Well Services Petroleum Company Ltd v Darlington Francois

• Jurisdiction: Trinidad & Tobago
• Judge: Vasheist Kokaram, J.A.
• Judgment Date: 17 August 2020
• Neutral Citation: TT 2020 CA 43
• Date: 17 August 2020
• Docket Number: Civ. App. No. S035 of 2020
• Court: Court of Appeal (Trinidad and Tobago)

IN THE COURT OF APPEAL

(CHAMBER COURT)

Before

THE HONOURABLE JUSTICE Vasheist Kokaram, J.A.

Civ. App. No. S035 of 2020

Claim No. CV2017-00103

Between

Well Services Petroleum Company Limited

Intended Appellant/Defendant

and

Darlington Francois

Intended Respondent/Claimant

Appearances:

Mr. Timothy Alphonso instructed by Ms. Symone Gordon Attorneys at Law for the Appellant.

Mr. Edwin K. Roopnarine instructed by Mr. Shawn A. Roopnarine, Attorneys at Law for the Respondent.

1 We are in the throes of a pandemic which this world has not experienced for over a century. The Covid-19 pandemic has globally affected the delivery of public services no less that of legal services and the administration of justice. The crowds of attorneys and litigants at our Courts have disappeared. There are no lines of persons waiting to file documents at our Registries. Many judges and attorneys alike are working from home. But there is a “bee hive” of activity in the “virtual world” with online conferences, teleconferences, e-filings, online mediations, e-judicial settlement conferences and virtual court hearings. Richard Susskind's “Tomorrow's Lawyers” 1 are here today. Civil litigation services have been adapting to an online environment, a new normal which is likely to be with us for months to come and may well permanently change the way civil justice is delivered. While it is not business as usual, the delivery of civil justice cannot afford to grind to a halt and litigants, attorneys and judicial officers alike must adapt to continue to give effect to the overriding objective of the CPR 2, and the timely compliance of orders, directions and rules. This judgment deals with the impact the novel Covid-19 pandemic can have on the approach of the Court to applications for extensions of time to comply with deadlines.

2 The Intended Appellant, Well Services Petroleum Company Limited (Well Services) sought an extension of time to file its Notice of Appeal 3 and relief from sanctions for failing to file its appeal some 7 months after the deadline had elapsed as prescribed by the CPR 4. In Vijay Samaroo v Ishaan Ishmael Civil Appeal No. P381 of 2019, I explained that the “relief from sanctions regime” is not applicable to these applications and the application was considered applying the principles

relative to extensions of time explained in Vijay and Mala Ragoonanan v The Attorney General of Trinidad and Tobago Civil Appeal No. P044 of 2020. 5

3 The main reason for the delay for filing the Notice of Appeal was that there was a delay in receiving the Court's email of its perfected order 6 and its subsequent clarification or amendment of the order was received during the Covid-19 pandemic. During that time the Intended Appellant's law firm and Well Services had experienced great difficulty and disruptions as a result of the pandemic and “accordingly, the immediate need for changes to our internal processes prevented us from acting sooner.” 7

4 Upon a consideration of all the circumstances, I was not convinced that Well Services had acted promptly or had a good reason for failing to file its appeal within time and failed to provide any material before the Court as it relates to the merits of its proposed appeal. Taking into account all the factors of Rule 26.7 CPR together with the prejudice to the parties and the merits of the appeal, a dismissal of the application was an appropriate exercise of the Court's discretion to give effect to the overriding objective.

Brief Background

5 The decision which is the subject of the proposed appeal was an assessment of damages in a personal injury claim brought by the Intended Respondent, Darlington Francois against Well Services. On 12 ^th November 2019 after two days of hearing 8 the Master delivered an oral decision assessing damages for, inter alia,

loss of earnings and loss of future earnings (“the November order”). Pursuant to Rule 64.5 CPR the time for filing the appeal would have elapsed 42 days later on 24 ^th December 2019

6 The Master in delivering her oral decision indicated that she would email the parties her final assessed figures for the awards of pre-trial loss of earnings and loss of future earnings. At that time, the parties were fully aware of the nature of the awards that were being made by the Court. Each item of damages was identified together with the evidence that was accepted, the method adopted in calculating the damages to be awarded and the relevant rates of interest. 9

7 I accept that based on the oral reasons and decision, Counsel was able “to identify for the Claimant the sum awarded for general damages, what the Master awarded as his monthly loss of earnings and the period that would be included and what was payable as loss of future earnings and the amount of other damages awarded.” 10 From this, both attorneys were in a position to advise their respective clients on any viable grounds of appeal as the decision on the awards was clear and all that was outstanding was an arithmetic exercise to compute the figures. The Intended Appellant/Claimant, Mr. Francois was advised by his attorneys that the Intended Respondent/Defendant, Well Services may file a Notice of Appeal against the Master's order dated 12 ^th November 2019. Mr. Francois was also advised that both he and Well Services equally had 42 days in which to file an

Appeal and any decision to Appeal required urgent attention. 11

8 The ensuing correspondence from the Intended Respondent's attorney demonstrates that the calculation for the awards of pre-trial and future loss was made clear to the parties even though for those awards a final figure had not been tabulated. Notwithstanding a clear understanding of the awards being made by the Master and her reasoning when the decision was delivered in November 2019, no step was taken by Well Services to file any Notice of Appeal nor was there any instruction or advice given to do so within 42 days from the delivery of her decision.

9 The timeline of events that followed briefly can be set out as follows:

• • Well Services eventually received an email with the November order on 26 ^th March 2020 12. It had previously been sent by the Court on 6 ^th February 2020 to an incorrect email address for Well Services.

• • Well Services reviewed the November order and on 8 ^th April 2020 it indicated to the Court that it had no objection to the Court reviewing and clarifying the order. It is not made clear by Well Services what aspect of this order needed to be clarified or reviewed. The actual request to review and clarify the order was not made by Well Services but by the Intended Respondent.

• • An email from the Master's JSO dated 25 ^th March 2020 was issued requesting the parties forward their calculations for pre-trial loss. Well Services only learnt of this email on 20 ^th April 2020 when it was referenced by the Intended Respondent's attorneys in a letter enclosed in an email to

  the Court forwarding their calculations.

• • Well Services sent two emails to the Court's JSO on 21 ^st April 2020 and 29 ^th April 2020 requesting that the email of 25 ^th March 2020 be forwarded to them but did not receive a response.

• • On 1 ^st May, 2020, the Intended Respondent's attorney sent them a copy of the JSO's email of 25 ^th March 2020.

• • The Court issued an order dated 11 ^th May 2020 (the May order) varying its November order. Well Services claims it never received an amendment of the order directly from the Court. Its attorneys received correspondence on 9 ^th July 2020 from the Intended Respondent's attorneys which annexed the amended order dated 11 ^th May 2020. It was only upon receipt of the amended order and review of same that Well Services claims that it was able to ascertain its dissatisfaction of the order and consequently instructed its attorneys to appeal both orders of the 12 ^th November 2019 and 11 ^th May 2020 respectively.

• • During the period when Well Services received the November order on 26 ^th March 2020 and when the parties were in communication with the Court in relation to amending the order, it is deposed by Well Services that it and its attorneys' offices experienced great difficulty and disruptions as a result of the Covid-19 Pandemic. This prevented Well Services from giving instructions in the usual and prompt manner.

10 In the affidavit of Shanta A.K Balgobin in response, it was highlighted that the Intended Respondent would be prejudiced if Well Service's application is granted since he has been seeking judgment for the past 3 years and desires to receive the fruits of his judgment and to put to rest the litigation that has burdened his life without any further delay.

11 There was no draft Notice of Appeal annexed to the application nor any indication in the application of the proposed grounds of appeal. For the first time at the hearing, Counsel for Well Services submitted that the complaint against the Master's decision was that there was no basis for the Master to have awarded any sum for pre-trial loss or loss of future earnings at all. This ultimately knocked the “wind from the sails” of Well Services as it was therefore painfully obvious that Well Services was aware from the date of the delivery of the decision in November 2019 that the Master had decided to make these awards and indicated the basis for doing so. An examination of the merits will factor in the context of the applicable principles for extending the time for filing appeals. An important context, however, is the nature of the order made by the Master.

12 There are a number of features of the orders which is subject to the proposed appeal which must be noted. First, at the hearing of the application it was accepted by the parties that the assessment was made on 12 ^th November 2019. This was made very clear on the face of the November order which is dated 12 ^th November 2019. While the November order was not...