the industrial court of trinidad and tobagowebopac.ttlawcourts.org/libraryjud/judgments/hc/... ·...
TRANSCRIPT
1
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2009-02051
BETWEEN
KAREN TESHEIRA
(The Executrix of the Estate of Russell Tesheira)
Claimant
AND
GULF VIEW MEDICAL CENTRE
LESTER GOETZ
CRISEN JENDRA ROOPCHAND
Defendant
Before the Honorable Mr. Justice V. Kokaram
Appearances:
Mr. De La Bastide for the Claimant led by Mr. Mendes S.C. instructed by Ms.
Nyree Alfonso
Ms. Thompson-Bharath led by Mr. Hamel Smith S.C. for the second Defendant
Mr. Harrikissoon and Mr. Rajkumar for the first and third Defendant
JUDGMENT
1. Before this Court is the Claimant’s application for relief from sanctions and
permission to adduce evidence of expert witnesses1.
1 The Claimant’s application dated 2
nd February 2010 for relief from sanctions is in relation to the order of Master
Paray Durity made on 20th
July 2009 with respect to the filing and service of witness statements of the Claimant’s witnesses and her list of documents on or before the 17
th December 2009. The application also sought permission
2
2. Applications for relief from sanctions are contextual and fact specific. It is now trite
law that a litigant must first satisfy a threshold test of promptitude, intentionality,
good reason and general compliance before the Court can consider the other
factors set out in rule 26.7 (4) CPR for exercising its discretion to grant relief. Those
factors are the interests of the administration of justice; the blameworthiness of
either attorney or party for the failure to comply; whether the breach could be
remedied within a reasonable time and the impact on the trial date.2 These are
factors which are weighed and measured by the Court against the particular factual
context of the proceedings and the failure to comply. In Reid Monza v Price
Waterhouse Coopers Limited CA 2001-15, Kangaloo JA observed:
“It is now accepted in this jurisdiction that an applicant seeking relief from
sanction must satisfy all the requirements set out in rule 26.7(1) (2) and
(3) before the Court could consider exercising its discretion to grant
relief…The type of analysis involved in determining whether there is a
good explanation for the breach and whether the applicant has been
generally compliant are essentially judgment calls to be made by the
judge in the exercise of his/her discretion. It therefore cannot be said that
rule 26.7(1) (2) and (3) is to be applied in a manner to deprive the court of
its discretion; a wide discretion which is readily apparent from the
structure of the relief from sanctions provisions.” (emphasis mine)
to file a supplemental list of documents and in the event that the specialist medical practitioners that the Claimant proposes to rely on are deemed by the Court to be expert witnesses within the meaning of Part 33, permission to call them as expert witnesses and to adduce into evidence their expert reports. The application was supported by an affidavit and supplemental affidavit sworn by instructing attorney at law, Nyree Dawn Alfonso. 2 “The Rule is properly to be understood as follows. Rules 26.7(1) and (2) mandate that an application for relief
from sanctions must be made promptly and supported by evidence. Rules 26.7(3) and (4) are distinct. Rule 26.7(3) prescribes three preconditions precedent that must all be satisfied before the exercise of any true discretion arises. A court is precluded from granting relief unless all three conditions are satisfied. Rule 26.7 (4) states four factors that the court must have regard to in considering whether to exercise the discretion granted under rule 26.7(3). Consideration of these factors does not arise (if the threshold pre conditions at 26.7 (3) are not satisfied) per Jamadar JA CA 65 of 2009 Trincan Oil Limited v Chris Martin. This approach is endorsed in Miguel Regis v Attorney General of Trinidad and Tobago CA Civ 79/2011 and The Attorney General v Universal Projects Limited [2011] UKPC 37
3
3. It is also common ground that, as has been recently endorsed by the Privy Council3,
the underlying policy of our relief from sanction regime is to instill discipline in the
conduct of civil litigation in this jurisdiction and to prevent a slippage to the laissez-
faire attitude adopted by litigants and/or attorneys which stymied the effective
management of civil litigation under the former rules. Jamadar JA observed in AG v
Regis CA 79 of 2011:
“We wish to highlight that the CPR, 1998 is designed to promote a culture
of compliance, and that the non-compliant ought not to govern the
conduct and pace of litigation…The system is progressive and
proportionate. This system honours the conscientious, while
accommodating the non-compliant within guided parameters. This
approach promotes a culture of compliance, while at the same time
eroding the vicious cycle of laissez-faire.”
4. Judges in exercising this discretion under rule 26.7 CPR4 must be cautious in
drawing references to “relief from sanction” decisions in other cases as no two
cases are alike. As Kangaloo JA pointed out these are judgment calls being made
by the Court in their management of the case against its own backdrop of facts and
circumstances. Lord Woolfe provided useful advice in his foreword to the Caribbean
Civil Practice when he said:
3 See Attorney General v Keron Matthews and Attorney General v Universal Projects Limited (2011) UKPC 37.
4 Part 26.7, CPR, 1998 states:
(1) An application for relief from any sanction imposed for a failure to comply with any rule, court order or direction must be made promptly. (2) An application for relief must be supported by evidence. (3) The court may grant relief only if it is satisfied that –
(a) the failure to comply was not intentional; (b) there is a good explanation for the breach; and (c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions.
(4) In considering whether to grant relief, the court must have regard to – (a) the interests of the administration of justice; (b) whether the failure to comply was due to the party or his attorney; (c) whether the failure to comply has been or can be remedied within a reasonable time; and (d) whether the trial date or any likely trial date can still be met if relief is granted.
4
“The advice that I give if I may to the jurists who have responsibility of
applying the Caribbean CPR is that whenever possible they should avoid
giving decisions which seek to bind other judges as to how the CPR
should be applied…the former Rules of Supreme Court became
encrusted with unnecessary precedents which made their application
difficult and hazardous. The same fate is now threatening the CPR by
which they were replaced. We must do our best to avoid this happening to
the Caribbean CPR”
5. As we continue to shape our indigenous civil landscape we must also do our best to
resist the temptation to seek authoritative guidance in the application of the 26.7
CPR factors from decisions in “relief from sanction” applications made against the
backdrop of a different relief from sanction regime and philosophy. It would be a
distortion and disfigurement of our jurisprudence like a douen5 with its feet pointed
backwards if we feel compelled to follow an alien jurisprudence which is not relevant
to our local needs and our indigenous litigation culture. The structure and language
of the relief from sanction regime in the English CPR which were relied upon by the
Claimant in this application is markedly different from the rule 26.7 CPR. This
difference in both structure and language as correctly submitted by the Defendant,
reflects priorities which were set and choices which were made by the framers of our
CPR as to how these provisions might most effectively contribute to achieving the
difficult but essential objective of changing the Trinidad and Tobago litigation
culture. The Privy Council in Charmaine Bernard v Ramesh Seebalack 2010
[UKPC] 15 accepted that “it will be wrong for it to adopt an interpretation to the rules
which would undermine the attempts made by the Rules Committee (supported by
(5) The court may not order the respondent to pay the applicant’s costs in relation to any application for relief unless exceptional circumstances are shown. 5 Douen (pronounced Dwen [Trinidad and Tobago folklore]) are considered to be the ‘lost souls’ of children that
were not baptized or christened before death. It is said that they are destined to wander the earth eternally while practicing their collection of pranks. Neither male nor female, douens live in the forest, swamps and near rivers in Trinidad and Tobago. Their manifestation is that of a naked child never growing more than two or three feet in height. They wear a large floppy straw hat and have an entirely undistinguished face with the exception of a small mouth. The one characteristic that allows them to be recognized as douens are their feet, which are turned backwards with the heel facing forward. (en.wikipedia.org/wiki/Douen)
5
the Court of Appeal) to determine the efficiency of civil litigation in Trinidad and
Tobago.”
6. Usefully the second Defendant provided a comprehensive list of relief from sanction
applications in this jurisdiction. In the main the applications were refused and each
reflected decisions against its own backdrop:
A-G v. Universal Projects Limited 2011 [UKPC] 37- The Defendant had an
extended 21 days to file its defence. The Defendant failed to file its defence on
the appointed date. The reason given by the Defendant for its failure to comply
with the order of the Court was that the Defendant’s advocate attorneys in the
matter took the view that outside counsel should be retained and that
authorization for this course should be obtained from the Solicitor General. This
took time because there was no Solicitor General and the approval of the
Attorney General was required. In the result, outside counsel were not instructed
until two days before the defence was to be filed. On the last date for the filing of
the Defence, the Defendant wrote a letter to Gobin J informing her that counsel
were examining the documents in their briefs “feverishly” and that they required
additional time to absorb their instructions and advise the Attorney General. It
would not be possible to file a defence that day.
AG v. Keron Matthews 2011 [UKPC] 38- The Defendant was one month late
for filing its defence. The reason given for the failure to file the defence on time
was that additional time was needed to obtain complete instructions from the
Prison Officer Garcia.
Gregorio Gonzales v. A-G C.A CIV. 71/10- The application was nine months
out of time. The explanation given for the delay was that the file had been
inadvertently misplaced.
David Bhatoo v. Nandoolar Bhatoo & Ors C.V CIV 249/10- Almost 8 months
had elapsed before the Defendants filed their application for an extension of time
6
to file affidavits inter alia. The Defendants' explanation for their failure to comply
with the directions was that the Defendants' attorney had inadvertently placed
their file among his completed files.
A-G v. Ronald Joseph C.A CIV. 249/10- The Claimant was 6 weeks out of time.
The reason given by the Claimant for the failure to file the witness statements
and list of documents was on account of the weather conditions existing on that
particular day – heavy rains and lack of access; the Claimant had attempted to
file the documents before but was handicapped by the position taken at the court
office by members of staff.
A-G v. Rajesh Balkisson C.A CIV. 8/11- The relevant police officers did not
attend the meetings arranged by State Counsel. Some attended but without
instructions. From what appeared to be a laissez-faire attitude on the part of the
relevant police officers the court was left with the impression that the police
officers concerned and even the senior police officers to whom correspondence
had been sent did not give this matter the attention it required; there was on their
part a failure to be prompt and diligent.
Miguel Regis v. A-G C.A CIV. 79/11- The Appellant made his application for
relief from sanctions and an extension of time 1 day out of time. The reasons
given for the failure to comply with the Order of the Court was that the Defendant
has been unable to secure the necessary instructions of the Police Complainant
as he was on sick leave in order to settle his defence.
Nigel Architecture v. Primis Corporation Limited CV 2008-00635- The
Defendants were two months late in filing its witness statements.
Suresh Churan v. Shiva Durgasingh CV 01794/09- The Defendant was a little
over a month late in filing his Witness Statements. The reason advanced for the
delay was that at sometime in May 2010 at latest it became apparent that there
7
would be a difficulty in complying with the Order because of the illness of
instructing attorney since the month of April. No application was made then for
an extension of time.
Mainway Industrial Installation Limited v. Bravelion Industries Limited CV
2009/02485- The Defendant made an application in 2010.12.03 for relief from
sanctions for failure to serve its defence. The Defendant sought a further
extension of time from 2009.11.09 to 2009.11.11. The Court found the
Defendant’s affidavit lacked in particularity -no good explanation offered for delay
the court finds that the affidavit contained gaps - the affidavit was lacking in
particularity, omitting pertinent details within the timeline in order to offer a good
explanation for the delay.
Gowrie Persad Singh v. Jainarine Kissonsingh CV 2009/04494- The relevant
date from which time began to run against the Defendants for making the
necessary application for relief from sanctions was 2010.01.08. By notice of
application filed on 2010.12.10, the Defendants sought an extension of time for
filing a defence. The defendants contend that the parties' attorneys were in the
process of negotiating a settlement but that they have not been able to fully
resolve the issues. The failure to file was allegedly due to negotiations.
Marcella Zamora v. A.G CV 2009-04393- The Defendant's application for relief
from sanctions on 10th
November 2010 was made promptly as the time for filing
its defence expired six weeks after the date the court term began, time for filing it
was not running during the court vacation. The reasons given are; non
attendance of witness; witness attends but unable to provide instructions; family
emergency; Bereavement leave: - Letter requesting extension – oral response by
Claimant’s attorney that extension not required – defence not due; Defendant’s
Attorney-at-law requests extension of time for the filing of defence from Attorney-
at-Law for the Claimant- no response save filing of application for Judgment on
November 10.
8
Jerry Baksh v. Doc’s Home Limited CV 2009-01460- In this case the sanction
was imposed on 23rd
November 2010 and the application was made on 8th
April
2011 some 4 1/2 months after the sanction was imposed. The reason given by
the Defendant for the failure to comply with the Court’s order amounted to a
failure on the part of the Defendant to put adequate systems in place to actively
manage its business and more importantly to monitor the work entrusted to its
senior officers.
Mitch Francis & Natasha Francis v. HDC CV. 2009/01606- The Claimant’s
application was made some 21 days after the sanction was imposed. The reason
advanced for the delay was that the system with which the Claimants' attorneys
operated was not the best since there was no other place than the file where
court directions were recorded. However the Court pointed out that the
Claimants' attorney did not take the simple first step of telephoning the High
Court Registry, or the relevant judicial support officer, or the customer services
desk situated on the ground floor at the Hall of Justice, Knox Street, Port of
Spain to obtain the information on the directions to be complied with and in the
circumstances the explanation offered by the Claimants did not amount to a
good explanation.
Claudette Williams v. South CV 2008-2172- The Claimant filed her application
on 6th
July 2010, for relief from sanctions for failure to file and exchange witness
statements on or before 5th
May 2009 and for an extension of time to file witness
statements, the witness statement of Dr. Santana and supplemental affidavit of
the Claimant. The application was more than 14 months after the deadline. The
Claimant stated as reasons for failure to comply with the Court’s order that the
documentation and paperwork in this matter was voluminous and that it was only
recently in preparing this matter and checking on all that is to be done in
preparation for trial that she discovered among papers a copy of a statement
prepared for signature of Dr. David Santana on the file. On further enquiries it
became apparent that the said statement was never signed nor filed. The reason
9
for not filing the statement or discovering this oversight before was due to
inadvertence and lack of continuity in the conduct of this matter.
Lloyd Charles & Ors. v. North West Regional Health Authority CV
2008/2172- The Claimants' application filed on 27th
April 2011 seeks an
extension of time to file and serve their witness statements and for relief from
sanctions. The attorney for the Claimants submitted that the second claimant
had signed and sworn to his statement on the 5th February, 2010 so had done
all that was necessary, on the deadline date, to comply with the order. However
on the deadline date, the court office refused to accept his witness statement for
filing because it was on long paper; the second claimant had already left to do
business in San Fernando so could not return that day to rectify the default and
the first claimant was out of the jurisdiction; Mrs. Hyacinth Griffith, in a bid to
meet the deadlines set by the court, signed the statements on behalf of both
claimants; the documents filed on 5th February, 2010 were “witness summaries”
and the court was asked to exercise its discretion and so declare and allow their
use at the trial; the claimants had always demonstrated interest in pursuing their
claim; the “unless order” was draconian and made when the claimants were
unrepresented in court; and the claimants were the ones likely to be prejudiced
by having their claim struck out. The Court held as at 5th
February 2010, there
was non-compliance by the claimants with the unless order, the consequence of
that was that the claim automatically stood struck out.
In granting a relief from sanctions application in C.A CIV. 15/11 Reed Monza
(Trinidad) Limited & Ors. v. PriceWaterhouseCoopers Limited & Ors.- The
Court of Appeal stated that the order made at CMC is ambiguous and open to
more than one interpretation. Therefore the judge erred in calculating the delay;
as such the conclusion of the judge that there was a six week delay on the part
of the Appellants cannot be upheld.
10
In CV 2010-03761 Roger Alexander v Alicia House Limited the Court did not
apply the 26.7 factors in granting relief.
7. It will be wrong to fetter the Court’s discretion by reference to these decisions as
each Court either in granting or refusing relief from sanctions is in fact making
delicate fact based decisions for the proper management of the case. The
authorities however do underscore the fundamental principle enunciated by
Jamadar JA in Miguel Regis6 that in managing cases the court is keen on
promoting a culture of compliance and eroding the vicious cycle of laissez faire.
8. Jamadar JA in AG v Miguel Regis explained the nature of the discretion to be
exercised in dealing with relief from sanction applications:
“At every level of consideration in Part 26.7 there is the necessity for the
exercise of judicial evaluation, analysis and discretion. The fact of a
threshold does not remove judicial discretion or force judges to
‘mechanistically apply rules to shut litigants out’. All that a threshold does
is to structure the weighing and balancing of values and consequently the
exercise of judicial discretion. This structuring (weighing and balancing) of
values is a normative act designed to assign to values their appropriate
place at this time in the scheme of Part 26.7. It is purposeful. It does not
negate the exercise of judicial discretion, though it does regulate it. What
is prompt, whether there is intentionality or good explanation or general
compliance, all involve the engagement of the judge in the judicial process
of sifting, weighing and evaluating fact and circumstance before arriving at
a decision. These judicial functions all constitute the exercise of judicial
discretion. Judicial discretion implies a power to choose, decide and
determine according to one’s own judgment. It is a power to be exercised,
not arbitrarily or according to the subjective whims of a judicial officer, but,
in accordance with the will of the law. From this general proposition it
6 Ibid
11
follows that there are many aspects of judicial discretion. However, what is
common to all is choice.”
9. This choice is made by the Court in the context that civil litigation is court driven
applying the principles of equality, proportionality and economy. It must be
remembered that the exercise of the discretion conferred by the rules under the
relief from sanctions regime is part of the exercise of the court’s case management
powers. The context of case management is to further the overriding objective.
Specifically rule 25.1 (g) CPR outlines one of the Court’s duties in furthering the
overriding objective by actively managing cases as including the fixing of timetables
or otherwise controlling the progress of the case. The Court will therefore have as its
axis the notion of dealing with cases justly. It does this by the court’s actively
managing cases and exercising the discretion conferred on it by the rules. Although
a general appeal to the overriding objective in considering a relief from sanction
application is misplaced as the rules specifically set out how the discretion is to be
exercised, it cannot be gainsaid that the entire context of the grant of relief from
sanction is a case management exercise to further the overriding objective. These
questions of promptitude, good reason, general compliance and intentionality are all
the sign posts of efficient litigation built on our experience of the delay which
burdened litigation under the previous rules. They now point a clear direction to the
development of a new culture of litigation designed to minimize protracted delay and
as well to demystify the manner in which a court will exercise its discretion in dealing
with these applications.
10. Jamadar JA in Miguel Regis quite usefully links the question of judicial discretion
within the structure of rule 26.7 CPR.
“Part 26.7 is therefore full of opportunities for the exercise of judicial
discretion. However this discretion is regulated by the structure of the rule
in order to reduce subjectivity, prioritize values and to achieve a specific
aim with reasonable predictability and equality. In addition, as the Court of
Appeal has been at pains to explain, context and circumstance are the
12
primary factors in the analysis and evaluation of the Part 26.7
requirements. Thus, what may be considered a good explanation may
vary not only in the evaluation under each limb in the circumstances of
each case, but also with the stage of the proceedings; for example what
may be a good explanation when the filing of an application occurs early
in the process may not be so later on or after judgment and on an appeal.
So also in relation to whether the application for relief is prompt or
whether there is intentionality or general compliance. These are all
matters for the discretion of the judge. It is therefore an unfortunate
mistake to assume that a judge who is called to apply Part 26.7 is
somehow reduced to a mere automaton.”
11. The Claimant has argued that the discretion must be exercised in a manner in
accordance with the constitution and that it does not contravene the Claimant’s
rights to the protection of the law and a right to a fair hearing. Unfortunately the
authorities relied upon by the Claimant do not deal with the relief from sanction
regime in this jurisdiction. This learning in Regis on the exercise of the discretion
has been met with the approval of the Privy Council in the recent authority of Keron
Matthews and Universal Projects.
12. Before I proceed to deal with the present application and weigh up the relevant
considerations within its proper factual context I must make two observations.
13. First this Court will encourage parties at all stages in litigation to arrive at consensus
in procedural applications. Protracted procedural applications are a waste of judicial
and litigants resources. Where there can be agreement parties should work towards
consensus. This applies to extensions of time, admissibility of documents,
disclosure, expert evidence, further information, filing joint statements, the entire list
of procedural matters that will involve managing a case towards a trial. Indeed it is
the duty of the Court in actively managing cases to encourage the parties to co-
operate with each other in the conduct of proceedings. Rule 1.3 CPR also imposes
13
an obligation on the parties themselves to co-operate with one another to further the
overriding objective. In Morris v Bank of America National Trust and Savings
Association [2009] 1 AER 954 it was observed that in complex cases “the
advocates who are expected to be instructed to appear at the trial should attend
case management conferences or pre trial reviews before the judge so that they can
discuss with him in a collaborative manner ways in which the conduct of the trial
might be made less burdensome.”
14. In Western Australia, the Honourable Chief Justice W. Martin explained the
reduction in procedural applications by utilizing a philosophy of consensus in
working out procedural matters:
“In Western Australia, we have actively and aggressively discouraged
interlocutory disputes. We've made no secret about that. We have embraced the
notion of proportionality which was first identified by Lord Woolfe and we apply it
forcefully. If someone comes along and says, "We want to have a day's hearing
about this particular point on the pleading", we might look at it and say, "No, that
day and the time and money spent on that day is not justified by the significance
of that issue to the just disposition of the case, so we will hear the application,
which is dismissed". That approach is not uncommon. We also have the benefit
of a very important rule of court, Order 54 rule 9, which requires the parties to
confer before they can initiate any interlocutory dispute. In judicial decisions, we
have made it clear what conferral means. Conferral does not mean writing an
aggressive and derogatory letter to the other parties' solicitors and sending a
copy to the client. Conferral means, ideally, a face-to-face meeting between
people with authority to resolve the interlocutory dispute, and at a minimum, it
means a telephone conversation between people with that authority. We have
found that insistence upon compliance with this rule has been enormously
successful in discouraging the volume of interlocutory disputes in the court.”7
7 “The Future of Case Management” speech of the Hon Chief Justice W Martin delivered at the Australian Legal
Convention, Perth 19th
Sept 2009.
14
15. The proliferation of procedural disputes should be minimized. If the credo of
procedural consensus is adopted as part of the philosophy of civil litigation, cases
may be managed more efficiently and effectively. It will also reduce the temptation
to engage in procedural wrangling for mere tactics or as battles for costs. Of course
this will be subject to the monitoring and authorization of the Court. To give an
example I have frequently indicated to parties that relief from sanction applications
can be reduced if parties collaborate and make joint applications to vary the court’s
timetable under rule 27. These can be dealt with in chambers without a hearing and
via electronic means. Having said that I have noted an increase in the use of this
procedure. While this is encouraging as it minimizes the procedural battles, the
Court will be keen to ensure that this facility is not abused so as to affect trial dates
or significant pre trial activity. The parties may request that a timetable be varied
however they must not be lulled into a belief that they are guaranteed that a court
will always accede to the request. We must all be conscious of the time within which
claims under the CPR are to be resolved.
16. The second observation is the use of alternative dispute resolution in the just
disposal of cases. I had earlier mentioned the question of mediation in this matter
but was not met with an enthusiastic response from any party. Claims in medical
negligence are classic cases that are “mediate-able”. There are reputations at stake
which can well do without the publicity and notoriety attendant on the
contemporaneous reporting of a trial. In most cases much damage has already
been done to a doctor’s reputation by the reporting of the allegations of negligence
even if ultimately he/she succeeds in defending the litigation. Furthermore in this
type of litigation both parties engage in a risk taking exercise in a highly specialized
area of personal injury claims which would involve heavy investment in the use of
experts and with an uncertain outcome. A medical expert owes different obligations
to the court and there is a greater degree of unpredictability in the outcome of that
experts cross examination. Finally creative options can be obtained in mediation in
medical negligence claims beyond money claims. Modifications and
15
standardizations of medical practice, establishment of future policy, focusing on
future customer care are all results which can be obtained through mediation.
17. Mediation as a flexible procedure provide therefore for the parties that win win result
which is unattainable in a judicial determination. Colman J observed in Cable and
Wireless plc v IBM United Kingdom Limited [2003] EWHC 316 “Mediation as a
tool for dispute resolution is not designed to achieve solutions which reflect the
precise legal rights and obligations of the parties but rather solutions which are
mutually commercially acceptable at the time of the mediation.”
18. In the Court annexed mediation programme I am aware that medical negligence
claims were settled in mediation. I am also aware that attorneys in this matter have
been exposed to mediation at varying levels and well placed to advise their clients
on the utility of this procedure. Medical institutions will do well to establish mediation
units to deal with customer complaints which may avert litigation and will establish a
reputation of customer oriented service. The submission to mediation is not a sign of
weakness; it is not an admission of liability. It is a more efficient use of the litigants’
resources and is conducted within the context of the rules which encourages parties
to settle claims through the use of alternative dispute resolution. Quite apart from
these rules the Court can order parties to mediate pursuant to section 14 of the
Mediation Act.
19. It is a pity that this has not yet been explored by the parties in this case. However
these two aspects highlight the various levels of participation available to the litigant
under the rules to move matters forward to a resolution.
20. Returning to the Claimant’s application firstly for relief from sanction, if I examine
this application holistically, this is a claim in a highly specialized area of law where
expert evidence is necessary to assist the court to determine questions of breach
and causation. There was no trial date set. The application for relief from sanction
was made about one month prior to a case management conference on 23rd
March
16
2009. At that time the Claimants indicated that their witness statements would have
been ready. The second Defendant had already had the benefit of one extension of
time to file his witness statement. Ironically the reason for the extension to file the
witness statement was to consider the list of documents which was filed by the
Claimant out of time. Previous default by the Claimant occurred while the
proceedings were governed under the former rules of Supreme Court and I have
grave doubts as to whether that default can now be factored post conversion under
rule 26.7 CPR. There is no evidence by the Defendants disputing the Claimant’s
evidence on this application and nothing to suggest they will be prejudiced by the
grant of relief. If the application is refused that is the end of the matter as there is no
evidence proffered against the Defendants’. If the application is allowed the court
must proceed to manage this claim in giving directions for exchanging witness
statements, making allowance for procedural applications to be made one pre trial
review and a trial both of which can be facilitated prior to the Easter break. If the
applicant crosses the threshold the Court will have to weigh the prospect of
committing further resources to managing this claim with the economy of simply
ending it here.
21. The Relief from sanction application-witness statements.
This application will be granted. I have done so as based on the factual context of
this case the applicant has crossed the threshold and I am satisfied that the
exercise of my discretion in the Claimant’s favor having regard to the discretionary
factors of 26.7 (4) furthers the overriding objective. In summary the reasons for
granting this application are as follows:
22. Promptitude:
The deadline for filing the witness statements was 17th
December 2009. I accept as
a legitimate excuse the Claimant’s inability to obtain expert evidence to support a
claim of medical negligence. In South West Regional Health Authority v Harrilal
Samdaye Action/Suit Number: C.A.CIV.60/2008 it is now quite settled that a
medical practitioner is not obliged to achieve success in every case he treats. His
17
duty is to exercise reasonable skill and care in his treatment of the patient. See
Deonarine v Ramlal, Civ. App. #28/2003 where Mendonça J A, applying the
dictum of Mc Nair J in Bolam v Friern Hospital Management Committee [1957] 2
All E R 118, said:
“The principle has been restated over the years but perhaps the most often
quoted formulation is the direction of Mc Nair J to the jury in Bolam v Friern
Hospital Management Committee [1957] 2 All E R 118 which is now commonly
referred to as the Bolam test. In that case Mc Nair J stated (at p. 121-122): ‘How
do you test whether this act or failure is negligent? In an ordinary case it is
generally said, that you judge that by the action of the man in the street. He is
the ordinary man. In one case it has been said that you judge that by the conduct
of the man on top of the Clapham omnibus. He is the ordinary man. But where
you get a situation which involves the use of some special skill or competence,
then the test whether there has been negligence or not is not the test of the man
on top of the Clapham omnibus, because he has not got this special skill. The
test is the standard of the ordinary skilled man exercising and professing to have
that special skill. A man need not possess the highest expert skill at the risk of
being found negligent. It is well established law that it is sufficient that he
exercises the ordinary skill of an ordinary competent man exercising that
particular art … A doctor is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of medical men skilled
in that particular art … Putting it the other way around a doctor is not negligent, if
he is acting in accordance with such a practice, merely because there is a body
of opinion that takes a contrary view.”
It is also settled that a hospital is liable for the negligent acts of its professional
servants which occur in the course of their employment; see in particular, the
judgment of Denning L.J. in Cassidy v Ministry of Health [1951] 1 All E R 574.
Since the hospital authorities themselves do not treat patients, the applicable
standard by which any negligence of its servants will be judged and for which the
hospital authorities will be vicariously liable is the Bolam standard. Where, as in this
18
case, a claimant alleges that the negligence is due to the fault of the medical
authority itself, the liability is direct.
23. To gather evidence to achieve this standard is therefore a serious obligation and not
one to be taken lightly. The fact is that the Claimant had rest comfortably since 2007
on the assurance of obtaining her expert evidence of Dr. Waveny Charles. This
witness however declined to participate further in these proceeding and that was
confirmed on 11th
November 2009 less than a month before the deadline. One could
say then that an application for an extension of time should have been filed at that
stage by the Claimants. However, the uncontroverted evidence in this case is (a)
that the evidence of Dr. Sawh would have been incomplete without the input and
further testimony of a hematologist as he explained in his letter. Those reports were
received on 18th
and 19th
January 2010; (b) that as can be inferred from paragraph
12 of the Nyree Alfonso Affidavit, and expressed in paragraph 6 of the supplemental
affidavit without the evidence of the two witnesses forthcoming she simply would
have had to abandon the case for her inability to surmount the Bolam test. Indeed it
would appear that had the Claimant made an application for an extension of time
simpliciter when Dr Charles “abandoned” the Claimant no assurances could be
made to the court as to when any expert evidence would be forthcoming until new
experts were retained.
24. The application was made less than a month after receiving the reports on 2nd
February 2010 but more significantly more than a month before the next CMC. I am
unable to find a note on the file to suggest that the Master gave leave on 19th
January for the filing of this application. However I note that on that occasion
indulgences were granted to both the Defendants to extend time to file their witness
statements and to file supplemental bundles.
25. In the context of those facts the application was made promptly. Indeed in my view
that application could have been dealt with consensually long before the 23rd
March
19
2010 so that matters could have progressed to further management of the evidence
and the issues to be tried.
26. Good explanation
Some of this has already been stated in my reasons that the application was prompt
I accept that (a) without this new evidence the Claimant would have abandoned the
claim (b) it would have been futile to file a witness statement on behalf of the
Claimant alone (c) I accept as a matter of logic, prudence and common sense that
consultation with new experts was required before this application could have been
made and this cumulatively accounted for the breach of the deadline. This is not an
explanation which smacks of laissez faire. It appeared to me that the Claimant was
about to pull the plug on the litigation until she obtained the fresh medical evidence.
27. Intention
Again I accept that there was no intention to defy the Court’s orders. It is in my view
a distinction between knowledge that the deadline has passed and an intention to
breach the order. The Claimant cannot be criticized for adopting the course of action
based on the advice by her counsel in obtaining the other medical reports before
venturing to file the wrong statement.
28. General compliance
This has caused me the most anxiety having regard to the procedural history of this
matter and the delay already in prosecuting the matter. However, I am of the view
that 26.7 (3) (c) CPR in “converted cases”8 must be read prospectively that is to
consider compliance after proceedings have been brought under the new rules. To
do otherwise would be to implicitly impose a penalty or fetter on a party in the
prosecution of litigation when none existed. Indeed if that was not the case, then
any party in breach of any pre CPR rule or direction would be automatically
disentitled to seek relief from sanctions when the matter is converted. In fact under
the old rules there were procedures available to deal with delay one such
20
opportunity arose at the hearing of the order 3 rule 6 application but the application
was unopposed.
A construction that 26.7(3) (c) applies to pre CPR rules would render that rule
retrospective in operation. In Yew Bon Tew v Kenderan Bas Mara Lord Brightman
stated:
“There is a common law a prima facie rule of construction that a statute should
not be interpreted retrospectively so as to impair an existing right or obligation
unless that result is unavoidable on the language used. A statute is retrospective
if it takes away or impairs a vested right acquired under existing laws or creates
a new obligation or imposes a new duty, or attaches a new disability in regard to
events already past.”
Hence to construe this rule to apply to pre CPR conduct will give rise to a new
disability under the CPR where in light of a prior breach the litigant is automatically
disentitled to obtain relief. Such a construction defeats the rationale for providing for
a relief from sanction provisions in the new rules. At the very least under the
common law a person is not to be penalised except under clear law. See Benion on
Statutory Interpretation 5th
ed p 825. The entire pre CPR regime litigation is
conducted without thought of a possible consequence of default generally being
taken into account unless within the context of an application to dismiss for want of
prosecution or an extension of time or any such procedural application made under
the “old rules”.
29. Relief from Sanction- list of documents
30. Promptitude
For the reasons already explained the application was made promptly. I note as well
that the lists were already filed.
8 Cases filed under the Rules of Supreme Court (1975) to which the new rules applied by notice or order issued
under Part 80 CPR
21
31. Good explanation
This court is not unsympathetic to the attorney’s illness in the family. I am surprised
that attorneys’ themselves could not deal with this matter consensually having
regard to the personal difficulty of the attorney.
32. Intentionality does not arise having regard to the explanation proffered.
33. Both applications for relief from sanctions therefore cross the threshold. In
considering the rule 26.7 (4) CPR factors I am of the view that my discretion should
be exercised in favour of granting relief for the following reasons:
34. Blameworthiness of party/attorney.
The failure to comply in filing the witness statements and list of documents was due
to external factors beyond the control of either the attorney at law or the lay client.
With regard to the witness statements I have explained the circumstances beyond
the control of the attorney and client. With regard to the explanation in relation to the
illness in the attorney’s family, illness can strike at any moment and it produces a
mixed bag of unexpected results and consequences which can upset well laid plans.
35. Can the breach be remedied within a reasonable time
It appears from the Claimant’s affidavits that the breach could have been remedied
since March 2010 in relation to the witness statements. The list of documents has
already been filed.
36. Impact on trial date
There is no trial date as yet. It falls to this Court to manage this case to a certain trial
date.
37. Interest of administration of justice:
There is no affidavit setting out any prejudice to the Defendants if relief is granted. It
is accepted that protracted litigation alone can be evidence of prejudice. The Court
22
must allocate a fair share of its resources to each claim and certainly a litigant
cannot be allowed to overstay his welcome. However in balancing the respective
rights and risks of the parties I can see no prejudice to granting relief but protecting
the Defendants by an appropriate unless order and order for costs. In this way I
would have kept the parties on an equal footing. Imposing short deadlines with
unless orders are a proportional response to the breach. This is now the first
attempt by me to manage this claim, it previously having been managed by the
Master and it is now this Court’s duty to make the appropriate directions to drive this
case along the litigation path.
38. Expert evidence
I am of the view that the proposed witnesses are expert witnesses and permission
must be granted at this stage to use their evidence at the trial. These are all medical
practitioners volunteering their opinion on the medical records and history of the
deceased. They have no personal knowledge of the facts of this case. Their views
necessarily are opinion evidence and further evidence of experts. Their evidence is
critical for the court to appreciate the claim of the Claimant. There is no good
reason not to grant permission to these witnesses to give their expert testimony and
medical reports.
39. Conclusion
In granting this application I have not detracted nor sought to detract from the
philosophy of the rules or the discipline that ought to be inculcated in civil litigation. It
is against the special circumstances of a highly specialised area of law of medical
negligence that this Claimant at the last moment was left in the lurch by her medial
witnesses. To shut this case out by taking a pedantic approach to times and
minutiae of diaries would in the context of this case be inappropriate and
disproportionate to the stage of the proceedings.
40. It is now my duty to manage this case. I do so now by making the following orders:
23
a) The Claimant be and is hereby granted relief from automatic sanctions for
failing to file and exchange her witness statements and file and serve her list
of documents in compliance with the Order of Master Paray Durity dated the
20th
day of July 2009.
b) The time is extended for the Claimant to file and exchange her witness
statements to on or before the 30th
day of December 2011. In default the
Claim stands dismissed.
c) The time is extended for the filing of the Claimant’s lists of documents to the
16th
day of December 2009 and for service of same to on or before the 30th
day of December 2011.
d) Permission is granted to the Claimant to rely on the expert evidence and
reports of Dr. Phyllis Pitt Millerm, Dr. Altheia Jone Leconte and Dr. Lal Sawh.
e) Permission is granted to the Claimant to file and serve a supplemental list of
documents to on or before the 30th
day of December 2011 disclosing and
providing copies of the reports of the medical experts. In default the Claimant
shall not rely or use copies of the reports at the Trial.
f) All parties are to file and serve their procedural applications on or before the
30th
day of January 2011.
g) The parties are to make attempts to mediate this Claim and to report to the
Court on the 15th
day of January 2011 by direct correspondence to the
Court’s Judicial Support Officer and by e-mail to
[email protected] on the results of their discussions or
agreement to mediate.
24
h) The Claimant do pay to the Defendants the cost of this application to be
assessed by this Court in default of agreement.
i) A Pre Trial Review is fixed for the 28th
day of February 2012 at 10:15am in
Court Room POS24, Hall of Justice, Knox Street, Port of Spain.
j) A Trial Window will be scheduled in the months of March or April 2012 to be
confirmed by the parties with the Court’s Judicial Support Officer on or before
the 30th
day of December 2011.
k) The Claimant do pay to the Defendants’ their costs of the application to be
assessed in default of agreement.
l) Leave to appeal is granted to the Defendants.
Dated this 19th
December 2011
Vasheist Kokaram
Judge