The Attorney General of Trinidad and Tobago v Universal Projects Ltd

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Jamadar, J.A.,P. Jamadar, J.A.,Kangaloo, J.A.
• Judgment Date: 26 February 2010
• Neutral Citation: TT 2010 CA 8
• Docket Number: Civil Appeal No. 104 of 109
• Date: 26 February 2010

Court of Appeal

Archie, C.J.; Kangaloo, J.A.; Jamadar, J.A.

Civil Appeal No. 104 of 109

The Attorney General of Trinidad and Tobago

and

Universal Projects Limited

Appearances:

Mr. M. Daly S.C.; Mr. K. Garcia and Mrs. D. Jean-Baptiste-Samuel for the appellant.

Mr. N. Bisnath and Mrs. L. Mendonca for the respondent.

Civil practice and procedure — Contract for road works — Monies due under contract — Failure to file defence — Default judgment entered against State — Application to set aside — Relief from sanctions — Civil Procedure Rules part 26.7 — Conditions to be satisfied — State not satisfying requirements — Overriding objective of Civil Procedure Rules to deal with cases justly — No justification for court accommodating State outside of Civil Procedure Rules — Appeal dismissed.

I have read the judgment of P. Jamadar, J.A. and I agree that the appeal be dismissed with costs to be assessed.

I. Archie

Chief Justice

I have also read the judgment of P. Jamadar, J.A. and I also agree that the appeal be dismissed with costs to be assessed.

W. N. Kangaloo

Justice of Appeal

Introduction

P. Jamadar, J.A.

1 This appeal is against the order of Gobin, J., made on the 22nd April, 2009, dismissing the appellant's application filed on the 1st April, 2009 seeking, inter alia, to set aside a default judgment entered against the State on the 16th March, 2009.

2 The general circumstances leading up to the filing of this action are relevant to the outcome of this appeal. These were as follows:

• (a) The claim arose out of alleged difficulties experienced by the respondent in progressing a contract (made between the parties and dated 19th May, 2005 – the Contract) to do certain improvements to the Churchill Roosevelt Highway in Trinidad. The respondent formed the view that it was entitled to both an extension of time to complete the works and to additional payments.

• (b) The Contract was subject to the FIDIC Conditions, and on the 13th April, 2007 the respondent made a claim under Sub-Clause 20.1 of the Conditions.

• (c) On the 4th October, 2007 the appellant purported to terminate the Contract, which termination was disputed by the respondent.

• (d) In June 2008 the Engineer (under the FIDIC Conditions) invited the parties to meetings to discuss the respondent's claim.

• (e) On the 22nd September, 2008 the Engineer submitted to the parties his Determination pursuant to Sub-Clause 3.5 of the FIDIC Conditions. By Payment Certificate dated the 6th October, 2008 the Engineer indicated the appellant's liability to the respondent under the contract in the sum of TT$31,246,826.95.

• (f) By letters of the 10th October, 2008 and the 30th October, 2008 the respondent demanded payment of the said sum of TT$31,246,826.95, the latter letter requesting that an indication of intent to pay be given by the 15th November, 2008. No responses were received by the respondent to these letters.

• (g) On the 12th November, 2008 attorneys for the respondent wrote to the Permanent Secretary of the Ministry of Works and Transport (and to the Minister of Works and Transport and also to the Attorney General) requesting payment of the stated sum, making reference to the unanswered letters of the 10th and 30th October, 2008, and demanding payment on or before the 10th December, 2008, failing which legal action was threatened. This letter expressly stated that it was “intended to satisfy the pre-action protocol requirement under the CPR”. (The Civil Proceeding Rules, 1998 ( CPR, 1998).) No response to this letter was received by the respondent or its attorneys.

• (h) On the 16th December, 2008 the respondent filed this action by way of Claim Form and Statement of Case under the CPR, 1998. That claim was for the sum of TT$31,246,826.95 as money due pursuant to the Engineer's Certificate dated the 6th October, 2008 and under the Contract, together with interest thereon at 12% per annum from the 6th October, 2008 until payment (particulars of which were set out).

• (i) Service of the Claim Form and Statement of Case was effected on the appellant on the 16th December, 2008. (An affidavit of service was duly filed on the 16th January, 2009.) In fact, the documents were served on Ms. Karlene Seenath, an attorney attached to the office of the Solicitor General of Trinidad and Tobago.

• (j) The pre-action protocol letter was received by the appellant and a file was opened in the Chief State Solicitor's Department “immediately the letter was received”. (Paragraph 4, affidavit of Mrs. D. Jean-Baptiste-Samuel, filed 23rd March, 2009) That file was then assigned to an instructing attorney, Mrs. D. Jean-Baptiste-Samuel, in the said department.

• (k) Subsequently, the instructing attorney for the appellant made several calls to the Legal Department of the Ministry of Works and wrote two letters, dated the 20th November, 2008 and 25th November, 2008, requesting instructions in order to respond to the preaction protocol letter. Instructions were eventually received from the Ministry of Works and Transport on the 8th December, 2008. (Paragraphs 4 and 5, affidavit of Mrs. D. Jean-Baptiste-Samuel, filed 23rd March, 2009) This was two days before the deadline fixed in the pre-action protocol letter. These instructions were then forwarded by the instructing attorney to two advocate attorneys attached to the Solicitor General's Department for their “settled response to the pre-action protocol letter”. (Paragraph 6, affidavit of Mrs. D. Jean-Baptiste-Samuel, filed 23rd March, 2009.)

3 What then transpired within the State's legal departments and among the appellant's legal representatives was the first and beginning of a litany of defaults with respect to the requirements of the CPR, 1998, that eventually led to the default judgment and ultimately to this appeal.

The Law and Facts Leading up to the Default Judgment

4 On the 15th November, 2005 the Practice Direction with respect to pre-action protocols was issued. Of general relevance to this action, it being a claim for a specified sum of money, are the provisions at Protocols 1.4, 2.1, 3.2 and 4.4 (which must be read subject to the provisions in Appendix A to the Practice Direction which deals with claims for a specified sum of money). Of particular relevance is Protocol 1.4 of Appendix A, which provides that in a claim for a specified sum of money: “The defendant should Reply within 14 days of the date of receipt of the letter indicating whether he admits the claim …”. Further, Protocol 1.5 of Appendix A also provides that: “If the claim is not admitted the defendant should give detailed reasons why …”.

5 In this case the pre-action protocol letter was certainly received by the 14th November, 2008 (Paragraph 4, affidavit of Mrs. D. Jean-Baptiste-Samuel, filed 23rd March, 2009.) However, up to the 8th December, 2008 no Reply had been issued.

6 Among the objectives of the pre-action protocols is the aim “to support the efficient management of proceedings under the CPR …”. (Pre-action Protocol 1.4(3).) Consistent with this objective, “the Court may take into account the failure of any party to comply with a pre-action protocol when deciding whether or not to make an order under Part 26 …”. (Pre-action Protocol 2.1.) Non-compliance with a pre-action protocol includes the failure of a defendant to “make a preliminary response to the letter of claim within the time fixed for that purpose …” and “to make a full response within the time fixed for that purpose …”. (Pre-action Protocol 3.2 (a) and (b).)

7 In this case the appellant did not give either a preliminary or full response to the preaction protocol within the time limited for so doing or at all. Instead, the instructing attorney waited for some ten days after forwarding the documents to the State advocates for a “settled response” before following up with them. (Paragraph 7, affidavit of Mrs. D. Jean-Baptiste-Samuel, filed 23rd March, 2009.) That implies that nothing was done by the State advocates until at least the 18th December, 2008, yet there is absolutely no explanation given as to why no response to the pre-action protocol letter was sent by instructing attorney – even if only a preliminary response acknowledging receipt of the pre-action protocol letter and requesting more time to Reply and explaining why. Rather, the appellant's attorneys chose to disregard both the pre-action protocol letter and the requirements relating to it in the CPR, 1998 and to deal with this matter as they determined best. This conduct is therefore conduct that may be considered in dealing with an application for making an order under Part 26, CPR, 1998, and in particular Part 26.7 – Relief from Sanctions.

Filing of the Action

8 Not surprisingly, having heard nothing from the State or its attorneys, the respondent filed this action on the 16th December, 2008. Service was effected on the 16th December, 2008 on an attorney at law attached to the office of the Solicitor General. (Paragraph 6, Exhibit LM 3, affidavit of Mrs. Lydia Mendonca, filed on 2nd April, 2009.) The appellant's explanation of what happened is somewhat at odds with that of the respondent's process server. In the affidavit of Mrs. D. Jean-Baptiste-Samuel, (Paragraph 12, filed on the 23rd March, 2009.) she deposed that “when the action was served … it was taken into custody by inexperienced legal staff … who then proceeded to store the papers in a vacant office …”. The truth as to on whom the papers were served is not of great moment, since there is no dispute that they were served on and received by a “legal staff” member of the department. What happened next was a complete calamity.

9 “the papers were not discovered until some six weeks later, sometime around January 30, 2009”. In these circumstances Mrs. D. Jean- Baptiste-Samuel acknowledged: “By that time, the forty two days permitted under the CPR for the filing of the defendant's...