[1] David Goldgar [2] Paul D. Coburn [3] Caribe Canada Ltee [4] Betts Realty Ltd [5] S.P.A.S. Ltd [6] First Security Bank of Utah Appellants v Wycliffe H. Baird Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: EDWARDS J.A. [AG],Ola Mae Edwards,Justice of Appeal [Ag.]
• Judgment Date: 23 October 2007
• Judgment citation (vLex): [2007] ECSC J1023-1
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: CIVIL APPEAL NO.13 OF 2007
• Date: 23 October 2007

[2007] ECSC J1023-1

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards

Justice of Appeal [Ag.]

CIVIL APPEAL NO.13 OF 2007

Between:

[1] David Goldgar

[2] Paul D. Coburn

[3] Caribe Canada Ltee

[4] Betts Realty Limited

[5] S.P.A.S. Limited

[6] First Security Bank of Utah

Appellants

and

Wycliffe H. Baird

Respondent

On written submissions of:

Mr. Damian Kelsick of Kelsick, Wilkin and Ferdinand, Solicitors for Appellants

Mr. Terence V. Byron for the Respondent

EDWARDS J.A. [AG]

1 The appellants (defendants) have filed this procedural appeal against the decision of Belle J delivered orally on the 1^st June 2007, upon an application made by the respondent (claimant).

2 The claimants applied for a Notice of Application before the Learned Judge for anOrder striking out certain documents filed by the defendants and extending time for compliance with the case management order of the Master made on the 19^th March 2007. In the alternative this application sought an Order validating the filing and service of the witness statements filed by the claimant and Steele Douglas, varying the Master's Case Management Order by increasing the number of witnesses for the claimant from 5 to 8, providing for the filing and service of the additional witness statements, or to provide evidence through the medium of a subpoena. The application was filed on the 24^th May 2007.

3 The Master's Case Management Order required the witness statements of the parties to be exchanged and filed by 11^th May 2007. The trial window wasset for June 2007, pre-trial review for 25^th May 2007 and the estimated length of trial was 3 days.

4 The learned judge granted an extension of time to the claimant to file witness statements for himself and Steele Douglas after apparently considering the written submissions and oral arguments of Counsel for the parties. The effect of Belle J's Order was to enable the respondent to file the witness statements of himself and Steele Douglas out of time.

5 In the absence of any record of the proceedings or order of the Learned Judge, this Court granted leave to appeal on the basis of the supporting affidavit of Counsel, Mr. Damien E.S. Kelsick. He deposed as to the reasoning of the Learned Judge in giving his decision. The order granting leave permitted the respondent to file and serve affidavit in opposition on or before the 10^th August 2007. The order further required the parties to jointly request the Registrar of the High Court to request the Judge to provide a minute or memorandum of his decision for assistance of the Court of Appeal if there is a dispute as to the terms or premises of the Judge's Order.

6 It is necessary to reproduce Mr. Kelsick's account that has not been disputed. Hedeposed:

"3. In giving his decision, the Learned Judge appeared to accept that the respondent had not shown a good reason for his failure to file his witness statement in time. He found however that notwithstanding the absence of a good explanation he had jurisdiction to grant the extension on one or more of the following grounds:

• (a) The sanction imposed by Rule 29.11 (1) had not arisen because the trial has not yet taken place and therefore relief under Rule 26.8 did not arise,

• (b) If the Court awarded costs on this application, that could be a sanction imposed and therefore the respondent would not have been relieved from sanctions; and/or

• (c) The Civil Procedure Rules cannot be applied in so strict and/or draconian a manner as to deprive a party of his day in Court in the circumstances of the present case.

4. The Learned Judge further specifically held that the onus of proof was on the applicants to prove that the respondent's failure to comply was intentional and not on the respondent to prove that his failure to comply was not intentional. He consequently held that there was no evidence that the respondent's failure was intentional."

7 The appellants appealed on the following grounds:

• (a) The Learned Judge failed to recognize that the essence of the application before him was an application for relief from sanctions notwithstanding that in form it prayed for extension of time,

• (b) The Learned Judge, having held there was no good explanation given by the respondent as to the failure to file the witness statement in time had no discretion to grant relief from sanctions.

• (c) The Learned Judge erred in not holding that the respondent had failed to prove that the failure to file the witness statements in time was not intentional and deliberate.

8 The findings of law the appellant challenges in the Notice of Appeal are that:

• (a) Notwithstanding that the respondent had not given a good explanation for his failure to file the witness statements of himself and Steele Douglas in time, the Court had jurisdiction to grant relief from sanctions under Rule 28.8,

• (b) Because the trial date had not arrived yet that the sanction imposed by Rule 29.11(1) had not arisen and therefore there was no need for the respondent to apply for relief from sanctions,

• (c) The award of costs is a sanction, which would obviate the need for the respondent to apply for relief from sanctions or from the sanction imposed by Rule 29.11,

• (d) The burden of proof was on the appellants to establish the criteria in Rule 26.8(2) that found jurisdiction to grant relief from sanctions;

• (e) The Court had an over-riding discretion to grant relief notwithstanding the terms of Rule 26.8.

9 Regarding the Learned Judge's alleged finding of law at paragraph 8 (a) and 9d) above, this conflicts with Mr. Kelsick's account as to what the judge found at paragraph 3 (a) of his affidavit. Mr. Kelsick deposed that the Judge found that the sanction imposed by Rule 29.11 (1) had not arisen because the trial had not taken place and therefore relief under Rule 26.8 did not arise. At paragraph 4 of his affidavit, Mr. Kelsick stated that the learned judge specifically held that the onus of proof was on the applicants to prove that the respondent's failure to comply was intentional. It is incorrect therefore to allege what is stated at paragraph 8 (a) and (d) above.

10 Turning to the Grounds of Appeal they raise three (3) primary questions —

• (1) Was there a sanction in effect on the 24^th May 2007 when the claimant filed his application?

• (2) Did the Judge have jurisdiction to extend the time for compliance with the case management order on the claimant's application after the date for exchanging and filing witness statements had passed?

• (3) Do the rules require the Court to exercise its powers under CPR 26.8 where there is only an application to extend the time fixed by a case management order for exchanging and filing witness statements, and the application has been filed after the time fixed has passed?

11 It is well known that this Court will not interfere with the Learned Judge's case management order, unless he is clearly wrong, has misdirected himself in law, has failed to take into account some material matter which he ought to have taken into account, or has taken into account a matter which he ought to have excluded, thereby … "exceeding the generous ambit within which reasonable disagreement

is possible."1

12 These questions must be answered so as to determine whether the Learned Judge's reasoning and decision are flawed. The Court must interpret the relevant provisions of the Civil Procedure Rules 2000 relating to Witness Statements, Relief from Sanctions, Variation of Case Management, Timetable and the Court's Case Management Powers in answering these questions.

The Rules

13 CPR. 29.11 states:

(1) If a witness statement or witness summary is not served in respect of an intended witness within the time specified by the Court, the witness may not be called unless the Court permits.

(2) The Court may not give permission at the trial unless the party asking for permission has a good reason for not previously seeking relief under Rule 26.8.

14 Learned Counsel, Mr. Byron contended that since it is only if the Court does not give permission that a witness may not be called where the witness statement is late, CPR 29.11 (1) cannot be construed as automatically imposing a sanction. Mr. Byron contended further that the consequence of failing to serve the witness statement within the time specified only arises at the trial of the action; and significantly, the rule does not say that the Court cannot give permission otherwise than at the trial. The words "has a good reason for not previously seeking relief under Rule 26.8" in CPR 29.11 (2)does not state that it is necessary to apply for relief under Rule 26.8 in all cases where a witness statement is late, he argued. Neither does CPR.29.11 state that where no sanction has actually been imposed by a Court Order, such as an "unless order", a sanction automatically arises for lateness. Mr.Byron referred to three (3) English cases that are unhelpful to his position. The reasoning in these judgments does not demonstrate any dependence on or application of the relevant English Rules [Mealey Horgan Plc v Timonthy Horgan, Hill Samuel Bank Ltd.2; Kotia v Dewhirst 3[2000] C.L.Y. 4073; Simon Halabi v Fieldmore Holding Ltd. and others [2006] EWHC 1965 (Ch)4.

15 In two (2) of these cases the Court permitted witness statements that were not exchanged within the specified time to be served and exchanged at the trial, on the application of the defaulting party for extension of time, in the case ofMealy Horgan5; and on an application for relief pursuant to Rule 3.8 for permission to serve witness statements, in the case of Kotia6. In the third case Simon Halabi7, the claimant who was non-compliant, made no application for a time extension.

The Court made the Order on the application of the (4) interpleader defendants for an Order that Mr. Halabi be debarred from serving his witness statements out of time without the...