Moonan Rajbansie v Roberts & Company
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, M. |
| Judgment Date | 31 May 2011 |
| Neutral Citation | TT 2011 HC 170 |
| Docket Number | Cv No. 923 OF 2008 (formerly HCA No. 3170 of 1997 |
| Court | High Court (Trinidad and Tobago) |
| Date | 31 May 2011 |
High Court
Mohammed, M.
Cv No. 923 OF 2008 (formerly HCA No. 3170 of 1997
Ms Shaheera Allahar for the claimant
Mr. Shastri Roberts for the defendant.
Civil practice and procedure - Application for extension of time to comply with Order.
The very nature of the application before me is in dispute by the parties. At this stage I will refer to the application filed on February 2, 2010 (“the instant application”) by the claimant, using the heading set out as a “Notice of application for relief from sanctions pursuant to Parts 27.9(2) (3), 26. 1(d), 26.7 and 11.3 of the Civil Proceedings Rules (“the CPR”) for the timetable set by Master Paray-Durity on January 7, 2010 to be varied without a hearing”. The proposed variation was for the claimant to file and serve her witness statements on or before February 17, 2010 and to file and serve her agreed and unagreed statement of facts on or before February 23, 2010. The time previously set by the Master by order dated January 6, 2010 to file the aforesaid documents was February 2, 2010 and February 17, 2010 respectively.
In support of the application are 3 affidavits of instructing attorney for the claimant, Ms Shaheera Allahar filed on June 23, 2010 (“the SA 1 affidavit”), July 7, 2010 (“the SA 2 affidavit”) and November 16, 2010 (“the SA 3 affidavit”) respectively and the claimant's affidavit filed on April 5, 2011 (“the RMR affidavit”). A related action was filed S 1978 of 2003 (now CV 2008-01455) with the same parties and there is an identical application in that matter. In this regard, to save time and costs, the parties have agreed to be bound by my decision on this application for both matters.
On October 31, 2003 the claimant filed this action under the Rules of the Supreme Court 1975 (“the RSC”) against the defendant for damages suffered as a result of the defendant's negligence and/or breach of contract as the claimant's attorney in Civil Appeal 88 of 2000 between the claimant and Ramsaran Moonan. The crux of the claimant's case is that the defendant acted negligently in advising her to appeal the costs award made by Ventour, J. on April 13, 2000 and thereafter to allow the said appeal to be dismissed by the Court of Appeal for non-compliance in accordance with Order 59 of the RSC.
This matter was set down for trial on March 15, 2007 and in accordance with the Part 80 rule 80.3 (1) (b) CPR it was “converted” to the CPR and a notice was issued by the Court Office on November 13, 2008 informing the claimant's attorneys of the CPR case number and that a CMC was scheduled before the Master for July 21, 2008.
On July 14, 2009, the second CMC in this matter, Master Paray-Durity gave directions for:
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(a) Discovery and inspection to take place on or before October 12, 2009;
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(b) Agreed and unagreed bundles of documents to be filed on or before October 30, 2009;
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(c) Agreed and an unagreed statement of issues to be filed and served on or before November 20, 2009;
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(d) Witness statements to be filed and exchanged on or before December 18, 2009;
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(e) Agreed and unagreed statement of facts to be filed and served on or before January 15, 2010;
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(f) Adjourned the CMC to February 24, 2010.
On December 18, 2009 the defendant filed a joint application on behalf of both parties pursuant to Part 27.9(4) and (5) CPR requesting relief from sanction and an extension of time for the parties to comply with the directions of July 14, 2009. On January 6, 2010 Master Paray-Durity granted the order with the extension of time as requested by the parties. The time was extended as follows:
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(a) Discovery and inspection to take place on or before December 22, 2009;
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(b) Agreed and unagreed bundles of documents to be filed and served on or before January 12, 2010;
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(c) Agreed and an unagreed statement of issues to be filed and served on or before January 20, 2010
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(d) Witness statements to be filed and exchanged on or before February 2, 2010;
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(e) Agreed and unagreed statement of facts to be filed and served on or before February 17, 2010.
On October 14, 2009 the claimant filed and served a list of documents and on November 20, 2009 she filed an unagreed statement of issues.
On December 22, 2009 the defendant filed and served its list of documents and on January 12, 2010 the respective index for the claimant's agreed and unagreed bundle of documents was filed and served. The defendant filed its index to its agreed and unagreed bundle of documents on January 18, 2010.
At a case management conference on February 24, 2010 time was extended to March 8, 2010 for the defendant to file and serve its statement of facts and on March 3, 2010 it complied with this direction.
By March 8, 2010 the defendant had fully complied with all the Master's directions but the claimant had not yet filed her witness statements and statement of agreed and unagreed facts which were due on or before February 2, 2010 and February 17, 2010 respectively.
On February 2, 2010 the claimant filed the instant application. On March 22, 2011 the instant application came up before me for the first time. At that hearing Ms Allahar presented a letter to indicate that Counsel for the claimant, Mr. Rambally was ill and could not attend court. At that hearing I expressed my concerns that for more than 1 year an application by the claimant for relief from sanctions was still pending before the court and therefore to make the best use of the court's and parties time I gave directions for the claimant to file and serve submissions and relevant authorities on or before April 5, 2011 and to make any other applications as she may see fit. The defendant was directed to respond with on or before April 18, 2011 and the claimant to reply on or before May 2, 2011. I also informed the parties that upon receipt of the submissions I will fix a date in May 2011 to render my decision.
The claimant filed its submissions on April 5, 2011 together with a notice seeking permission of the court to rely on the RMR affidavit which was annexed to the notice. In response, the defendant filed its submissions on April 18, 2011.
On May 2, 2011 instead of filing its submissions in response the claimant filed an application to be dealt with without a hearing, requesting permission of the court to extend time to June 15, 2011 to file its submissions in reply. The reason for the extension as set out in paragraph 1 of the grounds of the application was that on April 28, 2011 Counsel for the claimant, Mr. Dinesh Rambally was notified of his appointment as an Industrial Court judge with effect from May 2, 2011 and Mr. Rambally had not yet completed the submissions in reply.
In light of the history of this matter, I thought it prudent to seek the views of the attorney for the defendant. As such, I informed the attorney for the claimant through my judicial support officer, that I had no difficulty with an extension to May 18, 2011 but I wanted her to obtain the position of the defendant before I dealt with the application. Not having received a response by May 13, 2011, I scheduled a hearing on May 18, 2011 to deal with the application.
At the hearing of the application, Ms Allahar informed the court that the firm had still not retained a counsel for this matter. Attorney for the defendant submitted that while the purpose of submissions is to assist the court, the position by the claimant was unacceptable and that in any event the claimant's main submissions were already filed.
I informed Ms Allahar that I was not minded to grant an extension to June 15, 2011 as requested since this date was outside the time I had set to render a decision on the instant application, that the claimant's main submissions were already filed and the court in its management of this case is not concerned with the internal reorganization of the claimant's firm of attorneys. I also expressed my grave concern to Ms Allahar of the firm's approach in light of the age of this matter. In the circumstances, I gave Ms Allahar an extension to May 23, 2011 to file her submissions in response and directed that the costs of the application to extend time to file the claimant's submissions in response would be dealt with at the end of the main application. I also fixed May 31, 2011 as the date for the decision. Ms Allahar filed the submissions in reply on May 23, 2011.
There are a few preliminary issues which I must address since they will impact on how I treat with the substance of the instant application before the court. The preliminary issues are:
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(a) Is the instant application for an extension of time to comply with the Order of Master Paray-Durity dated January 6, 2010 or for relief from sanction and an extension of time?
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(b) Did the application comply with the requirements of the CPR when it was made?
The claimant submitted that the instant application was for an extension of time to file her witness statements and statement of agreed and unagreed facts, since it was made before the expiration of the time before any sanction (expressed or implied) was imposed.
In reply, the defendant was of the opinion that the instant application was for relief from sanction for the following reasons:
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- Based on the words “clearly emblazoned in capital letters on the face of the application”.
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- It was filed after the deadline for compliance had passed.
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- The affidavit in support of the application was only filed on June 23, 2010 and the court should deem this as the proper date of the application.
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- The claimant's attorney was aware that at the hearing of the CIVIC on February 24, 2010 the dates for the extension...
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