REPUBLIC OF TRINIDAD AND TOBAGOwebopac.ttlawcourts.org/.../2012/cv_12_03303DD17jun2013.pdf · 2013....

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2012- 03303

BETWEEN

HUGH LEE KING

(In his capacity as Executor of the Estate

of Lawrencia Emmanuel, formerly

Lawrencia Raymond, Deceased)

Claimant

AND

LEO MARTINEZ

Also called

LEON MARTINEZ

(In his capacity as Legal Personal Representative

of the Estate of Cecil Emmanuel, Deceased)

VERONICA LAMBERT

Defendants

BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES

Appearances:

Mr. I. Benjamin instructed by Ms. A. Sooklal for the Claimant.

Mr. K. Taklalsingh instructed by Mr. V. Indarlal for the Defendants.

RULING

1. This is an application by the Claimant, Hugh Lee King, by which he seeks orders

pursuant to Part 26.7; Part 29 and Part 31 of the Civil Proceedings Rules 1998, as amended (“the

CPR”). This application filed on 15th

May 2013 is made under the following circumstances. The

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trial of this action came up for hearing on 14th

May 2013. The issues for my determination at the

trial were:

(i) whether the will dated 24th

June 1981 was the last Will and Testament of

the Deceased; and

(ii) whether the doctrine of laches applied.

2. On the morning of the trial immediately prior to the hearing I requested Attorneys to

attend before me. At that time in the presence of both Attorneys, I drew to the attention of

Attorney for the Claimant the fact that the witness statements filed by her did not treat with the

first issue for my determination and my opinion that her client’s entitlement to pursue the action

was based on a determination of that issue.

3. In response Attorney for the Claimant informed me that she had in her possession an

affidavit of due execution sworn by the attorney-at-law who had prepared the will and it was her

intention to have this affidavit filed before the commencement of the trial and proceed on that

basis. I indicated my reservations as to whether the affidavit of due execution would suffice

given the issues for my determination, the relief sought by her and the directions given by me in

this action.

4. After some discussion on the issue Attorney for the Claimant indicated her intention

to seek an adjournment of the trial for the purpose of making an application which would allow

her to lead evidence with respect to the execution of the will. Attorney for the Defendants’

position was that he would not object to the application to adjourn the trial but signalled his

intention to object to any application made for the purpose of putting further evidence before the

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court. The matter was eventually called and, in accordance with the discussions, Attorney for the

Claimant applied for and was granted an adjournment to 27th

June, 2013 to allow the necessary

application to be made.

5. This application was filed the next day. By this application the Claimant, pursuant to

Part 26.7; Part 29 and Part 31 of the CPR, seeks an order that:

(i) the time for the filing of a witness statement and/or an affidavit of due

execution from Lalkrishna Doodnath, Attorney at Law, be extended to 24

hours of the making of an order herein;

(ii) leave be granted, if necessary, for the filing of a supplemental witness

statement of the Claimant;

(iii) the Claimant be relieved from sanctions for his failure to comply with the

directions given by this Court on February 18th

, 2013.

6. The Claimant seeks this relief on the following grounds:

(i) The failure to comply was not intentional and can be remedied immediately

after the Court makes an order.

(ii) This application has been made promptly upon the omission being drawn to

the attention of the Attorney for the Claimant.

(iii)The omission arose as a consequence of the events which occurred at the

three case management conferences which preceded the trial on May 14th,

2013.

(iv)The grant of an order in the circumstances of this case would not delay the

trial of this action which is now fixed June 27th

, 2013.

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(v) The Claimant has complied with all other orders and directions of this

Court in this matter.

(vi) Finality of litigation and determination on the merits or issues between

the parties would serve the best interests of the administration of justice

(vii)In all the circumstances the exercise of discretion to grant the relief

sought would be fair and just.

(viii)The Defendants would not be prejudiced in the fair trial of this action by

the grant of the relief sought.

7. The thrust of the application and the arguments in support is that as a result of the

events which occurred during the case management conferences and the pre-trial review in this

action Attorney for the Claimant was of the view that it was accepted between the parties and the

Court that the issue of the due execution of the will could be proved by way of an affidavit of

due execution.

8. Notwithstanding the contents of the affidavit in support this is not a situation in

which the facts are in dispute. The Defendants have not filed an affidavit in opposition to that

filed by the Claimant and it is accepted by the Claimant that while Attorney’s recollection of the

facts is relevant it is at all times subject to the court record. Given the nature of the application

and the conclusions drawn by Attorney for the Claimant with respect to discussions at these

hearings and the contents of the affidavit in support of the application it is unfortunately

necessary to refer to the record as to what transpired at these hearings in some detail.

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9. The history of these proceedings has been obtained from the court file, the recordings

of the case management conferences and the pre-trial review which have been transcribed and

made available to the parties and the orders made pursuant to those hearings. I am satisfied that

the transcripts prepared from the recordings of those hearings represent an accurate record of

those hearings. With respect to the relevant hearings I propose to deal with each by reference to

the facts as revealed by the transcripts. In my opinion this represents the factual matrix against

which I have to determine this application.

10. Despite the fact that on its face the application before me purports to be based on three

rules: Part 26.7; Part 29 and Part 31 this is in essence an application for relief from sanction. As I

understand the submissions of the Claimant the reference to Part 29 of the CPR is with reference

to the power of the court to determine the manner by which it requires proof of any fact in

dispute before it1. In similar fashion the reference to Part 31 is with reference to the power of the

court to allow evidence to be given by affidavit instead of or in addition to a witness statement2.

Both these rules are directly relevant to the alternative request for the extension of time for filing

an affidavit of due execution.

11. At the end of the day therefore this application remains an application for relief from

the sanction imposed by Part 29.13(1) of the CPR. The sanction being that in the event a witness

statement is not served within the time specified by the court the witness may not be called

without the court's permission. Part 29.13 (2) has no relevance to this application since the

Claimant has not sought and did not seek at the trial permission to lead the evidence of any

1 part 29.1

2 part 31.1(1)

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witness other than those witnesses on whose behalf witness statements were filed but rather

sought an adjournment to make the application.

12. It is now settled law that in this jurisdiction an application for relief from any sanction

imposed for a failure to comply with any rule, court order or direction must be made promptly

and the three requirements identified in Part 26.7 must be satisfied before the exercise by the

court of the discretion identified in Part 26.7(4)3 . If any of these four requirements, collectively

referred to as “the threshold requirements” are not satisfied I cannot grant the relief sought.

13. The Claimant must therefore first satisfy me that: (i) the application was made

promptly; (ii) the failure was not intentional; (iii) there is a good explanation for the breach and

(iv) the Claimant has generally complied with all other relevant rules, practice directions, orders

and directions before I am called upon to exercise my discretion under the rules. In the exercise

of my discretion, if it arises, I am mandated by the CPR to apply the Overriding Objective4.

14. With respect to the threshold requirement of compliance while there was non-

compliance by the Claimant with my directions as to the provision of authorities this omission

was brought to my attention at the pre-trial review and rectified by the date of trial. With respect

to the filing of the trial bundle in accordance with Part 40.1 at the Pre-Trial Review I relieved the

Claimant of that responsibility. I am satisfied therefore that there has been general compliance on

the part of the Claimant. Indeed in their submissions the Defendants concede that they have no

issue with that part of the rule.

3 Trincan Oil Ltd and others v Chris Martin C.A. Civil No. 65 of 2009.

4 Part 1.2 of the CPR.

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History of the Proceedings

15. This action first came before me by way of an application for an injunction. Pursuant

to that application on 9th

October 2012 the Defendants gave an undertaking in terms of the orders

for injunction sought and the first case management conference was fixed for 7th

November

2012. This hearing was rescheduled to 7th

January 2013 as a result of the grant by consent of an

extension of time for the Defendants to file their defence.

16. The first case management conference was held on 7th

January 2013. The Claimant

was represented by Ms. Sooklal while the Defendant was represented by Mr Indarlal, now

Instructing Attorney. The record reveals that at that hearing permission was given to the

Claimant to file and serve a reply and an order was made for discovery to be completed by 25th

January 2013. During the course of this case management conference there was a discussion and

an identification of the two issues raised in the pleadings, that is the validity of the will and the

question of laches. These were identified as the only issues for my determination. Thereafter

there was some further discussion with respect to the number of witnesses. The Claimant’s

Attorney for her part indicated her intention to call five witnesses.

17. During the course of this discussion I enquired of Instructing Attorney for the

Defendants if the plea with respect to the execution of the Will was merely a formal plea or

whether he had instructions with respect to its execution. Thereafter the record reveals that I said

as follows: “I will tell you my difficulty I really don't want us to be wasting time the Will seems

to have been witnessed by two attorneys. I mean, are you really challenging the execution in

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those circumstances.” The response of the Defendants’ Attorney was that his instructions were to

put it to the Claimant.

18. Thereafter there ensued a discussion on the question of laches which ended with an

agreement to have a further discussion on that point. The record then discloses the following

statement made by me: “in the interim, what you could do Ms. Sooklal is to provide the witness

statement from the surviving witness and send it to the other side. It may very well be that in the

circumstances, I mean you may still want to cross-examine but it may very well be that in the

circumstances and also to avoid unnecessary cost etc. So let's have that done. I give you until the

end of the month to return.” The case management conference ended at that point in time with

the understanding that at the next case management conference both issues would be addressed.

19. As a result of an application made by way of a letter dated the 31st January to

reschedule the case management conference as a result of the death of Attorney for the

Claimant’s mother on 29th

January, the second case management conference, which had been

scheduled for 1st February, was rescheduled to 18

th February. On that date, 18

th February, Ms

Sooklal appeared for the Claimant and Mr Taklalsingh for the Defendants. At that hearing, Mr

Taklalsingh confirmed that he was pursuing the question of laches. This prompted a discussion

on this issue.

20. At the end of that discussion I confirmed the two issues for trial and gave directions

with respect to the trial. These directions included a direction that the evidence in chief be given

by way of witness statements and provided a date for the filing and exchange of the witness

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statements. In accordance with my practice the directions order was reduced into writing. The

Court file reveals that on the 18th

February copies of the order were sent by way of e-mail to the

Attorneys at the addresses provided by them on the documents filed in the court and hard copies

subsequently delivered to Attorneys.

21. In accordance with a consent order made by the parties to extend the time for the

filing of the witness statements the witness statements in this matter were filed on 15th

April

2013. The Claimant filed three witness statements while the Defendants filed six.

22. The next hearing was the pre-trial review which was fixed for the 2nd

May. Attorney

for the Claimant was not present at that hearing, but there was an Attorney holding for her. The

record discloses that at that hearing I heard objections to the proposed evidence contained in the

witness statements. After hearing of the objections Attorney holding for Ms. Sooklal raised two

housekeeping matters, one related to the filing of a trial bundle and the other with respect to the

list of authorities. After dealing with those two issues I made an enquiry as to the bundles of

documents and Attorney holding for Ms. Sooklal confirmed that they had been filed in

accordance with my order. The pre-trial review ended at that point. There is no record of any

indication to me that an affidavit of due execution of the Will of the Deceased had not yet been

filed nor is there any record of an extension of time being granted by me to the date of trial for

the filing of the said affidavit.

23. Insofar as the discussions at the Case Management Conferences and the Pre-Trial

Review are concerned I am satisfied that the record reveals that:

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(i) from as early as 7th

January 2013 the issues for determination at the trial

were identified to be whether the Will was the last Will and Testament of

the deceased and whether laches applied;

(ii)there was at no time any discussion with respect to the proof of execution

of the Will by way of an affidavit of due execution, nor was there at any

time any discussion with respect to an affidavit of due execution. There

was however a suggestion made by me on 7th

January with respect to the

Claimant’s Attorney sending to the Defendants’ Attorney a witness

statement from the witness to the execution of the Will;

(iii) there was no discussion at the pre-trial review, or at all, with respect to

the filing of an affidavit of due execution. Neither was an extension of

time granted by me to file such affidavit by the date of trial.

24. In this regard I am satisfied that no issue of adopting an affidavit of due execution for

the purpose of proving the execution of the Will was raised in these proceedings and in any event

my order was that the evidence be led by way of witness statements. In addition, from what

subsequently transpired and the admission in the affidavit in support that was only after the

hearing of the 18th

February that contact was made with the witness, it is reasonable to infer that

the suggestion by me at the hearing of the 1st February that the witness statement of the witness

be sent to the other side was not followed. It follows therefore that there was no attempt by the

Claimant to resolve the issue in the manner suggested by me at the first case management

conference. In those circumstances the issues for determination remained the same and this is

confirmed by the order made on the 18th

February.

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Was the application made promptly?

25. The Claimant submits that since the application was made the day after being

advised by me of the position the application was made promptly. The Defendants on the other

hand, submits that the relevant date was 15th

April that being the date by which the Claimant was

required to file its witness statements. It is clear that the issue of promptness is not as simple as is

suggested by either of the arguments presented. It is now settled law that promptness will always

depend on the circumstances of the particular case and will be influenced by context and fact.5 I

am satisfied that while the date the sanction was imposed is relevant it is not necessarily

determinative of promptness. A determination as to promptness is not as simple as merely

calculating from that date to the date of the filing of the application for relief it is clear that

consideration must be given to the particular facts of the matter6.

26. This was not a case in which there were long periods of time between case

management and the date of trial. This action came before me first by way of an application for

an injunction. In lieu of the orders for injunction sought by the Claimant on 9th

October 2012 the

Defendants gave an undertaking by which they agreed not to mortgage or part with the

possession of the premises to anyone other than the Claimant and not to erect any further

structures on the premises or conduct any business other than the existing fruit stall and park

business until the determination of the action. In those circumstances an early trial date was

given and the directions with respect to the steps to be taken crafted in the light of the short trial

date. Any consideration as to promptness in this case must therefore be made in the context of

5 Trincan Oil Ltd v Schnake C.A. Civil No 91 of 2009

6 Roopnarine and another v Kissoo and others Civil Appeal No 52 of 2012 per Mendonca JA pages 7 to 9.

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the time frames fixed by the directions order and the fact that undertakings in lieu of injunctions

had been voluntarily given by the Defendants pending the determination of the action.

27. The direction order provided for the witness statements to be filed and exchanged by

11th

April, 2013. This date was extended to 15th

April by the consent of both parties. The 15th

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April therefore was the date by which the sanction kicked in. If the witness statements were not

filed by 15th

April then, in accordance with Part 29.13(1), the intended witness could not have

been called to give evidence at the trial fixed for the 14th

May without my permission.

28. It has not been suggested that the Claimant’s Attorney did not know the date by

which the witness statements were to be filed. Indeed this was clearly not the position since there

was an application made by way of consent to extend the time for filing the witness statements.

In this regard therefore it is certain that the Claimant’s Attorney was aware of the date fixed for

the filing of the witness statements. Neither has it been suggested that the Claimant was unaware

that the order of the Court was that the evidence in chief be by way of witness statements. The

Claimant in fact filed three witness statements in accordance with the order.

29. Neither is it the Claimant’s case that a direction for the filing of an affidavit of due

execution was made but inadvertently left out of the order. In these circumstances it would seem

to me that this therefore is not one of the cases in which the date on which the Claimant’s

Attorney’s attention was drawn to the breach is relevant to the issue of promptness. At all

material times Attorney knew of the directions of the Court and in these circumstances knew that

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in accordance with those directions no witness statement was filed with respect to the execution

of the Will.

30. Rather the Claimant says that as a result of what occurred at the first case management

conference it was her understanding that it was common ground that the filing of the affidavit of

due execution of the deceased's will would be satisfactory. It is clear from the facts as disclosed

by the record and found by me that this was a misunderstanding or misapprehension of the facts

by Attorney. The real question here is whether given the discussions and exchanges at the case

management conference such misunderstanding was understandable and whether, if it was, given

what subsequently transpired was it reasonable for the Claimant’s Attorneys to continue to hold

that misapprehension. In other words are there any facts which would have encouraged or led

the Claimant’s Attorneys to come to this conclusion. If there are then I am satisfied that this

would be a relevant and significant factor to take into consideration when determining

promptness.

31. According to the affidavit in support in response to my enquiry as to whether he was

seriously contesting the will Attorney for the Defendants said that he was not in a position to

dispute the will; had no instructions upon which to do so and provided that there was an affidavit

of due execution he could take that issue no further. I think it is fair to say that if that statement

was in fact made there would be some reasonable basis for the Claimant’s Attorney’s

understanding. The problem is that what the record discloses was that Attorney for the

Defendants merely responded that his instructions were to put it to the Claimant. In fact the

record discloses that the suggestion that proposed evidence with respect to the execution of the

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Will be sent to the other side came from me. The exact words used however was that the witness

statement be sent to the other side. It is clear that at no time did the issue of an affidavit of due

execution arise. I can see no basis, reasonable or otherwise, for the understanding deposed to by

Attorney for the Claimant.

32. Indeed it is clear that at all material times what was being discussed was witness

statements. The statements were made in the context of the number of witnesses required to

address the agreed issues and in particular the Claimant’s Attorneys suggestion that she would

need to call 5 witnesses. In the circumstances I am of the opinion that the Claimant’s Attorney’s

understanding as to the position arrived at that case management conference had no basis in fact

and was not a reasonable conclusion to draw from what occurred.

33. There was, in my opinion nothing that was said in any of the case management

conferences which would have lead the Claimant’s Attorney to the conclusion that the proof of

the issue of the due execution of the will would be satisfied by an affidavit of due execution. I

am satisfied that in the circumstances it is not a factor to be taken into consideration in relation to

promptness. Further it would seem to me that to hold such a position even in the light of the

directions order and the requirement that evidence in chief be by way of witness statements and

in the absence of a specific direction as to proof of execution by way of an affidavit cannot be

considered to be reasonable.

34. Neither can I in determining promptness apply the reasoning adopted by des Vignes

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J. in the case of Fabian La Roche and others v the Attorney General of Trinidad and Tobago7 to

the particular facts of this case. In the La Roche case there was no date fixed for trial. In those

circumstances des Vignes J. was of the opinion that the sanction eststablished by Part 29.13, was

one which was not yet imposed and, in the peculiar circumstances of that case, the lapse of time

between the breach and the filing of the application for relief was not determinative of whether

the Defendant made the application promptly.

35. This, unfortunately for the Claimant, is not the position in the instant case. In the

instant case the trial was adjourned because of the sanction imposed. It was because the Claimant

could not prove one of the essential elements of the case as a result of her failure to comply with

the relevant order that the trial was adjourned. Indeed had the application been made within a

prompt time after the breach there would have been no need to adjourn the trial.

36. In the circumstances it would seem to me that on the facts of this case the relevant

date to begin to compute time is the 15th

April 2013. The question of promptness must take into

consideration the fact that there was some urgency in the matter given the application for an

injunction and the undertakings given by the Defendants pending the determination of the trial

and the relatively short time frames given by the directions order in the circumstances. I am

satisfied that the fact that Attorney’s attention was only drawn to the breach the morning of trial

is not in the circumstances a factor to be taken into consideration in determining promptness.

37. It is clear from an examination of the record of the hearings, the directions order and

the consensual extension of time for the filing of the witness statements that the Attorney was

7 CV 2007-02000

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aware of the terms of the order and ought to have been aware of the fact of its breach long before

the morning of trial. Further I am convinced that the understanding arrived at by the Attorney

from the discussions at the first case management conference was not reasonable in the

circumstances. I am satisfied that in the circumstances of this case this application was not made

promptly.

38. Although the lack of promptness is determinative of the application I propose now

to consider the other factors raised by Part 29.7(3).

Intention

39. The question to be answered here is whether there was a deliberate positive intention

not to comply with the directions order as varied by consent, that is, the requirement that

evidence in chief be by way of witness statements which were to be filed and exchanged by the

15th

April. 8 It is clear from the affidavit in support that with respect to the proof of execution of

the Will the Attorney’s intention was not to file a witness statement. At all material times her

intention was to file an affidavit of due execution. In this regard with reference to what occurred

at the first case management conference on 7th

January the Attorney deposes:

“As a result I took the view that such an affidavit was appropriate and that it

was not appropriate for this evidence to take the form of a witness

statement.”

40. As it transpires that this view was taken even in the light of the suggestion by the

8 Per Jamadar JA in Trincan Oil Ltd v Schnake at page 14 paragraph 41.

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Court that a witness statement of the witness be sent to the other side. The question to be

answered is whether there was a deliberate positive intention by the Attorney not to comply with

the order. On a consideration of the facts presented the answer to that question must be yes. On

the facts as deposed to by the Attorney there was a deliberate and positive intention not to file a

witness statement with respect to the issue of the execution of the Will and this despite the

subsequent confirmation in the directions order of the issues for determination and the directions

given as to the manner by which evidence was to be received.

Good Explanation

41. “An explanation therefore that connotes a 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 Regis9....... 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.”10

The test here is subjective as opposed to the more objective test required to determine

promptness.

42. In my opinion there is no need to rehash what occurred at the case management

conferences and the pre-trial review when dealing with whether there was a good explanation for

9 A G of Trinidad and Tobago v Michael Regis Civil Appeal No. 79 of 2011( footnote mine)

10 Per Mendonca JA in Roopnarine and another v Kissoo and others at page 11 paragraph 33.

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the breach. The only additional fact to be considered here in my opinion is the death of Attorney

for the Claimant’s mother. The evidence in this regard is as follows:

“Before the date of the hearing of the Case Management Conference my

mother succumbed to cancer after being ill for six months. By letter dated

January 31st, 2013 I wrote to this Honourable Court that I would not be able

to attend the hearing scheduled for the following day, and requested an

adjournment. A copy of the letter dated 31st of January 2013 is hereto

annexed and marked”AS.2”........ as a result of my personal circumstances I

was effectively away from Chambers until the third week of April, 2013.

Nevertheless I attended the next case management hearing held on the

February 18th

, 2013.........”

43. The letter referred to the death of her mother on 29th

January and requests a

rescheduling of the case management conference to the 14th

or 18th

of February or any other date

at the Court’s convenience. It is of credit to the Attorney for the Claimant that she does not seek

in the application to lay the blame for what occurred on the illness and subsequent death of her

mother. It is clear however that the period of her mother's illness and subsequent death would

have been extremely traumatic.

44. And while it is, in my opinion, a factor to be kept in mind and while the Attorney is

deserving of my sympathy I must deal with the notice of application as it is presented. It is clear

that the explanation relied on was based on the Attorney’s understanding of what occurred at the

first case management conference of 7th

January and her opinion that an affidavit of due

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execution was appropriate. Although she does not say that in so many words, it is clear that her

position is that her understanding of the stance taken in the first case management conference

was confirmed after the pre-trial review when Attorney holding for her advised that she had

communicated to the Court that the affidavit of due execution had not yet been filed and in

response the Court allowed an extension of time for the filing to the date of trial.

45. On an examination of the reasons given by Attorney even if I were to accept as

reasonable her understanding of the effect of the discussions at the first case management

conference it is clear that some fault must be laid at her feet. She fails to explain away the fact of

the specific reference in the directions order that evidence in chief be given by witness

statements or her failure to take steps to remedy what she must have thought was an omission in

the order of the 18th

February.

46. In any event as we have seen an examination of what actually occurred at the first case

management conference confirms that there was no undertaking given by Attorney for the

Defendants that he would take the issue no further provided that there was an affidavit of due

execution. In the circumstances, it is clear and I have found that the conclusion that there was

common ground in this regard was not a conclusion to which she could reasonably have arrived.

The question to be answered however is not whether the Attorney is blameless but whether the

explanation given renders the breach excusable.

47. At the end of the day I am satisfied that this turns on the mental and emotional state

of the Attorney at the time. According to the affidavit in support the Attorney’s mother

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succumbed to cancer after being ill for six months. It would seem to me that while not

necessarily excusing the position taken after the first case management conference this would

provide an explanation for Attorney’s failure to properly address her mind to the directions made

by me at the second case management conference and confirmed by the directions order.

48. In my opinion this is clearly one of those borderline cases which can go either way.

After much deliberation however if it were necessary for me to consider whether the Attorney

had provided a good explanation for the breach I would have come to the opinion that the

explanation provided by the Attorney although not indicating a complete absence of fault, given

what would have been her mental and emotional state at the time rendered the breach excusable.

49. At the end of the day however the application must fail. The Claimant has failed to

satisfy me on two of the threshold requirements: Promptness and intention.

50. In the event that the Claimant had satisfied me on all four of the threshold

requirements in applying Part 26.7(4) I would have exercised my discretion by allowing the

extension of time for the filing of the witness statement for the following reasons. Although a

consideration of the interests of the administration of justice involves the question of certainty of

the law, ensuring that the case is dealt with expeditiously and obedience to the orders of the court

at the end of the day the trial was adjourned by consent. Further, the administration of justice

clearly requires that some consideration be given to allowing a party the best opportunity to

present its case.

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51. In this case it is clear that the failure to comply was solely due to the fault of Attorney

and not the client. The trial has been adjourned to a reasonably short date and it is clear from the

affidavit of the Attorney for the Claimant that the failure can be remedied within a reasonable

time which would not affect the new trial date. In addition while the Claimant is required to

prove due execution it is clear that this is not an issue which is vigorously opposed by the

Defendants.

52. In these circumstances I would have exercised my discretion in favour of the Claimant;

ordered that the witness statement of Lalkhrishna Doodnath be filed within 24 hours of my order

and that the Claimant pay the Defendants’ costs of the aborted trial and this application. With

respect to the request to file a supplemental witness statement of the Claimant the Claimant has

not satisfied me that this is necessary. Indeed no reason has been given for this request and it

would not have been granted.

53. Accordingly, despite the fact that looking at the facts “in the round” the Claimant has

provided a good explanation for the breach and has generally complied with all other rules

practice directions and orders and directions, I find that the Claimant has not satisfied me that the

application was made promptly or that the failure to file a witness statement directed to the proof

of due execution was not intentional. In the circumstances this application is dismissed.

Dated this 17th

day of June, 2013.

Judith Jones

Judge

REPUBLIC OF TRINIDAD AND TOBAGOwebopac.ttlawcourts.org/.../2012/cv_12_03303DD17jun2013.pdf · 2013....

Documents

Transcript of REPUBLIC OF TRINIDAD AND TOBAGOwebopac.ttlawcourts.org/.../2012/cv_12_03303DD17jun2013.pdf · 2013....