REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV 2011-03806
BETWEEN
ADANNA PAUL
Claimant
AND
WELL SERVICES PETROLEUM COMPANY LIMITED
Defendant
Before The Hon. Madam Justice C. Gobin
Appearances:
Ms. R. Ramjit for the Claimant
Ms. A. Hasnain instructed by Mrs. A. Orie for the Defendant
JUDGMENT
1. This is an application made pursuant to S. 9 (1) of the Limitation of Certain
Actions Act Ch.7:09 to override the limitation period for bringing an action for
damages for personal injuries on the statutory ground that it would be equitable to
allow it to proceed. I have considered the application, the evidence in support and in
opposition to it as well as the submissions on both sides and grant the claimant’s
application for the reasons set out.
2. This is not the first time that this matter is before the Court. There was an earlier
action which was withdrawn in April 2011. In the light of the defendant’s
submissions it is necessary to look at the history of the earlier action. In those
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proceedings the claimant claimed that on the 12th September 2006 while she was in
the employ of the defendant and as she was carrying out her work as a welder, a
forklift entered the area where she was working, sounded its horn causing her to have
to get up to get out of its way, and in doing so and in order to avoid the forklift she
fell over and sustained injury. She filed that action on the 18th January 2008 well
within the limitation period. On the 7th April 2011 that action was withdrawn in the
following circumstances.
3. At the third case management conference, the docketed judge directed the filing
and exchanging of witness statements on or before 30th July 2009. The claimant’s
attorney filed witness statements on liability. Her failure to file evidence to be relied
upon on the issue of quantum too would have automatically attracted the usual
express sanction under the CPR. The claimant’s attorney later explained that she
thought the issue of liability only was going to be dealt with at trial.
4. At the first CMC after her default, the defendant indicated it intended to file an
application to strike out certain paragraphs of the claimant’s witness statements.
From the record it is unclear whether it was expressly drawn to the attention of the
claimant’s attorney or the Court that the striking out application arose because of the
failure to file witness statements containing admissible medical evidence to support
the alleged injuries and disability. Only much later on at a subsequent hearing, when
the issue was raised directly did the claimant’s attorney file an application for relief
from sanction on the 21st May 2010. This was eventually determined and refused by
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Aboud J on the 5th January 2011. At the same time, the defendant succeeded in the
striking out application.
5.
The matter was then adjourned, it appears, for the claimant to consider her
position in the light of the rulings of Aboud J. At a subsequent status hearing on the
7th April 2011 the claimant was allowed to withdraw the claim with no order as to
costs. This was consented to by the defendant. By that time, the claimant’s attorney
had already filed a new claim form, which was being held pending the ruling of
Aboud J.
6. This had not been disclosed to the defendant’s attorney when the compromise on
costs was agreed. That new claim form was never served or proceeded with. Instead
the claimant sought new counsel who, because of her workload and other
commitments was only able to get around to dealing with the matter some months.
At the date of this application, five months had elapsed since the withdrawal of the
previous proceedings and one year had gone since the expiration of the limitation
period. That five month period of delay is not easily ignored. However, one is not
insensitive to the fact that under CPR counsel’s workload, when it is put forward as a
reason for failure to take a step in time is not something which can be discounted. If
Courts are heavily overloaded, and judges are overworked as they are, then some
allowance has to be made for counsel’s predicament.
7. So too, a lapse of 12 months from the expiration of the period is by no means
negligible, however, I do not think that against the factual background in this case,
that by itself, is so significant as to disentitle the claimant to relief. These two
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periods standing on their own did not contribute to prejudice to either side in this
case.
No prejudice
8. An application of this sort requires the exercise of judicial discretion, which is
said to be “unfettered” but in respect of which guidance is provided in S. 9 (1) (3) of
the Act. Generally, I have considered the issue of prejudice to the claimant if I were
to refuse the application and to the defendant if I were to allow it in all the
circumstances of the case but having particular regard to the six matters set out in
that section. At the end of the day, I find that when sufficient regard is paid to all
factors, it would be inequitable to refuse the claimant’s application, first because the
prejudice that would result if this action is not allowed to proceed would far
outweigh any caused to the defendant if I were to grant it. While this decision is
arrived at after considering all factors in the round, it is perhaps convenient to deal
with them as they are set out under S. 9 (3) insofar as they are individually
applicable.
Impact of Delay on Cogency of the evidence and availability of witness
9. While the length and reasons for the delay are important considerations, they are
not to be looked at in isolation. This is unlike a case where a defendant is prejudiced
because litigation springs out of the blue and without warning after the expiration of
the limitation period. The earlier proceedings had in fact advanced to the stage of the
filing of witness statements. Having regard to that, it is hard to argue that the
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cogency of the evidence of either party is going to be adversely affected if a new
action were allowed to proceed.
10. Quite apart from the availability of witness statements which had been filed in
the earlier action, it has been disclosed that long before the original litigation began,
that is since December 2006, the defendant had conducted its own investigations
shortly after the claimant first reported this alleged accident. The report of that
investigation is still available as is the defendant’s Environmental Health and Safety
Co-ordinator, Mr. Ancil Dick, who prepared it. This report contains statements of
several persons including the claimant and a co-worker who was her witness in the
previous matter, which statements were obtained closer to the time of the alleged
accident and to which due weight would be attached in the event of a fresh trial.
11. I have noted the defendant’s concern that the evidence of Mr. Carl Cave, a
former employee may not be available as he will not be able to attend a trial to give
evidence if a new action is allowed. This concern can easily be addressed by a
hearsay notice. If Mr. Cave is bedridden, it is difficult to contemplate that such a
notice can be opposed. If anything, his unavailability for cross-examination will
cause greater prejudice to the claimant’s case.
Claimant’s actions medical/legal advice
12. The claimant has throughout maintained that as a result of her fall, she suffered
injury which has affected her future employment as a welder. In the earlier action
she produced several medical reports, including one which indicated she suffered a
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fractured coccyx as a result of the fall. She claims her disability continues. She
cannot be accused of failing to act promptly to pursue her action in the light of what
the earlier proceedings disclosed. She can properly be said to have acted in a timely
fashion to obtain medical attention both initially and through follow-up action, and
indeed legal advice.
13. In the light of the medical reports she produced then, I do not think she can be
criticized for attempting to have her claim determined on the merits, even after the
first matter ended the way it did.
I have not failed to consider the defendant’s
criticisms of one of the medical reports, specifically that of Dr. Adams, which failed
to mention a finding of the claimant’s fractured coccyx on first inspection of her xray. But a fresh trial will allow the defendant to challenge all medical evidence that
the claimant might adduce at a trial.
14. If on the other hand, I were to deprive this litigant of the opportunity to recover
damages for what might be serious injury with continuing pain and disadvantage in
the employment market might, this would result in a grave injustice. Outside of the
S. 9 (3) matters in this case I must consider the following as they have been raised by
counsel for the defendant.
Prejudice – Expense/Costs of previous and new action
15. One of the defendant’s arguments was that it was encouraged to forego its
significant costs in the previous action to its prejudice because it was sympathetic to
the defendant’s impecunious position. Had it known that the claimant had already
filed a new action it would have insisted on its costs. I accept that the defendant has
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suffered financial prejudice but since its consent to the withdrawal could have been
made conditional upon an agreement by the claimant to put the matter to rest
conclusively, I do not think this is prejudice which could not have been avoided. A
litigant in the claimant’s position could hardly be expected to be satisfied with the
outcome or to simply let the matter go.
16. The defendant was not misled by then counsel for the claimant on this issue.
I
do not think that her decision to file a holding action to protect her client pending the
decision of Aboud J should attract criticism. At it turns out, that claim form was not
served and the claimant now has new counsel who is starting a new action. Any
prejudice to the defendant arising from irrecoverable costs and expenses arose from
the defendant’s assumption that the action would not resurface and that the
claimant’s impecuniosity was a bar to her refiling. This was unfortunately mistaken.
There are still attorneys who provide pro-bono services, I believe. There was always
the possibility the claimant would find one who would file an application such as
this.
Redress against claimant’s attorney
17. The defendant has also raised the issue of the claimant having a case against her
attorney. The situation here is distinguishable from that which arose in Thompson v
Brown Construction 1981 2 All England Reports. Here, unlike in that case,
counsel’s default does not in my view result in a “cast-iron” case for damages for
negligence. In any case if she were to sue her attorney successfully there is a
possibility that the claimant would only recover damages limited to the lost prospects
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of success which I believe would fall short of what she claims. She would have to
find new counsel to sue another attorney for a CPR non-compliance breach.
18. The exhortation to sue lawyers when something goes wrong in litigation is easily
made, but for litigants it is not so easy to follow through.
In reality in this
jurisdiction there has never been a culture of clients suing lawyers for professional
negligence. In the current environment, where it is so easy to run afoul of procedural
rules which impose sanctions, that culture is less likely to develop. And if it were to
happen, Court resources which are already overburdened would then have to be
allotted additionally to a new class of litigation between lawyers and litigants.
19. This is not to condone gross incompetence and inefficiency or to encourage a
lack of accountability on the part of the profession. It is simply to recognize that this
is not an option that I believe is seriously open to the claimant especially in the
circumstances of this case. The futility of the suggestion given the reality as I
understand it, it is a factor which weighs in the claimant’s favour.
20. By way of general comment I observe that it may be that the time has come
when for the protection of the public, serious consideration ought to be given to the
introduction of mandatory professional indemnity insurance coverage as a condition
of eligibility for attorneys’ practicing certificates especially for those involved in
CPR litigation. It is said that the legal profession is expanding to meet the demand
for more lawyers. This demand, if indeed there is such, is outstripped only by the
need for greater financial protection for litigants who all too often suffer serious
losses and denial of access to substantive justice as a result of errors ranging from
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simple unavoidable human error and inadvertence on one end to ineptitude, and
hopeless incompetence and contumelious breach on the other. If practitioners were
required to have proper insurance coverage in place, litigants would not always walk
away completely dissatisfied and empty-handed. Their confidence in the judicial
system would not be obliterated when cases are thrown out for non-compliance.
21. At the same time, the sufficiency of existing disciplinary processes may need to
be reassessed in the light of the CPR sanctions regime for non-compliance. These
suggestions are not meant to exclude a reminder that while long term solutions need
to be found to protect litigants who are the most vulnerable of the stakeholders in the
system, simple amendments to the CPR would allow judges a wider discretion to do
substantial justice even when lawyers fall short. The clear removal of the threshold
established by Part 26.7 might be a simple starting point.
The defendant is insured
22. To return to the peculiar circumstances of this case, it has been disclosed that
defendant’s losses, if any result from a new action, are covered by a policy of
insurance with Guardian General Insurance Limited. There would therefore be less
direct financial prejudice to the defendant if the matter were allowed to proceed. The
claimant must obviously stand a better chance of recovering if she succeeds in her
claims, from the defendant’s insurers than from her former attorney. I have noted the
defendant’s concerns as to the possible lack of interest of those insurers in actively
participating in any new action. That is surely a matter which is covered under the
terms of their insurance policy.
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Strength of claimant’s case
23. The defendant has asked me to look at the strength of the claimant’s case on the
pleadings in the earlier action. While it is true that the statement of facts could have
been better expressed, I am clear that what the claimant is alleging is that she was in
a stooping position while carrying on her welding work in the defendant’s workshop.
She was alerted somewhat suddenly to the approach of a forklift by the sound of its
horn and persons signalling to her and that in order to remove herself to avoid its
path, she attempted to raise herself, her leg became “tangled” in materials left in the
area and fell in the process hitting her back against a flange.
24. I do not think this is a case which is so weak that it is bound to fail or which has
limited prospects of success. In the circumstances I am not at this stage prepared to
say that on this ground it would be an abuse of the process to allow the matter to
proceed.
Abuse of process to allow refiling after non-compliance ends first action
25. The more compelling argument raised by the defendant’s counsel was that
having regard to the fact that the first proceedings were brought to an end because of
non-compliance with a procedural direction, an attempt to re-litigate the matter
which had to be withdrawn, amounts to an abuse of the process. Counsel cited
several authorities including that of Rampersad J in CV2009-04689 Wendell Steele
v Lennox Petroleum Ltd. I have also had the benefit of the more recent judgment
of Seepersad J in CV2009-0258 Steve Chairman v Samuel Sanders in which he
declined to follow that decision.
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26. I do not understand the authorities cited to decide that the mere fact that a
previous action has been determined as a consequence of procedural compliance
renders the filing of a new action an abuse of process. If this were the case then the
equitable jurisdiction conferred by S. 9 (3) would no longer be “unfettered”.
I
understand them instead to establish that the fact that a previous action had been filed
is a factor for my consideration, along with the reasons for its determination without
a hearing on the merits.
No excessive delay/contumelious conduct
27. In the instant case, the claimant’s first action ended the way it did because
counsel failed to comply with a procedural direction. She did not neglect to comply
entirely, she filed witness statements on liability, not on quantum. She claimed to
believe that liability was to be tried first. What is clear is that this was not a case
involving excessive delay or contumelious conduct in the prosecution of the first
action. It is distinguishable in that sense from Securum Finance Limited v Ashton
& Anor 2001 Ch. (291) and all cases in which the earlier actions were struck out for
excessive delay and abuse of process. This claimant can hardly have been accused of
not prosecuting her action with reasonably dispatch and efficiency.
28. My brother, Aboud J, dealt with the relief from sanctions application which
followed the non-compliance and it is not my intention in any way to criticize his
decision or indeed to detract from its validity. But in considering the defendant’s
submission that to allow a new action to proceed is to encourage an abuse of the
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process, I must of necessity look at the circumstances which led to the default on the
part of the claimant’s counsel and the reasons for the application.
29.
On the date when the sanction for non-compliance kicked in on 31st July 2009
there was no trial date in sight. The next “directions hearing” was almost six months
away listed and for January 21st 2010.
At that appointment Counsel for the
defendant indicated she intended to seek a striking out order in relation to certain
paragraphs of the claimant’s witness statement. From the affidavit evidence and the
Court record it does not appear that the claimants’ failure to file medical evidence
was raised frontally or brought to the attention of the then docketed judge. The
omission and its consequences for the trial were not specifically identified by the
defendant’s attorney in the letter which followed immediately subsequent to that
hearing.
That letter simply indicated the paragraphs of the claimants’ witness
statement to be struck out.
30. It was only on the 15th April, 2010 some four months later at the next case
management appointment when an application was made by Counsel for the claimant
for a trial date, that the matter of the omission to file the critical medical evidence
was raised. It was then that advocate attorney for the claimant indicated that his
understanding from instructing attorney was that only liability was to be decided at
the trial. The defendant’s position was then made clear. I quote from the affidavit of
Ms. Orie in which she related what took place at that hearing she said:
“In response to this, Ms. Hasnain informed the Court
that there was no order or agreement to split the trial
and that to order a split at this stage would enable the
claimant to circumvent the requirement to apply for
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relief from sanction…….. The Court did not proceed to
fix a trial date.” (emphasis mine)
The required application for relief from sanction was filed and more than 8 months
elapsed before it was determined.
31. In an adversarial system the defendant’s position was entirely legitimate. It
nevertheless had the effect of having the Court’s resources applied over what must be
considered an extended period of time to satellite applications during which the
limitation period was running against the claimant. Had such been encouraged by
the system, a different approach by all involved including the claimant and the Court
could possibly have led to a more timely determination of the claimant’s claim on the
merits especially since no trial date had yet been fixed. Instead the gap between the
date when the cause for the relief from sanction application arose and its eventual
determination was widened to almost 19 months. I do not consider that period to
count as “delay” attributable to the claimant for the purposes of this application. I
cannot ignore the fact that with its best efforts which included the energies of my
hard working and efficient colleagues who dealt with the matter, an overburdened
Court system could not do better. Against the background of the Court’s timetable in
dealing with the matter it seems even more inequitable to shut out the claimant for
failing to make the initial deadline.
32. As to the relief from sanction application, I have not seen the reasons of Aboud J
for its refusal and I repeat it is not my role or my intention to review them, but if
indeed the lack of promptitude was one, and I suspect it was, then in considering
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whether the refiling of this claim is an abuse of the process, I believe I am entitled to
take into account the recent decision of the Court of Appeal Civ. App No. 52/12 in
Rawtie Roopnarine, Kumar Roopnarine v. Harripersad Kissoon and Ors at
paragraph 28 which appears to effect a shift in the interpretation of “promptness” in
making the application to include reference to the prejudice to be caused to the trial
date. It does appear that the policy which informed the statement in Trincan Oil Ltd
v Schnake Civ. App No. 91/09 – “prompt must be considered in relation to the date
when the sanction was imposed” has been relaxed to some extent since Aboud J
determined the claimant’s application, and I think she is entitled to the benefit of that
development.
33. Since the claimant’s default occurred at a time when there was no trial date, I do
not think one can say that she lost the time which was allotted to her case by default.
None had been. In other words had she properly filed all her witness statements it
would have made no difference to the court’s resources. The further time consumed
by the satellite litigation could all have been avoided if anyone had simply brought to
the attention of the claimant’s attorney that she had not fully complied with the
direction, that there was no medical evidence to support her claim for injury and
consequential damages, and if none was going to be forthcoming, then the
appropriate application would be made by the defendant.
34. This could quite easily have been done by the Court in the management of the
case. The idea of a prompt from the Court itself is not new. Indeed when the Court
introduction of sanctions was contemplated as a significant feature of Civil
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Proceedings Reform, Dick Greenslade specifically suggested prompts generated
from the Court. His words were –
“In order to make the system more ‘user friendly’ I
propose that the court should send out ‘prompts’ shortly
before each deadline imposed by any direction. This
would remind the attorney of the direction, of the
possible sanctions and ask him to confirm that the
direction had been carried out. I understand that the
Information Technology at present in use in the courts is
able to carry out this function.
35. The introduction of this measure in 2005 would not only have assisted attorneys,
it would have protected litigants in many cases from the devastating consequences of
non-compliance. While the more punitive aspects of Greenslade’s recommendations
were implemented it seems this one was overlooked. But it is not too late. If the
Information Technology to carry out this function was available at the time of
Greenslade’s report in 1998, presumable it is still so. I can only respectfully suggest
that this be looked at with a view to activating a system of prompts from the Court
office.
36. In the case here as is entirely permissible and legitimate under the rules when the
claimant defaulted, the defendant insisted that the consequences of the noncompliance were met.
This approach is a common feature of a regime which
promotes a new kind of windfall for one side when the other makes procedural
missteps, even those which do not necessarily point to gross professional
inefficiency. The “level playing field” that the rules aimed to achieve has as one
Australian commentator put it, in many respects turned into an obstacle course, with
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competitors legitimately insisting on taking the prized default judgment, when their
rivals trip.
37. As to whether this is consistent with the goal of greater access to justice that we
hoped to achieve under CPR is another question. The statements of Seepersad J in
Steve Chairman bear repeating.
Pg. 10 paras. 24 and 25 ….
.
In a developing society such as ours, access to justice has to
be of paramount importance, legitimate and substantial
issues which cannot be resolved amicably by the parties
should be resolved by the court or with its assistance.
The Court should not deflect its responsibility and allow
procedural justice concerns to automatically trump
substantive justice concerns. If procedural non-conformity
is automatically used to justify the dismissal of important
matters and parties are thereafter as a matter of course
shut out from accessing the court, then our citizens would
resort to alternative dispute resolution techniques that do
not involve mediation or arbitration but they will turn to
violet and aggressive methods.
38. Finally, I must indicate that for the purposes of this application most crucially, I
attach greater weight to the explanation that was offered for the non-compliance in
the earlier proceedings. Aboud J would have considered it in the context of his
limited powers under Part 26.7. I am here reconsidering it while exercising an
equitable jurisdiction conferred by the Act which allows me greater latitute.
39. It had to do with the personal and peculiar position of the claimant’s counsel.
She had suffered the loss of her father in December 2008 and more terribly that of
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her husband, an attorney, partner in their small firm, a month later in January 2009.
The claimant’s former attorney indicated the understandable difficulty she had
dealing with things emotionally, physically and professionally after her husband’s
death. She was trying to keep the office going by assuming responsibility for his
matters along with her own workload, and to stave off losses to the firm. She had a
one year old child to whom she was now sole parent and provider.
40. Counsel for the defendant was not satisfied with certain aspects of her
explanations contained in her reasons for the breach and indeed there appeared to be
some measure of inconsistency when they were held up to closer scrutiny. But
whatever the reasons, at the end of the day she missed a deadline less than six
months after these devastating events. She could simply have been cut some slack
given the extenuating circumstances.
Counsel for the defendant with her usual
diligence and tenacity simply sought to defend her client’s interest as the system
permits and as she is required to do.
41. For the purposes of the instant application however and against that background
I find it would simply be unfair and unjust to allow the defendant to reap such a large
benefit from this procedural misstep and on the peculiar facts it would be inequitable
to deprive the claimant of the opportunity to have her claim ventilated on the merits.
Disposition
42. The claimant’s application is granted on condition that a claim form and
statement of case are filed and served on or before 17th August 2012. There shall be
no order as to costs.
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Dated this 26th day of July 2012
CAROL GOBIN
JUDGE
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