Chankersingh et Al v Gittens

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Smith, J.A.
• Judgment Date: 01 June 2011
• Neutral Citation: TT 2011 CA 16
• Docket Number: Civil Appeal No. 10 of 2011
• Date: 01 June 2011

Court of Appeal

Mendonca, J.A.; Bereaux, J.A.; Smith, J.A.

Civil Appeal No. 10 of 2011

Chankersingh et al

and

Gittens

Appearances:

Mr. R. Persad instructed by Mr. S. Parsad for the appellants

Mr. It Ramoutar instructed by Mr. T. Dassyne for the respondent

Civil practice and procedure - Fresh witness statement — Whether Part 27.7 makes specific provision for splitting of a trial at Case Management Conference — Whether trial Judge had jurisdiction to order separation of matter — Whether fresh witness statement should be permitted.

I agree with the Judgment of Smith J.A. and have nothing to add.

A. Mendonca

Justice of Appeal

I also agree.

N. Bereaux

Justice of Appeal

Smith, J.A.

1 In this procedural appeal, the appellants challenge the decision of Dean-Armorer, J. to allow the respondent to file fresh evidence in support of an Assessment of Damages. For the reasons that appear hereunder I allow the respondent to file fresh evidence; however, I vary the order of Dean-Armorer, J. to the extent that I will limit the fresh evidence to be filed to the matters as stated at paragraph 8 of the affidavit of Lawrence Ollivierra tiled on the 23rd November 2009.

Brief History of The Matter

2 One Garth La Motte died in a collision on 17th September 2005. His Administratrix (the respondent in this appeal) commenced an action against the appellants to recover damages.

3 This action progressed to trial and was adjourned for varying reasons. Several attempts were made to settle this matter. These attempts all failed and the matter was again set for trial on the 25th September 2008. On that date, the appellant made several objections to certain evidence and the court made directions to facilitate the proper reception of evidence.

4 On the 15th July 2009 the parties entered a consent order in this action. This order was made simultaneously with an (apparently oral) application to adduce fresh evidence, which formed part of the consent order. [See paragraph 16 of the ruling of Dean-Armorer, J. dated 3 ^rd February, 2011]

The consent order that was made on the15th July 2009 is important to this appeal and I will set out its main terms.

The order recites in part that” Upon this matter being listed for a Pre Trial Review … It is ordered that:–

• (1) By consent judgment for the claimant against the defendant(s) as to 75% of liability.

• (2) Damages to be assessed in default of Agreement.

• (3) Mr. Roopnarine (Counsel for the respondent) to make a formal application for amplification…”

5 There has been no appeal against this order.

6 On further “management” of this action an issue arose as to the fresh evidence on the assessment of damages. As a result, the respondent filed a formal Application for leave to amplify the evidence in her original witness statements.

7 On the 12th January 2011 Dean-Armorer, J. ruled that the respondent was entitled to file fresh witness statements. The appellants have appealed this decision.

8 The written orders that Dean-Armorer J. made on 12th January 2011 have not been produced on this appeal. The appellant contends that the orders were:–

• (i) That the trial of this Action had been split having regard to the consent order made on 15th July 2009 (see paragraph 4 above).

• (ii) That the respondent may now adduce further and/or fresh evidence

• (iii) That witness statements and/or summaries are to be filed

• (iv) Pre Trial review scheduled for 6th April 2011.

9 I mention the orders of the 12th January 2011 at this stage because counsel for the respondent did not expressly agree that these were the orders made. In argument on this appeal, he grudgingly conceded that these orders seem to have been made. [See page 18 and 19 of the transcript of proceeding in the Court of Appeal]

Further, Dean-Armorer, J. states at paragraph 17 of her Ruling that the consent order of the 15th July 2009 did not constitute a splitting of the trial. This is contrary to what counsel for the appellant states was the first order made by Dean-Armorer, J. on the 12th January, 2011. [See paragraph 8(i) above]

10 In spite of this divergence of opinion as to the orders made on the 12th January 2011, I will demonstrate later in this judgment that whatever the actual order that was made with respect to the “splitting” of the trial, the outcome of this appeal would be the same (see paragraphs 16 and 17 below).

Analysis

11 The case for the appellants is that the decision of Dean-Armorer, J. to split the trial and/or to make the ensuing orders for the respondent to file further witness statements was wrong. The case for the appellants is based on their interpretation of Part 27.7 of the Civil Proceedings Rules 1998 (the C.P.R.).

12 The respondent argues that Part 16.4 of the CPR expressly authorized Dean-Armorer, J. to make the orders for the separate hearing of the assessment of damages and for the filing of fresh witness statements.

13 I find that the arguments of the appellants are without merit. Dean-Armorer, J. was entitled to make orders to have a separate hearing of the assessment of Damages and the order to file further, but limited witness statements.

Re Part 27.7 of the C.P.R.

14 Part 27 of the CPR deals with “Case Management Conference - Procedure”

Part 27.7 provides that the court may direct a separate trial of the issues of liability and quantum where two situations exist. In this case no one contends that any of the two situations exist.

The appellants argue that Part 27.7 makes specific provision for the splitting of a trial at a Case Management Conference (C.M.C.). That being the case the appellants state that “Part 27.7 circumscribes the court's discretion in splitting the trial of the issues of liability and quantum: it establishes the parameters of that discretion as being restricted to only where either of the 2 circumstances therein cited pertain….” [See the appellants’ written submissions filed on the 3rd February 2011 at paragraph 2011 at paragraph 10] The appellants argue that since the C.M.C. had long passed before the consent order of the 15th July 2009 and the impugned order of the 12th January 2011, Dean- Armorer, J. should not have split the trial and the matter ought to have proceeded only upon the witness statements that had already been tiled.

This argument is without merit for the reasons which follow.

15 Part 27.7 is merely permissive in terms. It allows for the giving of directions for a separate hearing of liability and quantum at a C.M.C. Part 27.7 does not purport to provide exclusively for the splitting of a trial only at a C.M.C. There are other provisions which allow the separation of issues of liability and quantum at other stages of an action.

So, for instance, Part 39.3 of the C.P.R. makes provisions for the rules relating to a C.M.C. to apply to a Pre-Trial Review (P.T.R.). It states that Parts 25 and 26 of the C.P.R. apply to a P.T.R. as they do to a C.M.C.

Under Part 26.1 of the C.P.R. a court can give a myriad of directions, including the separate trial of issues (26.1(h)); the order in which to try issues 26.1(g)); separation of parts of proceedings 26.1(j)); any other direction for managing the case 26.1(w). Any of these provisions would authorize a court to direct that a trial of the issue of liability be separated or split from the trial of the issue on quantum.

Further Part 26.1(5) expressly states that the list of powers given in Part 26.1 applies in addition to any other powers given to the court by any other rule etc. The power to separate the issue of quantum from liability by virtue of Part 26.1 is in addition to any such power given in Part 27.7. This reinforces the conclusion that Part 27.7 is permissive and not exhaustive or exclusive with respect to the separation of the issue of liability from the issue of quantum.

16 When Part 39.3 and 26 (1) are applied to this case it becomes clear that Dean-Armorer, J. did have the jurisdiction to separate the issue of liability from the issue of quantum either on the 15th July 2009 (the date of the consent order) or the 12th January 2011 (the date of the order under appeal). This is because the matter was then at the stage of a P.T.R. Indeed, counsel for the appellants argue that the matter had been demoted from...