REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE Claim No. CV2015-00495

BETWEEN

SUSAN BERNADETTE MARRISON As Administrator Ad Litem of the Estate of Christopher Gerald Devereux, Deceased

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant

BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER Appearances: Mr. Kirk Bengochea, attorney-at-law for the Claimant Mr. Seunath Jairam S.C., leading Ms. Antoinette Alleyne, attorneys-at-law for the Defendant

REASONS

Introduction

1. On June 14, 2018, I delivered a viva voce ruling, refusing the Defendant’s application for

relief from sanctions.1 I then entered judgment in default of defence in favour of the

Claimant.

2. My reasons for so doing are set out below.

1 Application for relief from sanctions filed on November, 2016.

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Facts

3. On February 13, 2015, the Claimant Susan Bernadette Marrison, instituted these

proceedings, as the Administrator [sic] ad litem of the estate of the late Christopher Gerald

Deveraux2.

4. The Defendant entered an appearance on August 5, 2015. Thereafter, the Defendant

sought numerous extensions of time for the filing of a Defence. The first application was

dated August 6, 2016. This application was accompanied by a request for further and better

particulars also filed on August 6, 2014. This application was heard on November 5, 2016.

5. The second application for an extension of time was sought at the hearing on November 5,

2016. On this occasion I extended time for the filing of the defence to January 7, 2016.

6. The last extension of time was granted on the October 3, 2016. On this day, I dismissed the

Defendant’s application for security for costs and granted an extension of time until the

November 3, 2016.

2 The relief sought included: “a. Damages for breach of contract inclusive of Annual Salary 27,932.00;

Displacement Allowance of 3,000.00; Job Risk Allowance 1,500.00 from; Meal Allowance 35.00 per day; and Annual United Kingdom Travel Allowance of 6,000.00, each to calculated from the date of dismissal to two years from the commencement of the Claimant’s contract with the Government of Trinidad and Tobago. b. Interest pursuant to section 25 of the Supreme Court of Judicature Act, Chapter 4:02 of the Laws of Trinidad and Tobago, at such rate and at such period as the Honourable Court direct. c. Interest at the rate of 12% per annum on any sum awarded from the date of judgment to the date of satisfaction of the judgment debt pursuant to Section 25A of the Supreme Court of Judicature Act, Chapter 4:02 d. Such further and/or other relief as the Court sees fit e. Costs

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7. On October 03, 2016, I also made an “unless order”, guarding the extension of time for

filing the defence. The terms of “unless order” are set out below:

“Time is extended for the filing and serving of a defence on behalf of the

Defendant on or before November 3, 2016.

Unless there is compliance with the extended deadline the defendant is

[sic] precluded from filing a defence”

8. The Defence was duly filed on November 03, 2016. The Defendant failed however, to serve

the Defence on November 03, as directed. The Defence was served on the following day.

Accordingly, the Defendant had failed to comply with the extended deadline, thus

activating the sanction, which precluded the filing of a defence.

9. On November 10, 2016, the Claimant filed her Notice of Application seeking judgment in

default of defence. The Claimant’s application for judgment in default of defence was

supported by the affidavit of Stephenie Sobrian3.

10. In response, on the following day, November 11, 2016, the Defendant filed a Notice of

Application seeking relief from sanctions as well as extension of time to serve the Defence.

11. The Defendants Notice of Application was supported by the affidavit of Sean Julien,

Attorney-at-Law4. There was no opposing affidavit.

12. Mr. Julien, at paragraph 3 of his affidavit, alluded to the order, which I had made on the

October 3, 2016. He then recounted the events which led to the filing of the Defence on

3 The affidavit of Stephenie Sobrian was filed November 10, 2016. 4 Affidavit of Sean Julien filed on November 11, 2016

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November 3, 2016 and to the service of the Defence on the following day. According to Mr.

Julien, following the order of November 03, 2016, learned Senior Counsel and junior

Attorneys-at-Law for the Defendant, were engaged in considering whether they ought to

lodge an appeal against the Court’s refusal of their application for security for costs.

13. Thereafter, on October 21, 2010, Ms. Antoinette Alleyne, Junior Counsel for the Defendant

submitted a draft defence to Senior Counsel, Mr. Jairam. In so doing, Ms. Alleyne indicated

that she was still researching one as part of the defence.

14. At paragraph 6 of his affidavit, Mr. Julien stated that final modifications were made to the

defence on November 3, 2016. The defence was forwarded to the clerical Court Schedule

section of the office of the Attorney General for the purpose of effecting filing and service.

It is noted that according to the evidence of Mr. Julien, the defence was finalised on

November 3, 2016, the deadline for filing and service. No indication was given as to the

time at which the defence was forwarded to the Court Schedule section.

15. On the November 3, 2016, the staff of the Court Schedule Section was depleted, leaving

only one Clerk, Ms. Leila Noel to perform the task of filing and service for all Attorneys-at-

Law in the department.

16. Ms. Noel spent the entire day filing at both High Court and Court of Appeal Registries and

left the Hall of Justice at 4:00pm. This meant that she was unable to serve any documents

including the defence in these proceedings. Accordingly, Ms. Noel served the defence at

8:41 am on the following morning, that is to say November 4, 2016.

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17. It was the evidence of instructing Attorney-at-Law for the Claimant that she waited, in vain,

for service of the Defence on the November 3, 2016, but that they received neither the

defence nor any communication from the Attorney-at-Law for the Defendant. 5

18. On November 10, 2016, the Claimant filed a Notice of Application seeking the Court’s

permission to apply for judgment in default of defence against the Defendant. It was only

upon receiving the Claimant’s application for permission to enter judgement in default of

defence, that the Defendant realised that there was a discrepancy with the date of service

of the defence.6 On the following day, the Defendant filed the Notice of Application for

relief from sanctions and for an order extending time for the service of defence.

Discussion

19. It was in the foregoing factual context that I considered two applications which arose for

my determination: an application for permission to seek judgment in default of defence7,

followed in time by an application for relief from sanctions8.

20. It was common ground that, when faced with such applications, a Court should first

consider and determine the application for relief from sanctions. See Roland James v AG9.

If the application for relief from sanctions is successful, application for judgement in default

would then be of no consequence.

5 See paragraph 6 of the affidavit by Stephenie Sobrian on November, 2016 6 See paragraph 10 of the affidavit of Sean Julien 7 Notice of Application filed on the November 10, 2016. 8 Notice of Application filed on the November 11, 2016 9 Roland James v AG Civ App 44 of 2014

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21. An application for relief from sanctions may be made pursuant to Part 26.7 CPR. Part

26.7(1) provides that the applicant must show that they acted promptly in seeking relief

from sanctions10. Part 26.7(3) provides as follows:

“(3) The court may grant relief only if it is satisfied that—

(a) the failure to comply was not intentional;

(b) there is a good explanation for the breach; and

(c) the party in default has generally complied with all other relevant

rules, practice directions, orders and directions.”

22. In the case Rawti Roopnarine v. Harripersad Kissoo11, the Court of Appeal considering the

effect of Part 26.7(3), held that this rule established threshold requirements. The court

must be satisfied that the applicant has fulfilled the threshold requirements. Only when the

Court is satisfied that there has been compliance with the threshold requirements, would

the Court proceed to consider the discretionary factors at Part 26. 7(4) . Justice of Appeal

Mendonça stated:

“Rule 26.7 (3) establishes a threshold test. In other words the three (3) conditions

stipulated in that rule must all be satisfied before the court may grant relief. If any

of the conditions are not satisfied the court cannot grant relief”12

10 Rule 26.7(1) “26.7 (1) An application for relief from any sanction imposed for a failure to comply with any Rule Court order or direction must be made promptly. 11 Rawti Roopnarine v. Harripersad Kissoo Civ. App No. 52/12 12Rawti Roopnarine v. Harripersad Kissoo Civ. App No. 52/12 at paragraph 15 of the judgment

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I therefore proceeded to consider the issue of promptitude, as well as each of the threshold

requirements.

23. In Rawti Roopnarine13, the Court of Appeal held that promptitude depended on the

circumstances of the case.

24. In these proceedings learned Attorneys-at-Law for the Defendant only became aware of

the breach on November 10, 2016, when they received the claimant’s application for

permission to enter judgment in default of defence. Having become aware of the breach

on the November, 2016, they acted speedily to apply for relief from sanctions and filed

their application on the November 11, 2016.

25. I considered whether ignorance of the breach was a factor to which the Court should have

regard in deciding the issue of promptitude. This issue was considered in Rawti Roopnarine

supra by Mendonça JA who had this to say:

“24. I would not say, as the Judge did, that knowledge of the breach is not relevant

to the question of promptness under rule 26.7 (1). As I have said above, whether

an application is made promptly depends on the facts of each case. The knowledge

that there was a breach and hence the need for an application for relief must be a

relevant factor. The weight to be attributed to it would depend on the explanation

as to the time the applicant became aware of the breach.14”

26. In this application, Attorney-at-Law for the Defendant acted immediately upon discovery

the breach and filed their application following day. It was my view that taking into account

13 Rawti Roopnarine v. Harripersad Kissoo Civ. App No. 52/12 14 Rawti Roopnarine v. Harripersad Kissoo Civ. App. No. 52 of 2012 at paragraph 24

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the time at which the Defendant became aware of the breach, attorneys-at-law acted

promptly to seek relief from sanctions.

27. I moved to consider the requirement at Part 26.7 (3) (a), and the factor of intentionality.

There was no suggestion that the delayed service was intentional. It was clear that delayed

service was caused by the late preparation of the defence and an over burden on the

administrative staff at the office of the Attorney General on the day in question.

Accordingly, the Defendant satisfied the stipulation at Part 26.7(a).

28. I turned to consider whether there was good explanation for the Defendant’s breach of the

order.

Good Explanation

29. Part 26.7(b) requires that the applicant for relief from sanctions provide a good explanation

for the breach. The requirement of a good explanation was considered in Rawti

Roopnarine supra. Justice of Appeal Mendonca, referred to the Privy Council decision in

A.G. v. Universal Projects Ltd.15 and had this to say:

“32. In the AG v Universal Projects Limited [2011] UKPC 37, the Privy Council

rejected a submission that a good explanation is one which properly explained how

the breach came about, but which may involve an element of fault, such as

inefficiency or error in good faith. The Privy Council in its judgment stated (at para.

23):

15 [2011] 1 UKPC 37

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“The Board cannot accept these submissions. First, if the explanation for

the breach, i.e. the failure to serve a defence by March 13th, connotes real

or substantial fault on the part of the defendant, then it does not have a

“good” explanation for the breach. To describe a good explanation as one

which “properly” explains how the breach came about simply begs the

question of what is a “proper” explanation. Oversight may be excusable in

certain circumstances. But it is difficult to see how inexcusable oversight

can ever amount to a good explanation. Similarly if the explanation for the

breach is administrative inefficiency.”16

30. Justice of Appeal Mendonça, explained the rule in this way:

“An explanation therefore that connotes real or substantial fault on the part of the

person seeking relief cannot amount to a good explanation for the breach. On the

other hand a good explanation does not mean the complete absence of fault. It

must at least render the breach excusable. As the Court of Appeal observed in

Regis, supra, what is required is a good explanation not an infallible one. When

considering the explanation for the breach it must not therefore be subjected to

such scrutiny so as to require a standard of perfection.”17

31. In the application before me, the explanation provided by the Defendant referred to

understaffing problem at the Attorney General’s office. The result was that one clerk was

responsible for all filings, which she completed at 4:00 p.m. At this time, it was too late to

effect service, so service was effected on the following day.

16 See Rawti Roopnarine v Harripersad Kissoo Civ App No. 52 per Mendonça JA at paragraph 32 17 At paragraph 33 of the judgment

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32. It was my view that this explanation begged many questions. The first unanswered question

was the reason why the filing and service of the defence would be left for the last day,

stipulated in the Court’s directions, under the threat of a severe sanction.

33. A similar situation arose in Rawti Roopnarine where, Mr. Fortune, clerk to Mr. Raphael

attempted to exchange witness statements on the last day allowed for that purpose. Mr.

Fortune was unable to complete the task because one of the attorneys-at-law, with whom

the exchange had to be effected was not yet prepared to exchange. The other attorney-at-

law had relocated his office without giving notice of his new address.

34. In those circumstances, the trial judge found fault on the part of the applicant’s attorney-

at-law, for leaving the filing and exchange for the last minute. Justice of Appeal Mendonca,

agreed that it was proper for an attorney-at-law to anticipate the usual problems that may

be encountered18. Justice Mendonca, then proceeded to find that the circumstances which

faced the Appellant and her attorney-at-law were not usual, since the completion of the

task of filing and exchange of witness statements had been frustrated by the attorneys-at-

law, with whom the exchange was required to be effected.

35. It was my view that this case was distinguishable from Rawti Roopnarine, in that the breach

was not caused by the default of the other party. In this application, the breach was caused

by the “eleventh-hour” preparation of the defence, followed by staffing problems.

36. When Ms. Noel ventured forth to file and serve the Defence, one would have expected that

this would have been under the supervision of an attorney-at-law, who must have been

aware that the Defendant faced a severe sanction for failure to file and serve by November

18 See paragraph 39 Rawti Roopnarine Civ App 52 of 2012

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03, 2016. No explanation was provided as to why the defence, in this matter, could not

have been placed on the fast track and why it had to be bundled with other documents,

which may not have been under any sanction, at all.

37. There was also no explanation why, sensitive of the sanction, Ms. Noel could not have

alerted the attorney-at-law on record and asked for special assistance, if she observed that

time was running out for the completion of the task.

38. The facts as presented suggested that the defence was simply forwarded to the filing clerk

with no concern for the severe sanction that would follow non-compliance. The fault was

therefore complete non-chalance, which I did not consider to be a good explanation.

39. I proceeded to consider the last of the factors, as listed at Part 26.7(3) that is to say whether

the appellant had generally complied with all other rules, practice directions, orders and

directions.

40. The procedural history of this claim reveals continuous lack of compliance on the part of

the Defendant. At the inception, the Defendant was late in filing the Appearance. This

should have been filed eight (8) days after the Defendant received service on June 05, 2015.

The appearance was filed two months later on August 05, 2015.

41. The Defendant also missed the deadline for filing the Defence which was due on July 20,

2015. The Defendant applied, out of time on August 06, 2015 for an extension of time for

filing the Defence.

42. The Application for an extension of time was heard on November 05, 2015. On this day, the

Defendant obtained another extension to January 07, 2016.

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43. However, no defence was filed by January 7, 2016. Instead, the Defendant applied for

security for costs by a Notice of Application filed January 7, 2016.

44. The application for security for costs was dismissed on October 03, 2016. The Defendant

again applied for an extension of time to file the Defence. It was because of the Defendant’s

history of non-compliance that the Court made an unless order.

45. When I considered the history of this Claim, the inescapable inference was that there was

an inability on the part of the Defendant to produce the Defence. The Defendant repeatedly

missed deadlines and filed alternative applications, almost as a smoke screen to disguise

their inability to file the Defence. It was my view that the Claim has been marked by general

non-compliance on the part of the Defendant. It was my view that they had not satisfied

the third factor listed at Part 26.7(3).

46. The Defendant referred to Roland James v AG19 and to the reference by Justice of Appeal

Mendonça to Denton v TH White and Another20 where Dyson MR had this to say:

“The court will be more ready in the future to penalize opportunism. The duty

of care owed by a legal representative to his client takes account of the fact

that litigants are required to help the court to further the overriding objective.

Representatives should bear this important obligation to the court in mind

when considering whether to advise their clients to adopt an uncooperative

attitude in unreasonably refusing to agree extensions of time and in

unreasonably opposing applications for relief from sanctions. It is as

unacceptable for a party to try to take advantage of a minor inadvertent error,

19 Roland James v AG iv App No. 44 of 2014 at paragraph 27 20 [2014] EWCA Civ 906 at paragraph 43

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as it is for rules, orders and practice directions to be breached in the first place.

Heavy costs sanctions should, therefore, be imposed on parties who behave

unreasonably in refusing to agree extensions of time or unreasonably oppose

applications for relief from sanctions.”

On the basis of those authorities, learned Senior Counsel for the Defendant argued that the

Claimants ought not to have behaved unreasonably in refusing to grant an extension of

time.

47. It was my view that throughout the period of some two years, from February, 2015 when

the claim was filed to November, 2016, when the Defendant applied for relief from

sanctions, the Claimant had exhibited patience in accommodating all the extensions

sought. Their refusal on this occasion could not be described as unreasonable.

48. It was therefore my view that the Defendant had failed to satisfy the court of two of the

three threshold requirements identified at Part 26.7 (3), that is to say that there was a good

explanation for the breach and that they had generally complied with all rules and

directions.

49. It was therefore my view that the sanction should stand: that the Defendant be precluded

from filing a defence. The defence, as filed, was improperly filed. There being no valid

defence, the Claimants was entitled to judgment in default of defence.

Date of Delivery: February 27, 2019 Justice Mira-Dean Armorer

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