Shazmin Maharaj v The North Central Regional Health Authority

• Jurisdiction: Trinidad & Tobago
• Judge: B.A. Lambert Peterson
• Judgment Date: 28 August 2024
• Neutral Citation: TT 2024 HC 191
• Docket Number: Claim No. 2017-04626
• Court: High Court (Trinidad and Tobago)

Between

Shazmin Maharaj (The wife and Administratrix of the Estate of Chandrashekhar Maharaj otherwise known as Chandrashekar Maharaj otherwise known as Chandra Shakar, deceased)

Claimant

and

The North Central Regional Health Authority

1 ^st Defendant

Dr. Ronan Ali

2 ^nd Defendant

Dr. Aneesa Ragbir

3 ^rd Defendant

Dr. Davis King

4 ^th Defendant

Dr. Bruce Bird

5 ^th Defendant

Before the Honourable Mrs. Justice B.A. Lambert Peterson

Claim No. 2017-04626

IN THE HIGH COURT OF JUSTICE

Appearances

Mr. Devesh Maharaj instructed by Ms. Nalini Balwant and Ms. Mellisa Sookoo, Attorneys-at-Law for the Claimant.

Mr. Colvin Blaize and Mr. Farai Hove Masaisai instructed by Ms. Kathy-Ann Joseph, Attorneys-at-Law for the Defendants.

REASONS

INTRODUCTION

1 The matter before the Court arises from a claim brought by the estate of the deceased alleging medical negligence against the Defendants. The Claimant asserts that the Defendants failed and/or refused to exercise the requisite duty of care required of medical practitioners during an angioplasty procedure and in their subsequent treatment of the deceased following the procedure.

2 Before the Court are two Notices of Application filed by the Claimant on 20 May 2024 and 1 July 2024 seeking extensions of time for the filing and exchange of her witness statements.

3 By its Notice of Application dated 20 May 2024 filed pursuant to Parts 26.1(d), 26.7 and 11.13 of the Civil Proceedings Rules, 1998 as amended (hereinafter referred to as “the CPR”), the Claimant sought an order in the following terms:

This Notice of Application was supported by an affidavit of the Claimant's instructing Attorney-at-Law also filed on 20 May 2024.

• a) The Claimant be granted leave to file and exchange witness statements and expert reports to 1 July 2024.

• b) Parties are at liberty to file and serve evidential objections on 15 July 2024.

• c) Parties to file and serve responses to evidential objections on 29 July 2024.

• d) The PTR scheduled for 5 June 2024 at 9:30 a.m. is hereby vacated and rescheduled.

• e) There be no order as to costs.

4 On 24 May 2024, the Defendants filed a Notice of Objection to the grant of the extension of time. The Notice was supported by the affidavit of the Defendants' instructing Attorney-at-Law.

5 By further application dated 1 July 2024, the Claimant sought another order for an extension of time as follows:

That application was supported by the affidavit of Mellisa Sookoo, Attorney-at-law filed on 1 July 2024.

• a) The time for the Claimant to file and serve witness statements be extended to on or before 15 July 2024;

• b) The time for the Claimant to file and serve expert reports be extended to on or before 19 July 2024;

• c) There be no order as to costs;

• d) Such further orders / directions as the Court deems fit.

6 The matter came on for hearing on 2 July 2024, which date was scheduled to be the Pre-Trial Review. Both parties gave brief oral submissions in respect of their respective positions on the Notices of Application.

ISSUES

7 The issues to be determined by the Court on these applications are:

• i. When does the sanction embodied in CPR Part 29.13(1) take effect?

• ii. What is the appropriate application to be filed by a party in breach of a Court Order to file witness statements by a specified date?

• iii. Whether extensions of time ought to be granted to permit the Claimant to file and exchange witness statements?

ORDER

8 At the hearing of 2 July 2024, the Court made the following orders.

IT IS ORDERED that:

IT IS ALSO ORDERED that:

• i. With respect to the Notices of Application of 20 May 2024 and 1 July 2024 for extensions of time to file witness statements, both applications stand dismissed.

• i. The Claim and Statement of Case filed herein on 21 December 2017 stand dismissed.

• ii. The parties to file and exchange submissions in respect of costs and more specifically the value of the claim no later than 16 July 2024.

• iii. The matter stands adjourned into chambers on the issue of costs.

BACKGROUND AND PROCEDURAL HISTORY

9 At the case management conference of 3 May 2021, directions were given for the parties inter alia to file and exchange witness statements by 30 November 2021. An express sanction was imposed namely, that “ The failure to file witness statements on the stipulated date will attract the sanction set out in CPR Part 29. 13.”

10 Following that Court Order, several applications were filed by consent to vary the timetable for the filing and exchange of witness statements to facilitate settlement discussions, namely:

• i. On 4 March 2022, the Claimant's Attorneys-at-Law filed a Notice of Application by Consent seeking an extension of time for the parties to file and exchange witness statements and expert reports on or before 18 April 2022. This extension of time was granted by Order dated 7 March 2022.

• ii. On 21 April 2022, the Defendant's Attorneys-at-Law filed a Notice of Application by Consent seeking an extension of time for the filing and exchange of witness statements to 28 July 2022. This extension of time was granted by Order dated 3 May 2022.

• iii. On 30 June 2022, a Notice of Application by Consent was filed by the Defendants for an extension of time for the filing and exchange of witness statements to 6 September 2022.

• iv. On 5 September 2022, a Notice of Application by Consent was filed by the Defendants for an extension of time for the filing and exchange of witness statements to 4 October 2022.

• v. On 4 October 2022, a Notice of Application by Consent was filed by the Defendants for the time for the filing and exchange of witness statements to be extended to 12 January 2023. By Order of 16 December 2022, the Court granted this extension of time.

• vi. On 11 January 2023, a Notice of Application by Consent was filed by the Defendants for the extension of time for the filing and exchange of witness statements to 20 March 2023.

• vii. On 22 March 2023, the Defendants again filed an application by consent for an extension of time for the filing and exchange of witness statements to 7 April 2023.

• viii. On 12 April 2023, the Defendants filed an application by consent seeking an extension of time for the filing and exchange of witness statements to 25 April 2023.

• ix. On 25 April 2023, the Claimant filed an application by consent seeking an extension of time for the filing and exchange of witness statements to 4 August 2023.

• x. On 4 August 2023, the Claimant filed an application by consent that the time for the filing and exchange of witness statements be extended to 3 October 2023.

• xi. On 3 October 2023, the Defendants filed an application by consent for the time for the filing and exchange of witness to be extended to 12 December 2023. This application was granted by the Court by Order on 5 October 2023.

11 The Defendants, in compliance with the Order of 5 October 2023, filed their witness statements on 12 December 2023. As the Court's Order was for an exchange of witness statements, there was no service of the Defendant's Witness Statements on the Claimant.

12 Following the Order of 5 October 2023, the Claimant sought four further extensions of time, namely:

• i. Notice of Application of 14 February 2024 seeking relief from sanctions and an extension of time for the filing and exchange of witness statements to 5 April 2024. The matter came up for hearing on 6 March 2024 and the extension of time was granted for the filing and exchange of witness statements to 22 April 2024.

• ii. On 22 April 2024, the Claimant sought an extension of time for the filing and exchange of witness statements to 20 May 2024. By Order dated 26 April 2024, this extension of time was granted to 20 May 2024.

• iii. The Claimant then filed its Notices of Applications for extensions of time dated 20 May 2024 and 1 July 2024 which form the subject of the Court's Order of 2 July 2024.

CLAIMANT'S CASE

13 At the hearing of 2 July 2024, the Claimant submitted that an application for relief from sanctions was not necessary as the applications for extensions of time were filed on the date that the witness statements were to have been filed, and were not filed after the date for the filing and exchange of witness statements had passed.

14 The Claimant referred the Court to her reasons set out in the Affidavits in support filed on 20 May 2024 and 1 July 2024. The grounds given for the extension of time was that due to other court related commitments (including a five-day trial from 13 to 17 May 2024 and another trial scheduled on various dates between 1 to 11 July 2024), the Claimant's Attorneys-at-Law were unable to review and complete the witness statements.

DEFENDANTS' CASE

15 The Defendants' position was that since the application for an extension of time dated 20 May 2024 was not determined, the Claimant's application of 1 July 2024 needed to contain an application for relief from sanctions.

16 Further, the Defendants submitted, both orally and by its objection of 24 May 2024, that the Claimant had not satisfied the threshold requirements for the grant of relief from sanctions.

DISCUSSION

When does the sanction embodied in Part 29.13(1) take effect?

17 CPR 29.13(1) provides as follows:

“If a witness statement or witness summary is not served in respect of an intended witness within the time specified by the Court then the witness may not be called by the party unless the Court permits.” (Emphasis added)

18 In this rule, Court is mindful of the last four words– “ unless the Court permits”. The rule also states “ within the time specified by the Court.” As outlined in paragraph 10 above, there were a number of consensual applications for extension of time. The most recent extension granted by the Court was by its Order of 26 April 2024. An extension of time was granted for the filing and exchange of witness statements and expert reports to 20...