Ramlal v Frazer and Capital Insurance Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Awai, M. |
| Judgment Date | 30 June 2015 |
| Neutral Citation | TT 2015 HC 213 |
| Docket Number | H.C.A. S 497 of 2005 |
| Court | High Court (Trinidad and Tobago) |
| Date | 30 June 2015 |
High Court
Awai, M.; Awai, J.
H.C.A. S 497 of 2005
H.C.A. S 1907 of 2005
Ms. S. Nanan for the plaintiff
Mr. R. Khan instructed by Mr. R. Pheerangie for the defendant
Civil practice and procedure - Whether the Practice Direction re: Witness Statements in Matters under the Rules of the Supreme Court 1975 was applicable — Whether the plaintiff had to apply for relief from sanction in addition to seeking an extension of time for filing the witness statements and/or summaries — Whether the court should exercise its discretion in favour of extending time for filing of witness statements and/or summaries — Whether the direction of the court for filing witness summaries was a nullity.
Civil practice and procedure - Application for extension of time to file witness statements — Applicability of Practice Direction re Witness Statements — Whether plaintiff had to apply for relief from sanctions — Plaintiff was not required to apply for relief — Whether extension should be granted — Discretion — Avoidance of injustice — Delay was not excessive — No substantial prejudice experienced by defendants as a result of the delay — Finding that there was an acceptable reason given for delay — Direction for witness summaries — Order maintained — Rule 5 of Rules of the Supreme Court.
The plaintiff Ramcharan Ramlal was injured in a motor vehicle accident on March 24, 2001. He commenced proceedings on March 23, 2005 against the defendants, Junior Fraser and Capital Insurance Limited, being owner and insurer respectively, of the vehicle which collided with his own.
The matter was assigned to the learned trial judge before whom a pre-trial review was held on May 23, 3008. The pretrial review was adjourned on several occasions and eventually on April 8, 2009, a consent order was made giving judgment on liability against the defendants with damages to be assessed before a Master.
Before me, the matter was called on several occasions as the parties were trying to settle the quantum of damages amicably.
Finally, on May 27, 2014, I gave directions, inter alia, for the filing of witness statements and/or witness summaries on or before July 31, 2014. Evidential objections were scheduled to be heard on October 28, 2014 and the assessment of damages was fixed for November 10, 2014.
By summons dated December 15, 2014, the plaintiff sought an extension of time for filing witness statements and/or summaries pursuant to Order 3 rule 5 (wrongly stated as Order 5) of the Rules of the Supreme 1975.
A chronology of events leading to this application is set out below.
May 27, 2014
The court gave directions for the filing of witness statements and/or witness summaries on or before July 31, 2014. The court scheduled evidential objections for October 28, 2014, and the assessment of damages was fixed to proceed on November 10, 2014.
October 28, 2014
When the matter came up for hearing evidential objections, the directions for the filing of witness statements and/or summaries had not been complied with. The matter was adjourned to November 10, 2014 on which date it was anticipated that the court would proceed with the assessment of damages after determining any prospective applications re the non-compliance issue.
November 4, 2014
The witness statement of Ramcharan Ramlal and the witness summary of Dr Rasheed Adams were filed and served.
November 7, 2014
A supplemental witness statement of Ramcharan Ramlal, a witness statement of Aneesa Ramlal, a witness summary of Dr Santana and a Hearsay notice were filed and served on behalf of the plaintiff.
The defendants filed a summons to strike out the witness statement of Ramcharan Ramlal and the witness summary of Dr Rasheed Adam.
November 10, 2014
Instead of proceeding with the assessment of damages, directions were given for the defendants’ summons to be dealt with, including the filing of an affidavit in reply of the plaintiff and written submissions by both parties. Decision on this application was reserved to the adjourned date.
November 18, 2014
The defendants filed an amended summons to strike out witness statements and witness summaries.
December 15, 2014
The plaintiff filed the instant summons to extend time for the filing of witness statements and/or summaries.
When the matter next came up for hearing on February 23, 2015, I deferred determination of the defendant's application to strike out the witness statements and summaries pending the outcome of the plaintiff's application for extension of time. Directions were given for the filing of written submissions by both parties in relation to the plaintiff's summons.
The plaintiff's summons was supported by the affidavit of Soraya Nanan filed on December 15, 2014. The following paragraphs of the affidavit are relevant insofar as they purport to explain the reasons for non-compliance with the court's directions and circumstances relating to the filing of the summons:
31. The reason for the plaintiff's non-compliance to file his witness statements and/or witness summaries are based on the following:–
(a) From in or about the 2nd week in July 2014 the plaintiff got very ill with the virus and was physically unable to attend our offices during his recover period of two weeks.
(b) Advocate Attorney at Law fro the plaintiff has requested that an up to date medical report be obtained.
(c) The father of the plaintiff Ramnath Ramlal was the driver of the vehicle and died in the accident. The plaintiff is unemployed and did not have enough money to travel to our offices to prepare his witness statement, to travel to the doctors’ offices to obtain the necessary information to prepare the witness summaries and to pay for the medical report from Dr. David Santana who was the last doctor to examine the plaintiff and
(d) Instructing Attorney-at-Law was out of the country during the month of August 2014 which was during the court vacation.
32. In addition since the new court term opened we have been balancing an extremely heavy case-load and our commitments to our clients as well as directions issued by the Court in other matters.
33. We filed this application promptly because we did not meet the stipulated deadline and have complied with all other Court directions issued to date. I further say that the application was filed in or about 15th December 2014 because of the voluminous pleadings I had to go through in order to set out all the pleadings that were filed in the instant case, directions that were ordered by the Honourable Court and the orders made by the Honourable Court from 2005 to date. I also say that in order to prepare this application pursuant to the Rules of the Supreme Court 1975 I needed to research whether there are implied sanctions with respect to failure to comply with the directions made by the Honourable Court in or about 28th May 2014.
In determining this summons, the following issues arose for consideration:
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i. Whether the Practice Direction dated July 18, 2007 re Witness Statements in Matters under the Rules of the Supreme Court 1975 was applicable;
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ii. Assuming the said Practice Direction was applicable, whether the plaintiff had to apply for relief from sanctions pursuant to Rule 26.6(2) of the Civil Proceedings Rules 1998 in addition to seeking an extension of time for filing the witness statements and/or summaries.
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iii. Whether on the facts of the case, the court should exercise its discretion in favour of extending time for filing the witness statements and/or summaries.
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iv. Whether the direction of the court for filing of witness summaries was a nullity?
The submissions of both parties were premised on the applicability of the Practice Direction dated July 18, 2007 re Witness Statements in Matters under the Rules of the Supreme Court 1975. Nevertheless, I gave consideration to the issue whether the Practice Direction was in fact applicable to a directions hearing preceding an assessment of damages as opposed to a pre-trial review which is expressly referred to in the Practice Direction.
The operative part of the Practice Direction reads as follows:
- This Practice Direction is supplementary to and is to be read together with the “Practice Direction - Trial of Civil Matters” dated August 30, 2005 (“Principal Practice Direction”). 2. Where a Judge presiding in matters governed by the Rules of the Supreme Court 1975 (“RSC 1975”) orders witness statements to be filed or served pursuant to the case management powers under Parts 26, 27 or 39 of the Civil Proceedings Rules 1998 (“CPR 1998”) given to him by the Principal Practice Direction the witness statements so ordered shall comply with and their use shall be governed by the CPR 1998 Part 29 rules 4...
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