand is to identify those elements that will allow a

judge and the parties, in hindsight in most instances, where necessary to

determine when the first case management conference has ended.

38. That said it would be wrong to link the events or elements expected to

comprise the case management stage of the case simply to the making of the

6 At page 78

of 44

orders identified at part 27.6 of the CPR. Part 27 treats generally with the

procedures to be followed by the court in managing cases. By this rule it is

clear that, in the main and in accordance with Greenslade’s recommendation,

these procedures are to take place during the case management stage of the

case. Part 27.6 merely identifies orders that may be made during this stage and

at a case management conference.

39. Part 27.6 provides:

(1) The general rule is that at a case management conference

the court must consider whether to make orders for-

(a) standard disclosure and inspection by a date fixed by

the court;

(b) service of witness statements by a date fixed by the

court; and

(c) service of expert’s reports (if any) by a date fixed by

the court.

(2) The court may also make orders for-

(a) the preparation of an agreed statement of facts;

(b) the preparation of an agreed statement of issues;

(c) the preparation of an agreed statement of the basic

technical, scientific or medical matters in issue; and

(d) an agreed statement as to any relevant specialist area of

law, which statement shall not be binding upon the trial

judge.

of 44

(3) The court must fix a date for a pre-trial review unless it is

satisfied that the case may be dealt with justly without a

pre-trial review.

(4) The court must in any event, fix-

(i) the trial date; or

(ii) the period within which the trial is to take place; and

(iii) the date on which a listing questionnaire is to be sent

out by the court office to the parties.

(5) The court office must serve the directions made on all

parties and give notice of -

(i) the trial date or trial period; and

(ii) the date on which the listing questionnaire is to be

sent out by the court office.

40. By the use of the article “a” this rule does not exclude the possibility of there

being more than one case management conference. Neither does it exclude the

possibility of these orders being made over the course of more than one

hearing or case management conference. For our purposes however what it

does is to identify what are the types of orders that may signify that case

management activity has begun.

41. Given the provisions of parts 25.1, 26 7 and 27 it is clear that the orders

contained in part 27.6 are not intended to be the only orders or directions that

a judge may give at a case management conference. For example there is no

reference in that rule to orders or directions that the parties attend mediation or

7 Part 26 deals with the court’s case management powers

of 44

that their experts meet. In similar fashion part 26.1 refers to a whole slew of

orders, steps or directions that a court may make which are not necessarily

reflected in part 27.6.

42. Nor is it that part 27.6 requires that a judge make all the orders identified in it.

Part 27.6 (1), for example, states: “The general rule is that at a case

management conference the court must consider whether to make” the orders

identified at (a)-(c). Similarly part 27.6(2) introduces the orders identified at

(a) to (d) with the words: “The court may also make orders for-”.

43. The only orders that seem to be made mandatory by the rule are the

requirements that a pre-trial conference be fixed unless the judge determines

that it is not needed; a trial date or a trial window be given and the date for the

issue of the listing questionnaire 8 . In some instances however even the

seemingly mandatory orders may not be necessary. For example it is obvious

that a matter settled at the first hearing will not require a trial date or trial

window.

44. Similarly the judge may determine that, for one reason or another, a case

ought not to go to trial. In some cases it may be more appropriate to take

advantage of the rules that allow for summary judgment or striking out rather

than fixing a date for trial. In others the case is so clearly one that calls for a

settlement that the judge may simply point the parties in that direction and, by

the use of carefully selected words, send them away to resolve the case

themselves.

8in fact the listing questionnaire is in practice rarely ever used.

of 44

45. It is precisely because it is impossible to prescribe the exact method or manner

by which an individual judge may bring parties to a resolution that

Greenslade states “that there are a number of elements, most of which will

appear at the majority of case management conferences.” According to

Zuckerman9: “it is essential to appreciate that the CPR adopt a policy of

leaving management of individual disputes to the court, confining the rules to

setting out management policies or objective that the court must strive to

achieve according to the nature of a particular dispute. It is not the rules’

purpose to confine the court to some narrow pre-determined path, but rather to

establish general objectives that have to be borne in mind in the exercise of the

management powers.”

46. Rather than prescribing a formula for the case management conference

therefore it would seem that part 27.6 presents a type of checklist identifying

the sort of orders that need to be made or at least considered during the case

management stage of the case before moving on to the trial stage. In some

cases some of these orders may be used as tools by the judge to further the

resolution of the dispute at the case management stage. In others the orders

may be used to transition from the case management stage of the case to the

trial stage. In other cases the orders simply may not be necessary.

47. So, for example, in some instances, given the requirement of the identification

or annexure of all documents considered relevant to statements of case, orders

for disclosure and inspection may merely be necessary to facilitate the

admissibility of documents at trial while in other cases it may be a tool for

9 2nd edition page 395-396 para10.3

of 44

exploring early settlement. Similarly in some cases the exchange of witness

statements or expert reports may assist in settlement discussions. In others it

may merely be a precursor to trial. What is clear is that case management is a

fluid process geared to allowing a judge to bring a case to resolution by the

use of any methods identified in parts 25, 26 and 27. In this regard therefore

case management can be said to be an art.

48. To achieve the desired goal at the case management stage the first task will

invariably be to identify the issues in dispute. These issues may, and indeed

will in the majority of cases, include disputes of fact. The identification of the

issues requires an evaluation of the statements of case, including in some cases

a determination of the need for a reply, to ascertain whether they define the

real issues between the parties. This, of necessity, must be done early in the

case management process since to embark on an attempt to resolve the dispute

between the parties without identifying and defining the real issues in dispute

would make no sense. This ideally would need to be done at the first case

management conference. The identification of the issues therefore marks the

beginning of the active management of the case and the case management

process.

49. This accords with part 25.1(a) which requires the judge to identify the issues

at an early stage. Again the method used for the determination of and the

recording of the agreed issues would depend on the particular case and the

individual style of the judge. In some cases it may be necessary for the parties

to prepare an agreed statement of facts and/or issues. In other cases the issues

may be so straightforward that they can easily be identified and recorded

of 44

without the need to require the parties to submit an agreed statement of issues.

In such a case therefore there will be no need for a judge to issue any order or

direction to identify the completion of this task.

50. What is constant however is that, as a general rule, a resolution of the dispute

or a decision of what parts of the case can be disposed of summarily or require

full investigation cannot be achieved without a determination of the issues

however informal that determination may be. Once that is done and the

identification of the issues in dispute has been achieved then the next step

must be to work towards the resolution of the issues.

51. The resolution of the issues can take many forms including a referral of the

parties to appropriate forms of dispute resolution or, as in the instant case,

requiring that the parties engage experts in a rationalization exercise or

exercises aimed at narrowing the issues in dispute.

52. In this regard part 25.1(c), for example, requires the court to encourage the

parties to use the most appropriate form of dispute resolution; part 25.1 (e)

requires the court to encourage the parties to settle the whole or part of their

case on terms that are fair to each party and part 27.8 acknowledges that in

some cases the judge may deem it appropriate to adjourn the case management

conference for the purpose of engaging in processes geared towards a

settlement.

53. As well procedural applications aimed at resolving or narrowing the issues by

less consensual means are also dealt with during this phase. So that

of 44

applications under part 26.2 to strike out the statement of case or part of the

statement of case; for judgments on admissions under part 14 or summary

judgment under part 15 will be dealt with in this phase.

54. The final task to be achieved at the case management stage arises only if there

has not been a complete settlement of the case. In those circumstances the case

must be prepared for trial and the judge is required to give directions to ensure

that the trial of the case proceeds quickly and efficiently10. By this time, the

end of the case management stage, most if not all of the orders referred to at

rule 27.6 would have been made or ought at least have been considered.

55. In the majority of cases it is hardly likely that all the goals of case

management can be achieved at one hearing. Indeed the nature of the

procedural applications that may be required to be dealt with this stage may on

occasion necessitate a hearing solely dedicated to a particular application. In

some instances therefore hearings other than case management conferences

may be held during this phase.

56. Of necessity therefore, in all but the simplest of cases, the case management

stage is usually made up of discrete hearings, ideally with specific agendas, all

aimed at moving a case through the various phases of case management

towards resolution. The fixing of a date for a pre-trial review therefore will, in

most cases, mark the end of the case management stage and the period when

all obvious means of an early resolution of the dispute have been exhausted

and the parties and the judge become focused on the trial.

10part 25.1(l)

of 44

57. The CPR requires that, in their pre-action protocol letters and their statements

of case, parties bring forward their whole case prior to or at the

commencement of the proceedings. In majority of the cases therefore the

issues for determination are, or ought to be, clearly defined or can be clearly

identified by the first hearing.

58. Prior to filing the parties are required to certify that the contents of their

statements of case11 are true. To permit a party to introduce new matters, by

way of allegations of fact, new causes of actions, issues or otherwise, late in

the case management stage when the parties have already embarked on, and in

some instances even completed, actions geared towards a settlement of the

case would be inefficient and counter-productive and, at times, unfair. In

some cases, depending on the type of directions given by the judge during the

settlement stage, parties would have invested both time and money in such

settlement attempts.

59. It is for this very reason that part 20.1(2) requires that permission be sought

from the judge to change a statement of case at a case management conference

and that changes to a parties’ case after the first case management conference

be restricted. It ensures that time and effort are not expended in managing a

case based on a premise, factual or otherwise, that could be easily changed.

60. The conditions established by part 20 therefore allow the court to embark on

active case management and the parties to engage in full and meaningful

discussions on the merits and demerits of the case or to take active steps

11used here in the context required by the rules to include a defence.

of 44

towards resolution without the fear that the goal posts would change during

the discussions. Yet the rule allows a judge, in an appropriate case, to allow

parties to make changes to their case where it will be just to do so.

61. In this regard the overriding objective12 provides the context for treating with

cases justly under the CPR. This context includes, for example, the

requirement that a judge, as far as practicable, ensure that all parties are on an

equal footing. Parties may not be on an equal footing if, in the context of the

requirements of the rules for full and early disclosure and certification that the

contents are true, a party is permitted to change its case late in the case

management stage. Similarly expediency and the requirement that account be

taken of the need to allot resources to other cases may militate against changes

being permitted at a late stage.

62. Part 20.1 therefore allows the parties one last opportunity to get their case

right before the issues are finally defined; positions crystallized and

procedures geared towards resolution embarked upon. It also identifies the

time when control of the case moves from the attorneys and into the hands of

the judge.

63. With respect to the fixing of case management conferences there seems to be

three options open to a judge in order to fulfill the purpose of the case

management stage: an adjourned case management conference where there is

one case management conference with adjourned hearings; a series of case

management conferences starting with the first hearing and continuing on each

12part 1 of the CPR

of 44

hearing being a separate case management conference; or an amalgam of the

two where there are a series of case management conferences but where the

judge has the ability in an appropriate case to adjourn a case management

conference.

64. The problem with the first option is that the concept of a first case management

conference has no place since its existence suggests at least a second. The rules

therefore seem to contemplate more than one case management conference.

This first option therefore is incompatible with the CPR.

65. The problem with the second option is that, as we have seen from a number of

the decided cases on the issue, the mere fact of a separate hearing does not

always equate with a separate case management conference. As a general rule

the court looks at what has occurred during the hearing to determine whether or

not the first case management conference has been completed: “what is

essential to constitute a case management conference is that some step or

approach or direction of significance must have taken place.”13

66. The third option recognizes that, while the case management stage may consist

of a series of individual case management conferences, in certain circumstances

it may be necessary to adjourn a case management conference if the business of

the day is still incomplete or no further step to advance the case can as yet be

taken. This seems to be in accord with the position taken by the Court of

13per Boodoosingh J in The National Insurance Board of Trinidad and Tobago v The Trinidad and Tobago

National Petroleum Company Ltd CV 2012 -03949 at paragraph 5; see also Doolin Mohammed v Kawal and

others CV 2006 -04023 at paras 16 and 17

of 44

Appeal in cases in which it was required to determine whether the first case

management conference had ended.

67. So that in the case of Jean Jairam v Russel Hosein Khan14the Court of

Appeal determined that the first case management conference had not as yet

ended because the record did not show that a further step been taken by the

judge to advance the case. This was also the rationale in Dean Mohammed

Ali v Salesh Ramnarine15. In that case the first case management conference

was specifically adjourned over a period of three hearings to allow for an

application to amend. However by the third hearing, in the absence of the

amendment, the judge proceeded with the case management conference and

took the case a step further by giving directions for the trial. The court held that

the first case management conference had therefore been concluded on that

date.

68. This also accords with the position taken by the judge in Bowlah v The

Attorney-General of Trinidad and Tobago CV2008-4824. This was an

application for an administrative order by way of a fixed date claim. The

claimant sought permission to amend the claim form to add two new grounds.

The matter was at the case management stage. The application was made at the

second hearing. The judge concluded that since the defendant had not as yet

filed its affidavit in opposition the issues had not crystallized and accordingly

the court was not in a position to manage the case as provided under part 25.

14Civ. App No. 94 of 2013 [transcript] 15Civ. App. 252 of 2008 [transcript]

of 44

69. In other words no further step could have been taken in the case until all the

facts had been placed before the court and the issues identified. In the

circumstances the second hearing was not a second case management

conference but rather a continuation of the first and accordingly it was open to

the court to consider the application to amend without recourse to part 20.1(3).

70. The third option therefore seems to accord with the rules in that it recognizes

that the case management stage may comprise more than one case management

conference but that there may be circumstances when a judge may legitimately

wish to adjourn a case management conference rather that fix a new one as, for

example, in the circumstances described in part 27.8 (2). Another such

circumstance was acknowledged in the case of Dean Mohammed Ali v Salesh

Ramnarine where, on the particular facts, the first case management was

adjourned on two occasions to facilitate a proposed amendment of the defence.

71. The dilemma here is to determine, usually in hindsight, when one case

management conference ends and the other begins. In particular to determine

when the first case management conference ends and the second begins. One

way of making such a determination is to assume that each case management

conference represents a different phase in the case management stage of the

case.

72. In this way it is possible to distinguish between case management conferences

by reference to one of these three phases: identification of the issues; resolving

those issues and preparation for trial and the movement from one phase to the

of 44

other as a further step in the action. Treating the dilemma in this manner allows

a judge some flexibility while fulfilling the purpose of parts 20; 18.4 and 67.8.

73. With respect to parts 20 and 18.4 it prevents a party from easily changing or

adding to the issues for determination after those issues have been identified

and the resolution of the issues embarked upon. With respect to part 67. 8 it

acknowledges the importance of cost certainty in the resolution of disputes and

so requires that if there is to be a cost budget it be established before embarking

on the active resolution of the dispute. Treating the problem in this manner is

also consistent with the decided cases and part 27.8 of the CPR.

74. Of course, given the fact that case management is case and judge specific, it

may very well be that the phases of the case management stage will not

necessarily run sequentially or all require separate hearings. In some cases it

may be easier than in others to identify when the parties have moved from one

phase to the next. In some cases it will not be necessary. Where there is more

than one case management conference the most obvious method of

distinguishing between the phases will of course be the fact of separate

hearings. So that logically the first hearing will be the first case management

conference and the second hearing the second and so on.

75. This would seem to be the natural course of events. Under normal

circumstances and, as a matter of common sense, in order to comply with the

requirement of expedition and the efficient use of the resources of the court, a

hearing ought not be completed until at least one step has been taken, or one

phase completed, in order to advance the case towards resolution. The

of 44

presumption must therefore be that the fixing of a new case management

hearing signifies that such a step has been taken and the case is ready to

progress to the next phase.

76. There may however, on occasion, be a valid reason for a judge having to

adjourn a hearing before the parties are ready to take another step in the action.

An obvious example of this occurs where the circumstances as envisaged by

part 27.8(2) apply. In those circumstances it would be open to the judge to

exercise her discretion to adjourn the case management conference. Such a

circumstance would require the judge to indicate that the case management

conference is being adjourned and fix a new date, time and place for that

adjourned case management conference.16

77. In circumstances therefore where a judge determines that rather than fix

another case management conference it is necessary to adjourn that case

management conference then the record ought to reflect such a decision. For

the purposes of part 20; part 18.4(5) and part 67.8 such a record is particularly

important in order to register that the first case management conference has not

as yet come to an end.

78. With respect to the first case management conference therefore where a judge

determines that it is necessary to adjourn the conference that judge should

inform the parties of the position and indicate the fact of the adjournment on

the record. This position ought however not be the norm. Expedition and the

efficient use of resources demand that wherever possible the case management

16part 27.8 (1) of the CPR

of 44

conference ought not to be adjourned until the case has progressed to another

phase.

79. Where there is no record of the next hearing being an adjourned case

management conference then the presumption must be that a new hearing

indicates that the case management conference was not adjourned and the

parties and the court have embarked on another case management conference.

In case of the first case management conference therefore a new hearing marks

the end of that case management conference unless the judge specifically states

on the record that the case management conference is being adjourned.

80. In the instant case, for example, had a proper record been taken the judge

would not have found himself in the situation of having to rethink his initial

position. The contemporaneous record would have confirmed the position and

the parties would have been in no doubt. Unfortunately in the instant case the

judge himself seemed to be unsure of the position.

81. The judge seemed to be of the opinion that to qualify as a case management

conference the court had to make orders of the type set out in part 27.6.

According to the judge: “the event that signals the first case management

conference involves actual court-driven management of the type set out in Part

27.6. If such activity takes place for the first time, then, ordinarily, it would

signal that that hearing is the first CMC. After its adjournment the first CMC is

concluded. Whether the activity took place at the first hearing or the sixth

hearing is irrelevant.”

of 44

82. Referring to the first hearing he says: “All that took place was an application to

file a reply. This type of activity does not amount to case management activity.

What is needed is an order or orders of the type set out in Part 27.6.” By these

statements the judge seems to conclude that the first hearing was not a case

management conference.

83. In this regard the judge was clearly wrong. In accordance with the general rule

identified at part 27.3(1) the parties were summoned to a case management

conference. Under normal circumstances this would be the first case

management conference. While conceptually there may be circumstances

where the first case management conference is adjourned without anything

having been done, as for example where the parties do not appear, this was not

the case here.

84. In this case the parties appeared and permission given by the judge for the

respondent to file a reply. Under part 10.10(2) such permission must be given

at a case management conference. The fact that the hearing only lasted 4

minutes or that there was no discussion as to the extent of the reply makes no

difference. Once the judge made an order which under the rules could only be

made at a case management conference then the first case management had

begun.

85. It could not be therefore that because no order of the type identified at part 27.6

was made the hearing could not be considered to be a case management

conference. If this was so, on the judge’s own reasoning, no case management

conference has as yet occurred as there is nothing on the record that would

of 44

indicate that any such orders have as yet been made. In fact the orders

identified at part 27.6 do not of themselves indicate what the judge refers to as

‘case management activity’. Rather it is the steps identified in part 25.1 that

amount to case management activity or more properly the active case

management required by the CPR.

86. On the facts of this case therefore the hearing of 26th July 2012 was the first

case management conference. The real question for determination is whether

the first case management conference ended on that date or was itself

adjourned to another date.

87. Initially, and perhaps instinctively, the judge was of the opinion that the first

case management conference had long passed. After examining the record he

changed his mind. According to the judge:

“having closely examined the record of events in the instant case I

am satisfied that the first CMC was never concluded. I had

previously thought that giving directions for the filing of a reply and

the adjournment thereafter signaled the end of the first CMC. I said

this at the sixth hearing in response to Mr. Sinanan’s oral

application to amend. I was wrong. The pleadings are the terms of

reference submitted to the court for dispute resolution. There can be

no conclusion of the first CMC until some point after the Reply is

filed. If there is an ancillary claim against a party or an added party

then that ancillary reference will also need to be finalized and filed.

The court’s (and the parties’) understanding of the dispute is

of 44

inchoate until after the pleadings are closed. The purpose of the

pleadings is to precisely define what the quarrel is about.”

88. In his judgment the judge seems to be ambiguous about when the first case

management actually began. It is clear however from his reasons that the

judge was of the opinion that the first case management conference had not

been concluded by the end of the first hearing. According to the judge

pleadings had not closed and his understanding of what the dispute was about

incomplete.

89. The judge’s initial instincts, as shown by the exchange between him and the

respondent’s attorneys at the sixth hearing, were correct. The first case

management conference had long gone. Further using the phase or step

approach insofar as the judge determined that the first phase could not be

concluded until the statements of case were filed and served the judge was

partially right.

90. The first phase was the identification of the issues. The statements of case,

including a reply where necessary, are integral to such identification. In some

cases there would be no need to file a reply or the reply would have been

already filed with the consent of the defendant by the time of the first case

management conference17. In those cases it is clear that the first order of the

day would be to examine the statements of case in order to identify the issues.

In these cases the statements of case would all have been before the court and

17part 10.10(1)(b)

of 44

the issues ascertainable. Any adjournment thereafter would move the case into

another phase and to the second case management conference.

91. Where the judge went wrong is to assume that the issues could not be

determined until after the statements of case, including the reply, had been

filed and served. In granting permission to file a reply the judge was

exercising a discretion that he ought only to have exercised after having regard

to all the relevant circumstances. These circumstances would include a

consideration of the respondent’s case and the case the respondent was

required to meet; the paragraphs of the defence which necessitated a reply and

the contents of that proposed reply: First Citizens Bank Limited v Shepboys

Limited.18

92. Had the judge embarked on such an exercise, as he ought to have done, the

contents of the reply and the issues would have been identified at that first

hearing and he would have been in a position to embark upon the second

phase of the case management stage. Any adjournment thereafter would have

been to the second case management conference.

93. As it were, according to the judge, it is only after the reply was filed that he

had a better grasp of the factual and legal issues in dispute. In fact he seems to

have arrived at that position in the absence of the parties during the period of

adjournment. Accordingly at the second hearing he says he made a

recommendation that the engineering firm specified under the contract or

some other engineering firm agreed to by the parties should carry out a

18 Civil Appeal no P231 of 2011 at para 22.

of 44

certification of the completed works. The hearing was then adjourned to 21st

February.

94. Insofar as the judge uses the word ‘recommendation’ here and elsewhere in

his judgment it is clear that these recommendations were more in the manner

of directions given by the judge. Seen in this light they are consistent with part

26.1 which recognizes that in exercising its general powers of management the

court may make take steps, give directions and make orders. From what

occurred at the next few hearings it is clear that the parties understood this to

be the case. More importantly for our purposes however what is indicated by

the recommendation was that by the second hearing the case had moved into

the settlement phase and parties were, as directed by the judge, beginning to

explore options aimed at resolving the dispute.

95. This is confirmed when, at the third hearing, the judge was advised that a

review had begun and that an offer was expected soon. According to the judge

the parties were encouraged to continue their efforts and the hearing

adjourned. At the fourth hearing the judge made two further

‘recommendations’ the purpose of, which according to him, “was once more

to identify what could be removed from the court’s purview by mutual

agreement and settled out of court and what could not.” The parties were still

therefore engaged in the settlement phase.

96. By the next hearing the respondent’s instructing attorney had died and the

respondent had new attorneys. The judge was advised that the meeting

recommended by him at the last hearing had not as yet occurred. According to

of 44

the judge the hearing was adjourned to allow the professionals to meet and

resolve the issues identified at the last meeting.

97. At the next hearing, the sixth, the judge was advised that the discussions

between the professionals had broken down and the matter would need to

proceed to trial. It was in those circumstances that the need to amend the

statement of case and reply arose. It is clear therefore that by that time the case

management had moved to the third phase of the case management stage -

preparing for trial.

98. In these circumstances it is difficult to understand the reasoning of the judge

that the first case management conference had not been concluded. There had

been six hearings spanning a period of two years; the statements of case had

been filed and served prior to the second hearing; at the second hearing the

judge gave directions geared towards settling the dispute or at least narrowing

the issues for determination; the parties had been engaged in and had

exhausted their settlement discussions and had indicated to the judge that a

trial was necessary. All that was now required was for the judge to give

directions for trial.

99. When therefore the judge states:

“In the instant case the first CMC was never concluded. The court

did not consider any of the matters in 27.6(1). It did not make

orders under 27.6 (2) or (3). It did not fix a trial date or ‘trial

window’. Not one of these directions was given. The hearings

involved in discussions between the court and the parties about the

of 44

prospects of settlement of some or all of the issues, and

recommendations were made for the parties to consult in order to

narrow the areas of dispute. These recommendations were made to

assist in achieving these goals. The parties and their experts were

actively involved in those deliberations up until a few days before

Mr. Sinanan signaled his intention to apply to amend. It was open to

either party to assert that settlement discussions were hopeless, or

were taking too much time, and to insist on trial directions. Neither

party did that. The length of time that the discussions dragged out

should not be raised as an obstacle by party who fully participated

in the process and yet never sought to end it.”

The judge was plainly wrong.

100. In the first place, even if the judge was mandated to make part 27.6 orders, the

rule requires that such orders be made at a case management conference not

solely at the first case management conference. The parties were clearly still at

the case management stage. There was still time for the orders referred to at

part 27.6 to be considered and, if necessary, made.

101. In any event by the time the judge directed that the parties engage in actions

geared towards the resolution of the issues the issue identification phase had

come to an end and with it the first case management conference. By this time

therefore the parties had moved on to another phase of the case management

process. This latter phase began on 15th November 2012, when the judge

recommended the certification of the completed works. This was at the second

of 44

hearing. By this time the reply had been filed and, according to the judge, he

was in a position to have a grasp of the factual and legal issues in dispute.

102. Unfortunately, on the facts, the judge arrived at this position during the period

of adjournment and in the absence of the parties. In doing so he was wrong.

Had he correctly treated with the need for a reply at the first hearing the issues

would have been identified at that hearing. As it happened, in accordance with

the judge’s directions, the parties themselves proceeded to try to resolve the

dispute on the pleaded issues. From the subsequent events therefore it is clear

that the first case management conference, its beginning and end coincided

with the first hearing on 26th July 2012.

103. By the second hearing of the case a further step had been taken in the case and

it had progressed to the resolution of the issues in dispute. This further step

required an expenditure of both time and money as indicated by the

recommendation of the judge at the fourth hearing that the cost of the exercise

be agreed in advance and that, subject to counsel’s opinion, the appellant pay

the costs. More importantly, from the facts recited by the judge, it is clear that

by the sixth hearing the settlement discussions had broken down and the

parties were ready to go to trial. In concluding that the parties were still

engaged in settlement discussions the judge therefore misread the factual

position.

104. By the sixth hearing the judge had not only given directions for the filing of

the reply but had given further directions including directions that experts

meet and the parties had, according to them, exhausted all settlement options.

of 44

In the circumstances the judge was wrong when he determined that the matter

had not passed the first case management conference. The first case

management had long passed and, having already ended, the judge was

required by part 20.1(3) to consider whether there was a good explanation for

the change not having been made prior to the first case management

conference and whether the application to make the change had been made

promptly.

105. According to the judge, if he was of the opinion that the first case management

conference had been concluded then, it was unlikely that he would have

granted permission to amend. He was of the view that the respondent had not

satisfied him that there was a good explanation for the delay or that the

application had been made promptly.

106. We think that the judge was correct in this regard. In accordance with the rule

the respondent had to satisfy the judge that there was a good explanation for

the changes not having been made prior to the first case management

conference, that is, before 26th July 2012 and that the application for the

change was made promptly.

107. With respect to the changes to the statement of case it is not in dispute that the

document providing the basis for the changes had been annexed to the original

statement of case. The only reason given for the changes to the statement of

case not having been made earlier was that the respondent believed that this

was as a result of the inadvertence of the previous instructing attorney.

of 44

108. The court has time and time again, under the 1975 rules19 and under the CPR,

held that the inefficiency or lack of competence of attorneys is not a good

reason for: an extension of time in Mahabir v Phillips CA 30 0f 2002,

Trincan Oil Ltd. v Schnake Civ App No. 91 of 2009 and The National

Lotteries Control Board v Deosaran Civ. App No. 132 of 2007 and for

relief from sanctions in the Attorney-General v Universal Projects Ltd

[2011] UKPC 37. In the latter case the court was of the opinion that it was

difficult to see how inexcusable oversight can ever amount to a good

explanation: per Lord Dyson at paragraph 23.

109. As was said by Mendonca J.A. in Rawti Roopnarine v Harripersad Kissoo

and others Civ. Appeal No 52 of 2012:“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 the other hand a good

explanation does not mean the complete absence of fault. It must at least

render the breach excusable….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”20

110. In this case, with respect to the changes to the statement of case, it is clear that

the document had been in the hands of the attorney prior to the

commencement of the action the excuse of attorney’s inadvertence, like

inefficiency or lack of competence or inexcusable oversight, cannot in these

circumstances be a good reason for seeking a change after the first case

19 Orders and Rules of the Supreme Court 1975 20at paragraph 23

of 44

management conference. No other reason is proffered by the respondent. Nor

has this inadvertence been placed in a context that provides some justification.

There was nothing placed before the judge which could have made the breach

excusable.

111. The question of promptness is influenced by the context and facts of each

case21. The notice of application seeking the changes to the statement of case

and the reply was filed on 9th July 2014. The evidence on behalf of the

respondent was that instructing attorneys came on record on the 14th October

2013 following the sudden death of the respondent’s previous instructing

attorney. They received office copies of the filed documents around 16th

October 2013 and further documents to complete the file on 7th November

2013. New junior and senior counsel were retained on or around 8th January

2014.

112. Prior to the hearing of 27th February 2014 senior counsel identified the need to

effect certain amendments. According to the respondent the amendments were

not formulated prior to the hearing because the parties were still exploring a

settlement and owing to time constraints. No precise date is given as to the

date when this observation was made. The respondent admits however that at

a meeting held between the parties on 24th February 2014 the appellant took

the position that they were not prepared to discuss the claim for standby time

during the suspension period as it had not been pleaded. This was the claim

that the respondent sought to introduce by the changes made to the statement

of case.

21Trincan Oil limited v Schnake; Rawti Roopnarine v Kissoo and others; Roberts v Bhagan.

of 44

113. By 24th February 2014 therefore it was obvious to the respondent that changes

to the statement of case were necessary and that discussions in this regard

could go no further. Even if the respondent was of the view that the first case

management conference had not been concluded and there was no need to

apply under part 20.1(3) and (3A) the changes would still have had to be

formulated. This was not done until 9th July 2014. In any event at the hearing

of 27th February the respondent was advised of the need to make a formal

application. Despite this the statement of case and the reply containing the

changes and the application seeking permission was not filed until 9th July

2014 some four months after being advised that it was necessary to make the

application.

114. No reasons are given to excuse or explain this delay. In the circumstances no

fault can be found with the judge’s determination that the application was not

made promptly. A delay of four months from the date when it was ascertained

that it was necessary to make changes to the statement of case cannot in these

circumstances be considered prompt. More so given the fact that the action

had been commenced since 2012 and the document giving rise to the change

in the respondent’s possession prior to that date.

115. The position is slightly different with respect to the reply here permission was

only given for it to be filed at the first case management conference. In those

circumstances, while strictly speaking that itself would have provided a good

explanation for the change not being made prior to the first case management

conference, one would have least expected an explanation for not including

the changes sought in the original document. No explanation was given for

of 44

this failure. More importantly no reason has been given for the failure to seek

permission for the changes sought earlier. This goes directly to lack of

promptness.

116. We are satisfied that with respect to the statement of case the respondent did

not demonstrate that it had a good explanation for not making the change prior

to the first case management conference or that the application to make the

change was made promptly. With respect to the reply the application to make

the change was not made promptly. In the circumstances the judge was correct

when he determined that had it been necessary the respondent would not have

not satisfied him that it met the threshold test as required by part 20.1(3).

117. In these circumstances the respondent having failed to satisfy the requirements

of part 20.1 (3) with respect to the changes sought to be made to the statement

of case and the reply there is no need for us to consider the applicability of

part 20.1(3A). Neither in these circumstances is there any need for us to

consider the appropriateness of the changes sought to be made to the statement

of case and reply. Accordingly the appeal is allowed and the permission

granted by the judge to make the changes to the statement of case and reply set

aside.

Judith Jones

Justice of Appeal

republic of trinidad and tobago in the court of...

Documents