NH International (Caribbean) Ltd v Urban Development Corporation of Trinidad and Tobago Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Stollmever, J. |
| Judgment Date | 09 May 2005 |
| Neutral Citation | TT 2005 HC 37 |
| Docket Number | H.C.A. Cv. 3181 of 2004 |
| Court | High Court (Trinidad and Tobago) |
| Date | 09 May 2005 |
High Court
Stollmeyer, J.
H.C.A. Cv. 3181 of 2004
Mr. A. Fitzpatrick SC and Mr. R. Harnanan for the applicant
Mr. R. Martineau SC and Mrs. D. Peake for the respondent
Dr. C. Denbow SC and Mr. K. Ramkissoon for the Intervenor
Civil practice and procedure - Construction contract — Amendment — Striking out — Applicant seeking leave to amend statement to include ground of bias — Respondent applying to strike out parts of affidavit on ground of hearsay — Whether too late in proceedings to amend statement — Practice Direction October 2000 — Trend to disallow last minute amendments — Whether striking out application to be allowed — RSC Order 38, rule 3 — Evidence Act, s. 22 — Leave to amend refused — Striking out order made by consent.
There are two applications upon which I have been asked to rule. Leave to amend the Statement
The first is the applicant's notice filed 5 th May, 2005 by which it seeks leave to amend its Statement filed 24 th November, 2004 to add the following ground:
“D. The said decision is tainted with bias in that Dr. Krishna Bahadoorsingh, a member of the Board of the respondent, participated in the making of the decision, notwithstanding that the said Krishna Bahadoorsingh is the major shareholder and a director of Westmooring Ltd. which is at present, and was at the time that the decision was made, engaged in litigation against Emile Elias & Co. Ltd., the majority shareholder of the applicant”.
The application is made in the following context:
- paragraph 18 of the applicant's Statement, as verified by Emile Elias's affidavit of 24th November, 2004, sets out that the applicant was informed that the respondent's Board of Directors had taken a decision to award the contract to the lowest tenderer but that “as far as the applicant is aware, no member of the respondent's Board of Directors who could have participated in the said decision, has any technical expertise in the field of the construction”; 2. at paragraph 5 with his affidavit filed 11th March, 2005 Mr. Winston Agard, on behalf of the respondent, deposes as follows: “The Board of Directors of UDECOTT which comprises the Chairman, Mr. Calder Hart, Dr. Krishna Bahadoorsingh, Mr. Madan Ramnarine, Mr. John Mair, Mr. Vishnu Dhanpaul and Mr. Robert Le Hunte directs the management of the business and affairs of UDECOTT. I am aware that the Chairman and Dr. Bahadoorsingh have considerable expertise in property development and construction”; 3. at paragraph 6 of his affidavit filed 6th April 2005 Emile Elias then deposes: “With respect to paragraph 5 of the second Agard affidavit Dr. Krishna Bahadoorsingh is the majority shareholder and a director of Westmoorings Limited a company engaged in litigation with Emile Elias and Company Limited in H.C.A. Nos. 4717 and 4680 of 1988. Emile Elias & Company Limited is the majority shareholder in the applicant”.
The submission on behalf of the applicant is that this gives rise to a decision which is tainted by a real danger of bias, a real possibility of bias. The applicant relies upon the decision of the Court of Appeal in the Attorney General v. Caribbean Communications Network Ltd. (2001) 62 W.I.R. 405, particularly the reference there (at pages 422 – 423) to, and the decision in, Ex-parte Pinochet(No. 2) [1999] 1 All E.R. 577 at 586.
The first affidavit of Emile Elias (filed 24 th November, 2004), I am told, was drafted very carefully and the applicant was not aware at that time that Dr. Bahadoorsingh “sat in judgment”. It was apparently assumed that he had not done so, hence the allegation of “… no one who could have participated… [having] … any technical expertise …”. Mr. Agard's assertion in his affidavit of 11 th March therefore came to the applicant as a surprise.
It makes little difference, it is submitted, whether there was bias. It is the perception that bias could have existed that really matters. This arises because Dr. Bahadoorsingh is the majority shareholder and a director of Westmoorings Ltd.; Westmoorings Ltd. is in litigation with Emile Elias & Co. Ltd.; and Emile Elias & Co. Ltd. is the majority shareholder of the applicant. In those circumstances it is submitted, there is automatically a real possibility of the respondent's decision-making process being biased or being seen as biased. It raises a very strong case of bias, and there is no dispute as to the facts upon which the allegation of bias is founded.
Further, there is no question of delay, or undue delay, being caused by the amendment being granted. This is because there is no dispute as to the facts which underlie the need for the amendment, and further the respondent is not prejudiced in any way.
It was submitted on behalf of the respondent that the application for leave has been made too late. The Court of Appeal ordered on 12 th January, 2005 that the motion be heard urgently because the project in question was to begin at the end of February, 2005. An injunction preventing the project from proceeding was granted and it continues until such time as the motion is determined, all to the prejudice of the respondent, and doubtlessly the project itself. The respondent will be prejudiced because of this further delay. Instructions from the respondent will be needed and it is possible that further affidavits will have to be filed.
There has been no previous mention of bias being raised and the parties proceeded to trial on that basis. This application introduces a new or entirely different slant to the matter, while there was more than ample opportunity to do so over the two months which have elapsed since Mr. Agard's affidavit was filed and served.
Further, submits Mr. Martineau, paragraph 5 of Mr. Agard's affidavit does not say that Dr. Bahadoorsingh took part in the decision-making process. In answer to the assertion at paragraph 18 of the Statement, it goes no further than to say that he “could have” taken part, if it can be so interpreted at all. There is nothing to show any connection, even indirect, between Dr. Bahadoorsingh qua Westmoorings Ltd. and Dr. Bahadoorsingh qua director of the respondent and the decision-making procees.
I have come to the conclusion that leave to amend should be refused. It is now too late to grant it, given the circumstances of this case.
After the decision of the Court of Appeal on 12 th January, dates for trial during the week of 11 th April, 2005 were agreed on 31st January before Jones, J. At a status hearing on 15 th March, 2005, further directions were agreed before Best, J. This was after Mr. Agard's affidavit was filed and served, but no mention was made of the applicant applying for leave to amend.
On 5 th April before me, the issue of the applicant applying for certain interrogatories was raised for the first time. I gave certain directions in an effort to ensure that this application would be determined as quickly as possible and the trial proceed in April. I expressed then my concern at the delay in beginning the trial. I gave my ruling on the application for interrogatories on 22 nd April, the written submissions of all parties having been filed previously in accordance with the directions given. No mention was made on 22 nd April about an application for leave to amend.
On 26 th April when the motion came on for trial and an application was made for an adjournment by senior counsel for the applicant, I specifically enquired, again, if there were any further interlocutory applications contemplated. I did so because there had been mention previously of a possible application by the applicant for leave to cross-examine. I was told that no such application was going to be made and, quite categorically by all concerned, that there were no further interlocutory applications be made of any nature, although there remained for determination the respondent's application to strike out certain paragraphs of Mr. Elias's affidavits. Notice of this application had been set out in the respondent's written submissions filed on the 18 th April.
There had therefore been more than ample opportunity to mention any intended (or existing, Mr. Fitzpatrick saying that he thought the Notice before me had in fact been filed previously) application for leave to amend. Further, there is not one word of bias, or of any application for leave to amend, mentioned in the full written submissions on behalf of the applicant which were filed as far back as 12 th April, six days after Mr. Agard's affidavit. Those submissions deal with both his affidavit and Mr. Elias's affidavit of 6 th April.
I find it difficult therefore to see how Mr. Fitzpatrick could labour under the misapprehension that the Notice for leave to amend had been filed some time ago.
I accept that a Court should permit all the issues to be ventilated and decided. As against that, however, is the growing concern by the Courts generally at the late stage at which applications of an interlocutory nature are being made. The Practice Direction of October, 2000 might have been directed to – or primarily to – the trial of writ actions, but its philosophy clearly extends to the trial of motions. This has, if I may say so, become the general and well accepted practice by the Bar. Decisions of the Courts over the years reflect an increasing trend towards disallowing last minute amendments. These are matters clearly intended to be completed well before trial date and, indeed, before the date of a Cause List Hearing, unless there is very good, exceptional, or perhaps compelling, reason for allowing them - particularly as late as at trial.
In my view, none of those circumstances are shown to exist here. This is not an issue that reared its head at the last moment. It must have occurred...
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