Ansa Technologies Ltd v Gransaull et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Brown-Antoine, J. |
| Judgment Date | 21 April 2010 |
| Neutral Citation | TT 2010 HC 106 |
| Docket Number | 2581 of 1998 |
| Court | High Court (Trinidad and Tobago) |
| Date | 21 April 2010 |
High Court
Brown-Antoine, J.
2581 of 1998
Mr Russell Martineau SC leading Mr Morgan instructed by Ms Charles for the plaintiff.
Mr Martin Daly SC leading Mr Reid instructed by Ms Ferdinand for the defendants.
Civil practice and procedure - Application to re — amend its Statement of Claim — Applicant had been granted leave previously to serve the claim after the prescribed time for doing so had expired and to amend the claim — Amendments agreed to, in part, by defendants — Leave to re — amend not granted for amendments which pleaded a new cause of action did not arise out of facts already pleaded.
This is an application by the plaintiff to re-amend its Statement of Claim. The application was made by notice dated and filed on October 30, 2009. The application for re-amendment is set out at paragraph A of the notice and is as follows-
‘Pursuant to Order 20, rule 5 of the Rules of the Supreme Court, that leave be given to the plaintiff to re-amend its Statement of Claim in the manner shown in green ink in the copy annexed herewith and marked “A”.’
Annexed to the notice is a draft Re-Amended Statement of Claim which sets out the prior amendments (allowed pursuant to the Rules) in red ink and the re-amendments in green ink. Ishould state at the outset that the re-amendments are quite extensive.
By paragraphs B and C of the notice the plaintiff has also applied for an extension of time to issue certain hearsay notices pursuant to Order 38, rules 22, 23 and 24 and to extend the time for the filing of certain witness statements, respectively. These two latter applications have been deferred until hearing and determination of the plaintiff's application at paragraph A.
It is important to set out the history of this matter, from the filing of the writ to the hearing of this application, as aspects of this history are important to a decision in this application.
By writ of summons issued on 13 November, 1998 the plaintiff (then suing as “H.J. Gransaull & Company Limited”) commenced an action for breach of fiduciary duty, breach of duty of fidelity, breach of contract andinterference with contractual relations against the defendants. The plaintiff claimed damages and an order for account and payment of profits from the defendants.
The plaintiff wasgranted leave of a judge to file and serve its statement of claim notwithstanding that the time limited by the Rules of the Supreme Court (“RSC”) for co doing had expired. The Statement of Claim was filed on 18th March, 1999 and the Defence was filed on 28th May, 1999.
By consent the Writ and Statement of Claim was amended pursuant to Order 20, rule 12 of the RSC and refiled on 15th June 2000. This amendment changed the name under which the plaintiff was suing to “ANSA TECHNOLOGIES LIMITED” and made consequential amendments to paragraph 1of the Statement of Claim which explained the need forthis amendment. Otherwise the pleadings remained untouched.
On 22nd November 2000, on the hearing of a Summons for Directions, the Deputy Registrar gave directions for the trial of this action. The matter was then set down for trial. Thereafter there was little activity in this matter until the year 2008.
At a hearing before Hosein, J. on 4th March 2008 the judge gave the following directions:
“1) Witness statements to be filed and exchanged on or before 30th April 2008.
2) Each party to file and exchange its bundle of documents upon which it intends to rely on or before2nd June 2008.
3) An agreed list of issues initialled by counsel for the parties to be filed on or before 23rd June 2008.
4) Submissions on those issues with extracts ofsupporting authorities to be filed and exchanged on orbefore 31st July 2008.
It is further ordered that there shall be strict and timeous compliance with the above directions in default of the sic or any of the said directions by the plaintiff, the action shall thereupon stand dismissed with costs. Upon default of the aforesaid by the defendant the defence shall thereupon stand struck out and judgement shall be entered for the plaintiff with damages to he assessed on a date to be fixed.
Adjourned 22nd September 2008 for trial at 9a.m.”
All of the directions of Hosein, J. at 1 to 4 above were complied with by both sides. Before the date of the trial, by summons dated and filed on 4th September 2008 supported byan affidavit of even date, the plaintiff applied to a judge in chambers for orders pursuant to Order 24, rules 3 and 7 that the defendants make and file affidavits disclosing certain documentation, material to the issues raised in this case. The application was heard byVentour, J. on 5th September 2008, who granted the plaintiff an order in terms of a draft order which substantially reproduced the summons.
In compliance with this order the defendants filed and served two supplemental lists of documents on 16th September 2008 and 6th October 2008. The trial date of 22nd September 2008 was vacated by Hosein, J. and a new trial date setfrom 14th January 2009 for six consecutive days.
In compliance with the order of Hosein, J. (supra at para. 9), the plaintiff had filed witness statements of Walter Keith Welch, Cecil Anthony Beaubrun, and Anthony Norman Sabgaon 30th April 2008.
Before the new trial date, on 8th December 2008 the defendants filed a notice of an application to strike out several paragraphs of the witness statements of Anthony Norman Sabaga and Cecil Anthony Beaubrun. This application was set for hearing on 8th January, 2009, a mere six days prior to the trial date of 14th January, 2009. If the defendants succeeded in this application a substantive portion of the evidence upon which the plaintiff proposed to rely would be excluded from the trial. This would no doubt restrict the plaintiff's ability to prove its case.
On 27th February 2009 this action came up for Pre-Trial Review beforeBoodoosingh, J. Leave was granted to the plaintiff to file the witness statement of Aneal Maharaj on or before 16th March, 2009. The defendants reserved their position with respect to this witness statement. The Pre-Trial Review was then adjourned to 1st April, 2009.
Before this adjourned hearing the plaintiff filed a Notice dated 16th March, 2009 indicating its intention to apply to the judge at the Pre-Trial Review for the order of Boodoosingh, J., giving leave to file the witness statement of Aneal Maharaj, to be vacated and that the witness statement of Maria Daniel be filed in substitution thereof. This notice was supported by an affidavit.
These two applications by the plaintiff and defendants came up several times but were adjourned for various reasons.
The applications eventually came on for hearing before me. At that hearing the plaintiff indicated an intention to file an application to re-amend the Statement of Claim in thisaction. I adjourned hearing of both the plaintiff's and defendants' applications in order that the plaintiff's application for re-amendment could be formally madeby notice supported by affidavit and to give time for the defendants to file an affidavit in opposition to the application to re-amend the Statement of Claim.
The plaintiff filed an affidavit of Frances Bain-Cumberbatch on 20th November 2009 with several attachments, in support of its notice to re-amend. In reply the defendants placedbefore the court the affidavit of Marcelle Ferdinand, dated and filed on 10th December 2009.
I heard legal submissions by Senior Counsel for the plaintiff and thedefendants on 13th January, 20th January and 4th February, 2010. I then indicated that I would deliver my ruling on 10th March 2010. The delivery of this ruling was delayed to today.
The plaintiff has applied to re-amend the name by which it sues the defendants in this action from ‘ANSA TECHNOLOGIES LIMITED’ to ‘ATC LIMITED’ and to make consequential amendments to paragraph 1 of the statement of Claim, which explain the need for such anamendment. Senior Counsel for the defendants had no objection to this amendment. In the circumstances leave is granted to the plaintiff to amend the name by whichplaintiff sues and to amend paragraph 1 as shown in the draft re-amended Statement of Claim.
Counsel for thedefendants has also indicated that he has no objections to the following amendments and they are therefore granted. They are proposed amendments to the paragraphslisted hereunder:
Paragraphs 3, 4, 5, 6, 10(a), 12, 15, 16, and 22.
The relevant limitation period for the causes of action pleaded
The causes of action pleaded in the amended statement of claim are inthe main for breach of fiduciary duty, breach of contract and interference with contractual relations. Mr. Daly for the defendants submitted that the limitation period in respect of the causes of action already pleaded is four years. There was no challenge to this submission by Mr. Martineau. Section 5 of the Limitations of Personal Actions Ordinance provides that:
“All personal and mixed actions whatsoever, shall and may be commenced and sued within four years next after the cause of such actions, and not after:”
Having examined this provision and section 3, the court is of the opinion that section 5 applies to the causes of action pleaded by the plaintiff in the amended statement of claim. The earliest date on which any of the limitation periods in respect of any of the plaintiff's causes of actions expires is 13th November, 1998. This is also the date on which the writ of summons was filed in this action (see para. 5 above).
This application has been stated to be made “pursuant to Order20, rule 5 of the Rules of the Supreme Court”. The provisions of Order 20,...
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