[1] Troy Louis Claimant v [1] Constable Glendon Samuel [2] Attorney General of Dominica Defendants [ECSC]

• Jurisdiction: Dominica
• Judge: Thomas, J [Ag]
• Judgment Date: 20 May 2014
• Judgment citation (vLex): [2014] ECSC J0520-1
• Court: High Court (Dominica)
• Docket Number: CLAIM NO. DOMHCV2010/0038
• Date: 20 May 2014

[2014] ECSC J0520-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. DOMHCV2010/0038

Between:

[1] Troy Louis

Claimant

and

[1] Constable Glendon Samuel

[2] Attorney General of Dominica

Defendants

Appearances:

Mr. Stephen Isidore and Mr. Christopher Forde and Ms. Ernette Kangal of Isidore and Associates for the Claimant

Ms. Joelle Harris of the Attorney General's Chambers for the Defendants

DECISION

Thomas, J [Ag]

1 The matter before the court stems from a procedure or event in the trial of the matter at Bar where the court allowed the claimant's witness statements to be filed outside the time limit of the case management order to be entered into evidence. Later however the defendants sought to adduce the evidence contained in their witness statements which were filed outside the time specified by the court, to be adduced into evidence. There was an objection and an application by learned counsel for the claimant. In both cases there were no applications for relief from sanctions.

2 The basic procedural events which inform this matter are:

1

The learned Master on 1st February 2012 at the case management conference ordered witness statements to be filed and exchanged by 2nd May 2012. 2. The witness statements on behalf of the claimants were filed on 3rd May 2012. 3. A notice of filing of the witness statements was not filed in the matter and served on the defendants, but the witness statements were filed in a sealed envelope on 3rd May 2012 in accordance with Rule 29.7 (2) of CPR 2000 4. The claimant's witness statements were included in the Trial Bundle filed by the claimant on 31st July 2013. 5. The Trial Bundle of 31st July 2013 was served on the defendants on 21st August 2013 6. The witness statements on behalf of the defendants are stamped as having been filed on 31st July 2012 and are contained in Trial Bundle filed by the claimant on 13th March 2014 and served on the defendants on 13th March 2014. 7. Trial date of 21st October, 2013 was vacated and new date of 13th March 2014 was fixed.

3 In the context of the application by learned counsel for the claimant, the court ordered submissions to be filed in the matter having regard to the circumstances of non-compliance with the case management order on both sides and the permission granted to the claimant with respect to the witness statements filed outside of the specified time limit.

4 Learned counsel for the claimant, Mr. Stephen Isidore, in his submissions cited basically the same rules but also cited other cases. 1 Learned counsel on both sides advanced a

number of issues but on the courts calculation the basic issue to be determined is whether the defendants should be permitted to call witness in view of the fact that the witness statements were filed out of the time ordered and no application was made for relief from sanctions

5 Learned counsel for the defendants, Ms. Joelle A. V. Harris, referred to several provisions of CPR 20002 relating to the court's powers to deal with witness statements filed otherwise than in accordance with the case management order. Leading cases 3 were also cited and analysed in this connection.

Submissions

6 Learned counsel, Mr. Isidore, after making reference to the requirements under Rule 26.8 of CPR 2000 for application to be made promptly in the context of relief from sanctions as enunciated in Robin Mark Darby v Liat (1974) Ltd goes on to give the following summary:

"1. The oral undertaking by Counsel for the claimant, not to object to the Defendants application for relief from sanctions for the late filing of the Defendant's witness statements is not sufficient to vitiate the need for the Defendant to seek relief from sanctions. The Rules do not provide for oral undertakings to be taken as acquiescence but rather that if the parties to litigate agree to vary the Court's timetable a consent application should be filed. There is no communication evidencing such agreement and no consent application made by the Defendants. In the circumstances, the making of the application for relief was of utmost importance.

2. The Defendant has not satisfied the requirements for the Court to exercise its discretion to grant relief from sanction under Part 29.11 (2) which they seek to rely on. The reason given by the Defendants for not having made the requisite application for relief from sanctions does not fall within the ambit of incidents that the Court would grant relief. Further, the degree of the non-compliance is what the Court regards as serious and inexcusable and thus not entitled to any indulgence from the Court.

3. The Claimant's witness statement though submitted to the Court on the due date but stamped as having been filed half an hour in the first business hour of the following day, 8:30am in keeping with Registry's policy decision, was not filed at variance with the Case Management Order, as there is no practice direction or rule which states that this is the correct procedure. However, any application for relief by the Claimant would have been favourably granted as the Court would deem narrowly missing the deadline for filing half an hour into the first business hour of the next working day as trivial and excusable and would usually over look such triviality. Thus, the Claimant's witness statement would more than likely have been tendered as evidence which is proper before the Court. In any event, this is a non-issue. The Claimant has already closed its case.

4. The effect of the Claimant having tendered its witness statements and closed its case would be regarded as evidence which is proper before the Court which the Defendants had an opportunity to cross examine on. Consequently, the Defendant's assertion that the Claimant's witness statement be deemed also to have been filed out of time cannot be entertained having regard to the fact that the claimant's witness statements are already in evidence"

7 The following extracts are taken from the submissions on behalf of the defendants:

"36. The Defendants' witness statements were filed several months after the expiration of the time required in the 1 ^st February, 2012 Order of the court. As such, CPR 29.11 was invoked. The Defendants applied thereunder and rely on the fact that the parties had agreed to the Defendants' late filing of witness statements and that Counsel for the Claimant had made all assurances that he would not object to same. This said assurance was again expressed before the court on the 13 ^th March 2014 when Counsel declared that everything was in Order concerning the documents forming part of the Trial Bundle.

37. The facts in Treasure Island case, a Court of Appeal matter, a very similar and the issues raised therein are almost identical to those raised in the present case. It is submitted that the principles applied in Treasure Islandmust be applied in the present case in light of the fact that similar 'special circumstances' arise out of the behavior of the parties (who accommodate each other until the "ambush" at the trial on the 14 ^th April, 2014). It is further submitted that, following the ruling in Treasure Island expecting...