Cherry Ann Rajkumar v Southern Medical Clinic

• Jurisdiction: Trinidad & Tobago
• Judge: M. Mohammed JA,M. Wilson JA,V. Kokaram JA
• Judgment Date: 20 November 2020
• Neutral Citation: TT 2020 CA 68
• Court: Court of Appeal (Trinidad and Tobago)
• Docket Number: Civil Appeal No. CA S-192/2019
• Date: 20 November 2020

IN THE COURT OF APPEAL

Panel:

M. Mohammed JA

M. Wilson JA

V. Kokaram JA

Civil Appeal No. CA S-192/2019

Claim No. CV2019-00617

Between

Cherry Ann Rajkumar

Appellant/Defendant

and

Southern Medical Clinic

Rupert Indar

Romney Thomas

Respondents/Claimants

Appearances:

Ms. Cherry Ann Rajkumar in person.

Mr. Russell Martineau SC leads Mr. Faarees Hosein instructed by Ms. Melissa Sinanan, Attorneys at Law for the Respondent.

I have read the judgment of Kokaram JA and I agree.

Mark Mohammed

Justice of Appeal

I too agree.

Maria Wilson

Justice of Appeal

1 Ms. Cherry Ann Rajkumar, the Appellant, who appeared before us as a litigant in person, was found by Seepersad J to have breached an injunction made against her to, among other things, desist from publishing defamatory words about the Respondents on her Facebook page 1. While her appeal against that decision is pending, she has filed a number of applications in relation to four decisions 2 made by the Court in these appellate proceedings, which now fall for our determination.

2 The main complaint, it is fair to say though not the only one of Ms. Rajkumar, is that she had unsuccessfully applied to the Court of Appeal for disclosure of information of the connection between Smith JA and other persons which may give rise to an appearance of bias (“the application for disclosure”) 3. Smith JA was on the panel of judges together with Bereaux JA who ruled against Ms. Rajkumar on her procedural application for fresh evidence. There was neither an appeal from that decision nor any application to set that judgment aside on the ground of bias. Instead, Ms. Rajkumar filed her application for disclosure which was dismissed first by Yorke-Soo Hon JA in the Chamber Court on 18 ^th December 2019 and later by the full panel of Jones JA, Bereaux JA and Lucky JA on 10 ^th February 2020. Still dissatisfied, Ms. Rajkumar intends to take that issue to the Judicial Committee of the Privy Council (“the Privy Council”). During the course of those proceedings, several orders for costs were made against

her including the costs of filing the appeal wrongly as a procedural appeal 4

3 This brief synopsis of Ms. Rajkumar's complaint forms the backdrop to the several applications before us: an application for conditional leave to appeal to the Privy Council against the said judgment of Jones JA, Bereaux JA, and Lucky JA and three applications for stays of execution of costs orders 5 made in these appellate proceedings.

4 For the reasons set out in this judgment Ms. Rajkumar's applications will be dismissed. Her application for conditional leave relates to her appeal against the decision on her application for disclosure which is wholly devoid of any foundation or merit. Her applications for a stay of execution all fail to demonstrate any good prospects of success of her appeals. I will deal first with the application for conditional leave followed by the applications for the stay of execution of the several costs orders.

Conditional Leave to Appeal

5 Ms. Rajkumar is seeking conditional leave to appeal to the Privy Council the decision of the full panel of the Court of Appeal 6 delivered on 10 ^th February 2020 which dismissed her application 7 to vary/discharge the order of Yorke-Soo Hon JA dated 18 ^th December 2019. Both Yorke-Soo Hon JA and the full panel had dismissed Ms. Rajkumar's “application for disclosure” with costs. Ms. Rajkumar had filed that application for disclosure following the dismissal of her application dated 30 ^th September 2019 seeking to introduce fresh evidence which became available to her regarding, among other things, the true ages of the Respondents' CT

Scanning equipment and the use of her Facebook page. According to Ms. Rajkumar that evidence was important to prosecute her substantive appeal as it served to demonstrate that she did not make any posts on her Facebook page and that the Respondents had no reasonable belief in the truth of their claims

6 Ms. Rajkumar explained to us in this hearing that her application was not strictly speaking one for fresh evidence but new evidence that had become available. She argued that the Ladd v. Marshall [1954] 1 W.L.R. 1489 principles were not relevant. According to her, she was simply trying to ensure that the Respondents met their duty of candour in ensuring that all the relevant information was before the Court when it granted injunctive relief. She complained that due to the Respondents' failure to give proper disclosure at the hearing for the injunction against her, she should be entitled to fill the gap so to speak with this new evidence. Smith JA and Bereaux JA dismissed that application for fresh evidence with costs.

7 The reasons for the dismissal of that application are not relevant as Ms. Rajkumar did not file any appeal against that decision. For completeness, however, that panel found that the evidence which Ms. Rajkumar was trying to introduce was available to her at the time when she filed the affidavit in response to the application for contempt made by the Respondents. She did not satisfy the Ladd v Marshall principles and there was no merit in the application. Ms. Rajkumar could not intelligibly seek an order for fresh evidence without properly satisfying the test enunciated in Ladd v Marshall 8. Despite Ms. Rajkumar's failure to file an appeal against that decision, unusually, most of her oral arguments before us were an attempt to show how that decision was wrong. Such a collateral attack on that decision without filing an appeal is plainly an abuse of

process

8 Subsequent to the dismissal of the application for fresh evidence by Smith JA and Bereaux JA, the litigation took an unexpected turn. Ms. Rajkumar became concerned as to whether Smith JA approached the application with a closed mind. She then filed her application for disclosure to obtain certain information from the Court to determine if that was so. She believes that based on information that came to her personal knowledge there is a relationship of proximity between Mr. Faarees Hosein, Junior Counsel for the Respondents and Smith JA through the Judge's daughter. She alleged in her affidavit in support, that the wives of Smith JA and Mr. Hosein, who are both attorneys at law, were involved in the admission to the bar of the Judge's daughter.

9 She sought disclosure on whether Ms. Zara Smith is the daughter of Smith JA; whether Ms. Zara Smith was called to the bar by the wife of Mr. Faarees Hosein; and whether the testimonials of Ms. Zara Smith were written by persons in a proximate relationship to the Respondents' attorney at law. In her instant application for conditional leave she states that she also sought disclosure of the relationship between Smith JA and Mrs. Susan Harnaryan-Mortensen (a shareholder and office holder of the First Respondent and sister in law of the Second Respondent). She contended that Mrs. Hanaryan-Mortensen and the wives of Smith JA and Mr. Hosein have been “very close”. 9 While Ms. Rajkumar states that this was one of

her requests for disclosure, such a request did not appear nor feature in her actual application for disclosure before Yorke—Soo Hon JA

10 She contends that prior to the decision of Seepersad J on 18 ^th May 2019, she was unable to access data from Facebook to depose an affidavit except through the expertise of two IT technicians but Smith JA closed his mind on the limitations imposed on her and stated that she possessed the requisite expertise to access the information when, as she contends, she did not.

11 Yorke-Soo Hon JA on 18 ^th December 2019 refused Ms. Rajkumar's application for disclosure and ordered that costs of the application were to be paid by Ms. Rajkumar to the Respondents certified fit for Counsel. Before the Full Court an oral decision was delivered on 10 ^th February 2020 by Bereaux JA dismissing her application for disclosure and ordering costs against her. Bereaux JA noted the following:

• a) The panel struggled to see the point of the application given that there was no appeal from the decision of the two-member panel refusing the application for fresh evidence.

• b) There was no application seeking Smith JA's recusal based on the perceived relationship between Smith JA, his wife and Mr. Hosein's wife.

• c) The application was a fishing expedition in relation to gathering of information to either found an appeal or to found a fresh application for recusal.

• d) There was no causal connection between Smith JA's daughter, Ms. Zara Smith being admitted by the wife of Ms. Hosein. It simply reveals a professional relationship.

• e) Mr. Hosein was not a party to the action.

• f) There was nothing in Ms. Rajkumar's application to the extent or depth sufficient to warrant the disclosure she was seeking.

12 Ms. Rajkumar is now seeking conditional leave to appeal that decision under sections 109(1)(a) and (c) or 109(2)(a) 10 of the Constitution 11. Ms. Rajkumar contends that she satisfies the requirements of these sections: that the decision being appealed was a final one made in civil proceedings; it is of a value above $1,500.00; it is a decision in relation to the interpretation of the Constitution and it is a matter of great, general and public importance. For the reasons set out in this judgment, we are not of the view that this appeal meets the criteria of any of these sections and her application must be dismissed.

Section 109(1) (a)

13 Under Section 109(1) (a) of the Constitution an appeal lies of right to the Privy Council from a final decision in civil proceedings, where the matter in dispute on the appeal to the Privy Council is of the value of $1,500.00 or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of $1,500.00 or upwards. Ms. Rajkumar must not only establish that the decision is a final

decision...