Zaid Mohammed v Amalgamated Security Services Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | V. Kokaram J.A. |
| Judgment Date | 03 February 2023 |
| Neutral Citation | TT 2023 CA 5 |
| Docket Number | Civil Appeal No. S119 of 2022 |
| Court | Court of Appeal (Trinidad and Tobago) |
V. Kokaram, J.A.
M. Holdip J.A.
Civil Appeal No. S119 of 2022
Claim No. CV2019-04233
IN THE COURT OF APPEAL
Mr. Shawn A. Roopnarine instructed by Mr. Ravi Pheerangee for the Appellant.
Mr. Ravindra Nanga instructed by Ms. Alana Bissessar for the Second Respondent.
Delivered by V. Kokaram J.A.
On 21 st November 2022, I dismissed the Appellant's appeal challenging the trial judge's decision to strike out his Amended Claim and Statement of Case. I have now reduced in writing my reasons for so doing.
This procedural appeal concerns one of two procedural hurdles confronting the Appellant, Zaid Mohammed, in the pursuit of his claim for damages for personal injuries he sustained as a security guard on the compound of Vemco Limited (“Vemco”). That hurdle is whether Mr. Mohammed can amend or change his Statement of Case to add Vemco as a Defendant to his claim without the court's permission before the first Case Management Conference (“CMC”) pursuant to rules 19.2(2) and 20.1(1) of the Civil Proceeding Rules 1998 (“CPR”).
After commencing his claim against his employer, Amalgamated Security Services Limited (“Amalgamated”), Mr. Mohammed sought to amend or change his Statement of Case without the court's permission pursuant to rule 20.1(1) CPR (and later relied upon rule 19.2(2) CPR) by adding Vemco as a party in his claim for damages for negligence. Rule 19.2(2) CPR permits a party to be added to a claim without the court's permission and rule 20.1(1) CPR permits a party to change the Statement of Case also without the court's permission. Both rules permit the addition of the party and the change to the Statement of Case before the first CMC.
This amendment was however made in the face of rule 20.1(4) CPR which, notwithstanding rule 20.1(1) CPR, prescribes that a statement of case may not be changed without the Court's permission if the change is one to which rule 19.2 CPR applies. The amendment was also made outside of the limitation period.
Vemco applied to strike out the claim on the basis that no permission was obtained before the changes were made and that the claim was made outside of the limitation period. Mr. Mohammed applied to disapply the limitation period pursuant to section 9 of the Limitation of Certain Actions Act Chap 7:09. The case management judge in the court below dismissed the claim against Vemco on the basis that the court's permission was required before these changes could have been made to his Statement of Case. The trial judge did not consider the second procedural hurdle as to whether the court should disapply the limitation period and extend time for Mr. Mohammed to bring his action against Vemco.
As explained in this judgment, in my view, if the addition of a party can be accomplished without a change to the Statement of Case then rule 19.2(2) CPR provides the gateway to effect such a change before the first CMC without the court's permission. Where however a material change to the Statement of Case is required, as in this case, the addition of a party to advance an independent cause of action against that party outside of the limitation period, the court's permission must first be obtained pursuant to rule 20.1(4) CPR.
While it would appear to me that rule 19.2(2) CPR may have been intended to capture an addition to parties that will not require a material change to the Statement of Case (See Moon v Atherton [1972] 2 Q.B. 435), that will have to be decided on a case by case basis. What is important is that the changes in this case are material and substantial and will require the court's permission to be sought and obtained pursuant to rule 20.1 (4) CPR.
Some aspects of the procedural history are important to understand the context of the applications before the trial judge. On 23 rd October 2019, Mr. Mohammed filed his claim against Amalgamated for damages suffered by him on 25 th October 2015 at Vemco's compound during the course of his employment. After Amalgamated filed its defence, the first CMC was listed for hearing on 23 rd September 2020. It was rescheduled to 5 th February 2021 without the trial judge engaging in any case management activity to facilitate the parties' discussions. The first CMC had therefore not yet begun. 1
Mr. Mohammed subsequently, before the hearing of the rescheduled CMC, filed his amended Claim Form and Statement of Case without the court's permission on 4 th February 2021 to add Vemco as a second defendant alleging negligence against it as the occupier of the premises. He alleged negligence on Vemco's part in failing to provide for his safety in beach of its common law duty of care.
Vemco filed its application for summary judgment against Mr. Mohammed or alternatively that the amended claim against them be struck out for Mr. Mohammed's failure to comply with rule 20.1(4) CPR. Vemco also contended that the limitation period for initiating proceedings against it expired since four years had lapsed from the accrual of the cause of action.
Mr. Mohammed in response filed his application seeking an extension of time to institute proceedings against Vemco. He deliberately choose not to file an application seeking the court's permission to add Vemco as a party to the action.
The trial judge in a brief ruling dismissed the amended Statement of Case as against Vemco on the basis that the Appellant required the court's permission to file the amended Statement of Case.
The Appellant on this appeal must demonstrate that the trial judge was plainly wrong in either her interpretation of the rule or in her exercise of her discretion. Usually it is not for this court to substitute its discretion for that of the trial judge in matters of case management. In Nyree Alfonso v Port Authority of Trinidad and Tobago and ors Civil App. No P030 of 2020 it was noted:
“53. The Court of Appeal is always loathe to interfere with the trial judge's discretion in case management. The Court of Appeal will only intervene if it is satisfied that the trial judge's use of that discretion was so outlandish that no reasonable judge would have exercised the discretion in that way. That requirement is not evident in this case. In Prince Abdulaziz, the Supreme Court opined that,
It would be inappropriate for an appellate court to reverse or otherwise interfere with a case management decision unless it was plainly wrong in the sense of being outside the generous ambit where reasonable decision-makers might disagree.”
In Vesta Dillon v RBC Financial (Caribbean) Limited and RBC Royal Bank (Trinidad and Tobago) Limited Civil Appeal No. P213 of 2021 2it was also observed that “the case management judge should be afforded some latitude or a margin of appreciation in the exercise of its case management powers and the Court of Appeal will only interfere if the judge was plainly wrong. See The Attorney General of Trinidad and Tobago v Miguel Regis Civil Appeal No.79 of 2011.”
However at the hearing of this appeal no reasons were provided by the trial judge. This court is therefore entitled to look at the matter afresh and exercise its own discretion. See Alana Marisa Mohan v Prestige Holdings Limited Civil Appeal No. P-364 of 2017.
On this appeal the Appellant contends that (a) from a conjoint reading of rules 19.2(2) and 20.1(1) CPR there is no need for the Claimant/Appellant to obtain the court's permission to add a party when it does so before the first CMC and (b) in any event, the court should have considered other alternatives before deploying the draconian measure of striking out the claim. The Respondent points out that a proper interpretation of the rules 20.1(4) and 19.2(2) CPR demonstrates that permission was required and there was no option for the trial judge but to dismiss the application. The Respondent also submitted that rule 19.2(2) CPR may allow a party to amend without permission if the amendment to the parties is not a material change.
Rule 19.2 of the CPR provides:
“19.2 (1) This rule applies where a party is to be added or substituted.
(2) A party may add a new party to proceedings without permission at any
time before a case management conference.(3) The court may add a new party to proceedings if—
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue.
(4) The court may order any person to cease to be a party if it considers that it is not desirable for that person to be a party to the proceedings.
(5) The court may order a new party to be substituted for an existing one if—
(a) the existing party's interest or liability has passed to the new party; and
(b) the court can resolve the matters in dispute more effectively by substituting the new party for the existing party.
(6) The court may add or substitute a party at a case management conference.
(7) The court may not add a party after a case management conference on the application of an existing party unless that party can satisfy the court that the addition is necessary because of some change in circumstances which became known after the case management conference.”
Rules 20.1(1) and 20.1(4) of the CPR states:
“20.1 (1) A statement of case may be changed at any time prior to a case management conference without the court's permission.
…………………………
20.1(4) A statement of case may not be changed without permission under this rule if the change...
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