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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV: 2013-04300

BETWEEN

LAKHPATIYA BARRAN CLAIMANT

(also called DOWLATIAH BARRAN)

AND

BALMATI BARRAN FIRST DEFENDANT

RAJINDRA BARRAN SECOND DEFENDANT

MAHENDRA BARRAN THIRD DEFENDANT

BEFORE THE HONOURABLE MADAM JUSTICE DONALDSON-HONEYWELL

APPEARANCES:

Mr. Samuel Saunders instructed by Ms. Gabrielle Figaro for the Claimants

Ms Kathleen Pilgrim Thornhill for the first and Second Defendants.

Date Delivered: September 21, 2015

RULING

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Factual Background:

[1] In this matter the Claimant, aged seventy-seven (77), seeks Relief against her daughter

and grandson. The case against the Third Defendant, her son was discontinued. The

Claimant alleges that her daughter, the First Defendant, obtained her agreement to

convey an interest to herself and the Second Defendant, as Joint Tenants with the

Claimant, in the home where they all reside by promising to take care of the Claimant

for the rest of her life. The Claim is based on breach of contract to fulfil this promise

and also on an allegation that there was a total failure of consideration since ‘Two

Hundred and Twenty Thousand Dollars ($220,000.00) recited in the Deed of

Conveyance was never received.

[2] The Claimant filed a Claim Form and Statement of Case on the 30th

October, 2013. On

the 17th

December, 2013, the First and Second Defendants filed their Defence and

Counterclaim.

[3] By Order of the Honourable Madam Justice Jones [the “presiding Judge”] dated 5th

December, 2014, the Court ordered the parties to file and serve their Witness

Statements on or before the March 3, 2015.

[4] There is a Statement in the evidence filed by the Defendants that on December 11,

2014 they fell out with the Attorney then on record as representing them and she

returned the file to them.

[5] The Defendants’ evidence at paragraphs 7 and 8 of their Affidavit in support of this

Application is that during the period from December 12th

to March 3rd

they consulted

three Attorneys. However, the names of the Attorneys who were consulted, the

methods of consultation and the specific dates are not provided in the Affidavit.

[6] The record includes proof, in the Affidavit of the Defendants’ former Attorney Ms V.

Badrie-Maharaj [“VBM”] in support of her Application to be removed from the record

that the Defendants did consult one Attorney, namely Mr. Chris Seelochan, on

February 27, 2015. On the record it is also clear that eventually when the Defendants

attended the Pre-Trial Review [PTR] herein on April 1, 2015, they informed the

presiding Judge of a retainer of Mr. Seelochan being arranged. Mr. Seelochan,

however, in a letter dated April 15, 2015, attached as “VB3” to VBM’s Affidavit dated

April 17, 2015, placed the blame for the retainer not being arranged on the Defendants.

He says they consulted him first on February 27, 2015 and failed to pay his retainer fee

over the weeks that elapsed thereafter. The Defendants later admitted when questioned

by the presiding Judge.

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[7] On March 3, 2015, the date for filing Witness Statements, only the Claimant filed same

and although VBM remained on record no Application for Extension of Time for the

Defendants to file Witness Statements was filed prior to the date.

[8] On March 5, 2015 the Defendants filed a Notice of Change of Attorneys indicating that

they would represent themselves instead of having an Attorney. The Attorney on

record for the Defendants, VBM, was notified that the correct procedure was not

followed so she remained on record.

[9] On April 1, 2015, the same date that was fixed for the PTR, VBM filed a Notice of

Application to cease to act for the Defendants. It was not served so the presiding Judge

directed that VBM remain on record. Although, the Defendants had still neither filed

Witness Statements nor settled their legal representation, the trial date of April 15,

2015 was not vacated.

[10] On April 15, 2015, the parties appeared before the Court for trial and the Defendants

had still neither filed Witness Statements nor resolved the issues of legal

representation. It was for these reasons that on the Defendants’ Application, the trial

was postponed by the presiding Judge. The Judge made clear, however, by questioning

the Defendants that they had been fully aware of her Order that they should have filed

Witness Statements. The Judge said one of her reasons for not proceeding with the

trial was that she was at that time not sure whether the Defendants or their lawyers

were at fault for not having representation resolved. [This was before the presiding

Judge would have had sight of the letter from Mr. Seelochan, Attorney-at-Law

mentioned above which clarified that the fault lay with the Defendants]. The trial date

was adjourned to April 27, 2015. The Application to remove VBM from the record

was still not in proper form so she remained on record and the hearing of that

Application was adjourned to April 20, 2015.

[11] On April 20, 2015 the Order was granted for VBM to cease to act for the Defendants.

[12] On April 27, 2015 the trial commenced as scheduled although no Witness Statements had

been filed by the Defendants who were self-represented. After the Claimant was sworn

in, the matter was set to be started de novo because the Claimant said that she was not

fully literate and could not confirm that her Witness Statement was read over to her

before she signed it. The presiding Judge directed the Claimant’s Attorney to seek

further instructions from the Claimant so as to have her give evidence-in-chief in the

“old-fashioned way”. In other words the Claimant’s full testimony as a witness would be

provided orally including Evidence-in-Chief by way of responses to non-leading

questions asked by her Attorney. The Defendants were asked to seek an Attorney to

represent them and the trial was adjourned to start de novo on July 22, 2015.

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[13] Some five weeks later on May 19, 2015 a Notice was filed by Ms Pilgrim Thornhill

indicating that she was the new Attorney for the Defendants.

[14] On 22nd

May, 2015, the First and Second Defendants new Attorney filed a Notice of

Application on 22nd

May, 2015 seeking relief from sanctions and a three week extension

of time for filing Witness Statements. There was a docket change in the matter when the

then presiding Judge was elevated to the Court of Appeal on June 1, 2015. The

Defendants’ Application was fixed to be heard on June 15, 2015. The July 22, 2015 Trial

Date was vacated and the Claimant’s given time to file an affidavit in response to the

Defendants’ Application with a decision thereon reserved to 21st September, 2015.

[15] The reasons for the delay in filing Witness Statements were provided in the Affidavit of

the First Defendant filed on the 22nd

May, 2015 and are summarised as follows:

a. That in the month of December, 2014 there was disagreement between herself and

her Attorney-at-Law and the relationship was terminated. Her file was therefore

returned to her on the 11th

December, 2014.

b. Upon receipt of the file, the First Defendant consulted with at least three

Attorneys-at-Law with a view to retaining them for her matter. However, the

Attorneys refused to accept her brief stating that the time was too short to comply

with the Court’s directions.

[16] The First Defendant further stated in her affidavit that the Defendants would be at a

severe disadvantage if their Witness Statements are not filed and that they intend to file

two Witness Statements, one by herself and the other by Mr. Edmund Subryan, the

Attorney-at-Law who prepared one of the Deeds in the matter.

[17] Further, she stated that if the Application is granted, the Witness Statements would be

filed within three weeks and that this would not occasion an adjournment of the trial then

fixed for July 22, 2015.

Issues:

[18] The issue to be determined is whether the First and Second Defendants’ Application for

Extension of Time and Relief from Sanctions should be granted.

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Law and Analysis:

[19] Rule 29.13 (1) of the Civil Proceedings Rules 1998 (the “CPR” provides as follows:

“If a Witness Statement or Witness Summary is not served in respect of an

intended witness within the time specified by the court then the witness may not be

called unless the court permits.”

[20] CPR Rule 28.13 provides that a party who fails to give disclosure by the date specified

in the Order may not rely on or produce any document not so disclosed at the trial.

[21] These are express sanctions provided for in the CPR and therefore a party in default

needs to obtain relief from sanctions pursuant to Rule 26.7 CPR.

[22] The Privy Council in AG v Keron Matthews1 at [15] stated:

“[Rules 26.6 and 26.7 must be read together. Rule 26.7 provides for

Applications for Relief from any Sanction imposed for a failure to comply

inter alia with any rule. Rule 26.6(2) provides that where a party has

failed inter alia to comply with any rule, “any Sanction for non-

compliance imposed by the rule….has effect unless the party in default

applied for and obtains Relief from the Sanction”(emphasis added). In the

view of the Board, this is aiming at rules which themselves impose or

specify the consequences of a failure to comply. Examples of such rules

are to be found in rule 29.13(1) (which provides that if a Witness

Statement or Witness Summary is not served within the time specified by

the court, then the witness may not be called unless the court permits);

rule 28.13(1) (consequence of failure to disclose documents under an

order for disclosure); and rule 33.12(1) (consequence of failure to comply

with a direction to disclose an expert’s report).”

[23] Therefore, the Application for Relief from Sanctions is the correct Application in the

present circumstances as the CPR imposes a penalty where there is a failure to file

Witness Statements.

[24] The Court’s discretion to grant Relief from Sanctions only arises after the conditions

precedent in Rule 26.7(3) CPR have been satisfied. A Court is precluded from granting

relief unless all three conditions are satisfied.

[25] Rule 26.7 states as follows:

1 [2011] UKPC 38

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(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.

(2) An Application for Relief must be supported by evidence.

(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.

(4) In considering whether to grant relief, the court must have regard to: –

(a) The interests of the Administration of Justice;

(b) Whether the failure to comply was due to the party or his attorney;

(c) Whether the failure to comply has been or can be remedied within a

reasonable time; and

(d) Whether the trial date or any likely trial date can still be met if Relief

is

granted.

(5) The court may not Order the respondent to pay the Applicant’s Costs in

relation

to any Application for Relief unless exceptional circumstances are shown.

[26] In the Court of Appeal decision of Trincan Oil Ltd and Others v Martin2, Jamadar, JA

opined that Rule 26.7 is to be interpreted as follows:

“[13] The rule is properly to be understood as follows. Rules 26.7 (1) and

(2) mandate that an Application for Relief from Sanctions must be made

promptly and supported by evidence. Rules 26.7 (3) and (4) are distinct.

Rule 26.7 (3) prescribes three conditions precedent that must all be

2 CA Civ. No. 65 of 2009

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satisfied before the exercise of any true discretion arises. A court is

precluded from granting relief unless all of these three conditions are

satisfied. Rule 26.7 (4) states four factors that the court must have regard

to in considering whether to exercise the discretion granted under Rule

26.7 (3). Consideration of these factors does not arise if the threshold pre-

conditions at 26.7 (3) are not satisfied.”

THRESHOLD TESTS:

Promptitude:

[27] Rule 26.7 (1) requires that an Application for Relief from any Sanction must be

made promptly. In the case of Trincan Oil v Martin where the Application was

made one and one-half months after the period for the filing of the Witness

Statements, without any explanation for the delay as not prompt and stated:

“One and one-half months, in the absence of any explanation, is not

prompt in the context of the time lines of the CPR, 1998 and in the context

of the orders that were made by the judge...”

[28] Further, a delay of eighteen days in making an Application for Relief from

Sanction was upheld by the Court of Appeal as being too late in The Attorney

General of T&T v Universal Projects Ltd3.

[29] In relation to promptitude Jamadar J.A in Trincan Oil Limited v Schnake4 (at

para 22) said:

“Part 26.7 (1) is mandatory. It requires that an Application for Relief from

any Sanction imposed must be made promptly. Promptitude in any case

will always depend on the circumstances of the particular case and will

thus be influenced by context and fact. ‘Prompt’ must be considered in

relation to the date when the sanction was imposed.”

[30] However, in the recent local Court of Appeal judgment of In re The Partition

Ordinance Chapter 27 No.14…Rawti a/c Roopnarine, Rawti; Roopnarine,

Kumar v Harripersad a/c Kissoo, Harripersad; Rakhunanan a/c Boodoo,

Harry, Bhagmatic a/c Bhagmatiah a/c Boododdsingh, Bhagmattie; Chanerwali

3 Civ. App. No 104 of 2009

4 Civ App 91 of 2009

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a/c Chanadaye a/c Roopsingh Chanadaye5 the decision of the judge at first

instance who ruled that a delay of three months could “by no stretch of

imagination be deemed to have been prompt” was overturned. The court further

stated that:

“Whether an Application for Relief is promptly made depends on the facts

of each case. What is prompt in one situation may not be so considered in

other circumstances. Promptness is therefore influenced by the context and

facts of each case.” ...and…”Whether an Application is prompt does not

depend simply on the time that has elapsed from the date the Sanction took

effect to the date the Application for Relief was made. It depends on the

factual context and there are other relevant and more significant matters

in this case that the judge did not consider.” ……….

………. “The Application was ….. made almost four (4) months after the date

the Sanction took effect in relation to these Witness Statements. But it was

made in the context where the Witness Statements were filed in time and

served the following day. This was well before the pre-trial review and the

trial date. The parties appeared at the pre-trial review and, having read

the statements indicated that they had no evidential objections to them.

The Application for Relief was therefore made long before the trial date

and in circumstances where it could cause no prejudice to the parties nor

delay of the trial. Such considerations are relevant and form an essential

part of the context in which promptness must be considered. When those

considerations are taken into account it is not possible to regard the

Application as not having been made promptly. Indeed, when those

circumstances are taken into account the Application for Relief is best

viewed in the nature of a house-keeping exercise” [emphasis added]

[31] In the present case, the Application was made approximately two months after the

deadline had passed. Taken on its own, this delay may not be considered prompt.

However, the context of the case must be taken into account. In this case the

context within which the failure to file Witness Statements took place differs from

that in Rawti in that in this case the followed on many warnings and reminders by

the presiding Judge, caused a postponement of the Trial and prejudiced the

interests of the Claimant who is elderly and unwell in having a timely disposition

of the matter.

I have also taken into consideration as part of the context within which to

determine promptness, the Defendants’ explanation for the delay. It is my

determination that unlike the situation in Rawti where the failure of counsel for

5 Civ. App. No 52 of 2012

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the other party to provide information on a change of address contributed to the

delay, there was nothing in the Defendants’ explanation in the context of this case

to support a finding that the Application was prompt.

Good Explanation for Delay:

[32] In addressing the issue as to whether there was “a good explanation” for the

breach guidance may be sought from the cases of Regis, Miguel v Attorney

General of Trinidad and Tobago6, Universal Projects and Rawti.

[33] In Regis, it was stated that what is required is a good explanation, not an infallible

one. Whether such an explanation has been shown is a question of fact to be

determined in all the circumstances of the case, and is therefore a matter of

judicial discretion.

[34] In the Universal Projects, the Privy Council came to the same conclusion as

Jamadar, JA and found that there was no “good explanation” for the failure to file

the defence. The Board considered:

“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.”

[35] In the recent Court of Appeal judgment of Rawti, Mendonca, J.A. stated, “when

considering the explanation for the breach it must not therefore be subject to such

scrutiny so as to require a standard of perfection.”

[36] In the present case, the explanation for the delay given was the termination of the

retainer between the Defendants and their Attorney and further, the Defendants’

inability to secure an Attorney-at-Law because all three that were said to have

been consulted “felt the time was too short.”

[37] This explanation cannot be accepted as a good one in the circumstances. There is

no explanation as to what the time was too short for, but at that time all that was

required was discovery of documents by January 2, 2015 and filing of Witness

Statements by March 10, 2015. It is not a reasonable explanation that Attorneys

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felt the time was too short. It very unlikely that for the period in question, more

than seventy (70) days from January to March, no Attorney could be retained that

did not feel the time was too short. In any event, as correctly stated in the

Claimant’s Written Submission, any Attorney-at-Law consulted would know that

it was open to them to apply for an Extension of Time for complying with the

Court’s Orders before the date set for filing and before the sanctions came into

effect. Further, according to Rule 26.7 (4) (b), due consideration must be given

to whether the fault was due to the party or their Attorney. This was an issue that

was brought to the attention of the parties as being considered by the presiding

Judge on April 15, 2015. In all the circumstances, it is my finding that, there was

no good explanation for the delays herein and the delays were the fault of the

Defendants and not their Attorneys.

[38] In the present case, by Order dated December 5, 2014, the Honourable Madame

Justice Jones directed that discovery be completed by January 21, 2015 and that

un-agreed bundles of documents were to be filed by February 13, 2015. The

Claimant filed its bundle and list of documents but the Defendants have yet to do

so. They have not disclosed any documents in discovery and cannot rely on any

documents other than those disclosed by the Claimant if this matter proceeds to

Trial. The Defendants therefore have failed to establish that the last of the

threshold requirements, general compliance with all other directions as required at

CPR 26.7(3) (c) was met.

[39] Accordingly, the Defendants have not satisfied the threshold requirements as

stated in CPR 26.7 (1)-(3) and are not entitled to relief from sanctions. The Court

is not therefore required to consider the factors set out in CPR 26.7(4) in

considering whether to grant Relief from Sanctions. However, for completeness

they were also examined before coming to a determination on how to proceed

herein.

OTHER CONSIDERATIONS:

Administration of Justice:

[40] In order to determine whether this factor has been satisfied, the Court has to

consider the needs and interests of the parties as well as other Court users7. The

prior failures of the Defendants have resulted in wasted Court dates adding to the

expense of the Claimant and depriving other Court users of efficient allocation of

the Court’s resources. On the other hand the Court was prepared to proceed with

the trial on April 27th

but the hearing was discontinued due to the Claimant’s

7 Rowley v Ramlogan, Civ App No. P215 of 2014 at para. 34

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difficulties. As between the parties, I am of the opinion that it would be in the

interest of the administration of justice for the matter to progress to trial where the

issues raised on the pleadings will be fully ventilated. It is my view, however,

that this would not necessitate Relief from Sanctions as claimed and can justly be

achieved without the Defendants being permitted to file Witness Statements, as

will be hereinafter directed.

Fault of Party or Attorney:

[41] As stated above, it is to be noted that the failure to file was due to the fault of the

Defendants and not their Attorney.

Whether breach can be remedied within reasonable time and whether the trial date

can still be met:

[42] It has been submitted by the Defendants that; had the date for hearing of the

Application been kept at July 22, 2015 the Witness Statements could have been

filed within three weeks and the three weeks would fall before the trial date. This

would not have occasioned an adjournment of the trial and therefore the trail date

could still have been met. Currently a new trial date has not been set so it will be

possible for the Defendants to file Witness Statements without causing a trial date

to be vacated. It must, however, be recalled that the Defendants had by failing to

file Witness Statements previously caused the first trial date to be vacated.

Conclusion:

[43] Having regard to the failure of the Defendants to meet the threshold requirements

for Relief from Sanctions I consider it to be in the interests of justice that the

Defendants’ Application for Relief from Sanctions and for Extension of Time to

file Witness Statements be dismissed. Accordingly, the Defendants will not be

permitted to file Witness Statements herein.

[44] The Claimant has asked that in addition to dismissing the Defendants

Applications that the Court as a consequence also exercise its discretion to give

Judgement against the Defendants on her Claim. It is however my view that the

overriding objective of dealing justly with this case, a matter involving family

members with the family home as the subject matter of the dispute, will be best

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served if the matter continues to trial in the manner envisaged in the presiding

Judge’s directions at the aborted trial on April 27,2015. In exercise of the

discretion afforded under CPR 29.13(1), to permit the party that has failed to file

a Witness Statement to call witnesses at trial, I will therefore permit the First

Defendant to give evidence at trial and be cross-examined. The Defendants will

not be permitted, however, to call any additional witnesses and evidence-in-chief

will be restricted to the facts stated in the Defence. The Claimant and the First

Defendant will be required to give evidence in the old fashioned way. Further,

having failed to comply with the Court’s discovery directions the Defendant’s

will not be permitted at the trial to rely on or produce any document not so

disclosed.

[45] The Defendants Applications are dismissed with costs to the Claimant.

Eleanor J. Donaldson-Honeywell

Judge

Assisted by: Christie Borely

Attorney-at-Law

Judicial Research Counsel

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