Nicole Sylvester v Bernard Punnett

Ms Patina Knights Ms L. John and Ms V. Benjamin for the Applicant/Claimant
Mr Samuel Commissiong for the Respondent/Defendant
2013: April 15; June 25
[1] LANNS, M: By Amended Claim Form and Statement of Claim filed 28th August 2008,
the Claimant Nicole Sylvester instituted proceedings against the Defendant Bernard
Punnett alleging that the Defendant encroached unto her land at Twenty Hole Penniston
by 1,984 square feet. The Claimant further alleges that the Defendant removed soil and
other material from the land thereby changing the landscape of the western boundary from
gently sloping, to a thirty feet cliff face which is very unstable and prone to slippage. The
Claimant also allege that the Defendant had pursued mining operations with little or no
regard to the Claimant’s property, and in so doing, has diminished the value of the
Claimant’s land.
[2] Since the claim had been filed, a number of events have marked the progress of this
matter through the system. These include (1) the determination of several applications;
(save for an amended Notice of Application by the Claimant for summary judgment filed 6th
February 2012;1 (2) adjournments to facilitate the provision of survey and engineering
reports commissioned by the Court; and (3) adjournment to allow for settlement
[3] Eventually, the matter progressed to the stage of the issuance of trial directions on the 26th
February 2013. The Claimant was to call no more than 5 witnesses. The Defendant was
to call no more than 4 witnesses. The parties were to file and exchange witness
statements on or before 21st June 2013; The Pre-Trial review was scheduled for 27th
September 2013; and the trial date was to be listed by the Court Office during 2014.
[4] However, the trial directions seemed to have been effectively overtaken by the Order of
Master Taylor Alexander dated 20th March 2013. In the preamble of the Order, the
Learned Master stated that the summary judgment application would negate the trial
directions issued. It will be convenient to reproduce the order for its full effect.
“UPON this matter coming on for the hearing of an application for summary
judgment which application would negate the trial directions issued;
THE COURT noting that submissions of the defendant remain outstanding;
COUNSEL for the defendant Mr Commissiong is currently off island as a witness
in Ireland and request an adjournment;
THE COURT prepared to deal with the application for summary judgment given
the overwhelming evidence of the court appointed expert;
The application for summary judgment is rescheduled for hearing to the 15th April
[5] By Amended Notice of Application filed on 6th February 2012, the Claimant applies to the
Court for summary judgment on her Amended Claim and Statement of Claim filed 28th
August 2008 in which she sought the following reliefs:
a) Damages spent to date in the sum of $2000.00;
1 First Notice of application for summary judgment was filed on 9th December 2011
b) An injunction restraining the Defendant from mining, excavating and/or
carrying away any earth, soil or minerals from within and under the
Claimant’s land or adjacent to the boundary of the Claimant’s land;
c) An enquiry as to what earth, soil, minerals or stones have been removed
by the Defendant from the land of the Claimant situate at Twenty Hill, Hog
Hole, Penniston, and what has become of them, and any of them, and
any (sic) of them have been sold, what sums have been received in
respect thereof;
d) Payment over of all sums as aforesaid;
e) A mandatory Order that the Defendant cause to be erected and
constructed a wall of sufficient strength to permanently support the
Claimant’s land at her boundary and adjacent to the Defendant’s land;
f) Further damages occasioned by the unlawful mining and withdrawal of
support from the Claimant’s land situate at Twenty Hill, Hog Hole,
g Interest, (h) costs; and (i) such other reliefs as the court deems just.
[6] The main grounds of the application are that (1) the Defendant does not have a realistic
prospect of successfully defending the claim; (2) the Defendant has admitted liability.
[7] The application is supported by the Amended Affidavit of the Claimant sworn to and filed
on 6th February 2012.
[8] The Defendant filed an Affidavit in Reply on 15th February 2012.
[9] The evidence to support the application is set out in the affidavit of the Claimant in support
of the application for summary judgment. The affidavit sets out the chronological history of
the matter. It speaks to the orders of Thom J appointing Mr David Frederick to prepare a
Survey Report and Mr Glenford Stewart to prepare an Engineering Report. It also speaks
to an adjournment for report on settlement. The Claimant states that through their
respective counsel, the parties told the Court that the only bar to settlement was on the
issue of cost per square foot of the land at Hog Hole. The affidavit referred to an
undertaking given to the court to abide by the valuation per square foot by a mutually
agreed Valuator in the person of Mr Christopher Browne, who subsequently submitted a
Valuation Report providing the cost per square foot at EC$400.00. The Claimant deposed
that at all material times, the Defendant admitted liability on the issues, and the only issue
left for determination was the quantum payable to her. She detailed the terms of an out of
court agreement reached voluntarily between the Claimant and the Defendant in the
presence of Mediator Simon Kamara, and she indicated that the Defendant has failed to
pay her any monies. She reiterated that the Defendant has admitted liability and does not
have a real prospect of successfully defending the Claim.
[10] No documents were exhibited to the Claimant’s Affidavit.
[11] In his replying affidavit, the Defendant referred to his pleadings at paragraphs 2, 3, 4, 5, 6,
8, 9 and 12 of the Amended Defence, adding that he pleaded that the Claimant was the
agent of her own problems because she had in the past hired someone to level the hilly
[12] He next referred to Mr Stewart’s Report and went on to state that Mr Stewart did not come
to any conclusion of liability on his part. He stated that the only direct evidence of land
slipping of the Claimant’s land came from Mr Frederick, but if Mr Frederick knew the facts
he may have come to a different conclusion.
[13] He stated that the Court has reached no decision on liability, but he agreed that following
the submission of the Reports, the Court suggested that the parties hold discussions with a
view to settlement of the issues. He deposed that his Counsel has informed him and he
verily believes that when parties are engaged in an effort to settle any matter before the
Court, the parties must never report to the Court any matters tentative to settlement,
unless they have actually arrived at a concluded agreement which will form the substance
of the order to be made to the Court. He deposed that most of what the parties discussed
in the settlement negotiations now appear in the Claimant’s affidavit. He stated that
Counsel has informed him and he verily believes that these matters should never be put
before the Court in the absence of a concluded settlement agreement. He reiterated that
he never actually or impliedly admitted liability.
[14] No documents were exhibited to the Defendant’s affidavit.
[15] The main issue for determination is whether in view of
(a) the issues arising on the pleadings;
(b) the facts in dispute and the undisputed facts shown in the affidavits in support of
and in opposition to the Application
(c) the result of the survey done by Mr David Frederick, commissioned by the Court;
(d) the findings contained in the report submitted by Glenford Stewart of Stewart
Engineering, commissioned by the Court,
the Defendant’s Amended Defence filed on 25th November 2008 has any prospects of
success or ought to be summarily dismissed and judgment entered for the Claimant.
[16] The corollary issues are whether in view of
(a) the issues arising on the pleadings;
(b) the facts in dispute and undisputed facts;
(c) the reports submitted by the Court appointed experts;
the Defendant has pleaded a viable defence in answer to the claim; or has offered any
evidence to prove that the Claimant was the agent of her own problems because she had
in the past hired someone to level the hilly land; or that he has not carried out any mining
operations on the Claimant’s land or that he did not enter into any agreement in settlement
of the claim; or that he did not admit liability.
(d) Ultimately, the question is whether summary judgment should be granted or
whether the matter should proceed to trial for a determination of all the issues
raised in the pleadings with the aid of evidence.
Ms Knights’ submissions
[17] The Claimant’s position is that although the Defendant denies any mining on his lands
which is adjacent to the Claimant’s land, the Report of Stewart Engineering stated that “we
observed that quarry operations have been undertaken on lands of the Pembroke Estate
which lie due southwest of the lands described on the Survey Plan A412”( the Defendant’s
[18] Claimant’s Learned Counsel also referred to the Report of David Frederick wherein he
stated that “marks were missing as a result of some mining (sand) operations done by Mr
Punnet.” Ms Knights went on to state that the parties agreed to be bound by the Reports
ordered by the Court. She pointed to Mr Punnette’s Affidavit of 22nd October 2008 in which
he admitted at paragraph 3 that “other people have been carrying out quarrying operations
in the said location on my land.” As far as Ms Knights is concerned, the “other people”
were Mr Punnette’s servants and/or agents or otherwise.
[19] Counsel also pointed to Mr Punnette’s Affidavit of 21st November 2012 wherein he stated
that the persons carrying on mining operations were independent contractors. Ms Knights
found it noteworthy that the Defendant in his Defence denies any mining on his land but
failed to mention the operations of any third party.
[20] Ms Knights also sought to disclose that the matter came up for report on settlement on 17th
September 2010, and counsel for both parties indicated to the court that the only bar to
settlement was the issue of cost per square foot of the subject land. Ms Knights posited
that that was a formal admission to the Court which could be relied upon in support of an
application for summary judgment.
[21] Ms Knights submits that in light of the admissions, taken together with the Reports of
Stewart Engineering and David Frederick, the Amended Defence has no real prospect of
[22] Ms Knights went on to stress that at the hearing to report on settlement, liability was not an
issue. The only live issue was that of quantum, submitted Counsel. In Counsel’s view, the
Defendant, despite having made admissions, is now seeking to approbate and reprobate.
[23] Ms Knights concluded her submissions by urging the Court to grant summary judgment,
having regard to all the circumstances including the pleadings, experts’ reports,
admissions and the undertaking made to the Court.
Mr Commissiong’s submissions
[24] Mr Commissiong prefaced his submissions with numerous factual allegations which, to my
mind should be included in a witness statement or in an affidavit instead of in the
submissions. For example, Mr Commissiong sought to give a history of the litigation in
which he alleged that the Claimant is the agent of her own injury. He submitted that it was
the Claimant and her agents who disturbed the soil in 1995 and now seeks to pass the
blame onto the Defendant.
[25] Counsel next stated that the Claimant in 1995 employed one, Mr Leon Samuel to level her
land in preparation of a suitable foundation to build a dwelling house. The excavation work
carried out by Mr Samuel disturbed the loose soil and caused it to flow down on both
parties’ lands which are adjacent to each other. He stated that the Claimant abandoned
the attempt to develop a foundation for her house. Counsel had no doubt that Mr Williams
is prepared to testify at trial on this aspect of the case.
[26] Mr Commissiong also prefaced his submissions with the following allegations: Around
2007 building contractors in Buccament discovered that the loose soil was ideal to build
commercial blocks and began to quarry the Defendant’s land to get the loose material.
When the Claimant discovered that the contractors were carrying on the quarrying
operations, she brought the claim to stop them, claiming damages and an injunction to
prevent further quarrying.
[27] As regards the Application for Summary Judgment, Mr Commissiong submitted that the
claim is not suitable for summary judgment because the Defendant pleads that the
Claimant has no cause of action since she is the agent of her own wrong doing. Counsel
described the application for summary judgment as “most daring” in light of the history of
the proceedings.
[28] Mr Commissiong submitted that the Court must at least pause to hear the evidence of
Leon Samuel, Clifford Williams, Bernard Punnett and Glenville Stewart of Stewart
Engineering. Counsel was of the view that the Court must look at paragraphs 2, 3, 4, 5, 6,
8, 9 and 12 of the Defence before dealing with the application for summary judgment.
Contrary to counsel’s submission, there is no paragraph 9 and 12 in the Amended
Defence. Those paragraphs were deleted in the Amended Defence and no amendments
were made in respect of them.
[29] Counsel stated that there are two conflicting stories before the Court, as set out in the
Statement of Claim and the Statement of Defence. He pointed to the Reply to the Defence
and went on to submit that the only response to the Defence is a bare denial. Counsel
further submitted that the Claimant’s grounds to strike out the Defence do not meet the test
stipulated by the Court of Appeal in the case of Spencer v the Attorney General of
Antigua and Barbuda.
[30] Mr Commissiong pointed out that the Claimant in her second application for summary
judgment seeks to take a second bite at the cherry by stating that the defendant agreed to
settle the case in the presence and hearing of one Simon Kamara, Mediator on the Court’s
List of mediators. He referred to paragraph 5 of the Affidavit of the Claimant filed 6th
February 2012 which details the Order of the Court made on 12th December 2008
appointing Mr Frederick to carry our a survey of the subject lands, and directing Mr Stewart
to submit his report by a specific date. He stated that the statement there is true and
correct. Counsel admitted that the parties had agreed to enter into discussions with a view
to settlement but were unable to reach settlement in the terms suggested by the Claimant.
Further, the attempt at settlement was compromised when the Claimant introduced Simon
Kamara into the discussions, submitted Counsel. Claimant’s counsel replied.
Ms Knights’ Reply
[31] In her replying submissions, Ms Knights indicated that Mr Commissiong has introduced
issues and reports that are not before the Court. She submitted that the only reports
before the Court are the Reports of Keith Francis dated 15th July 2008; (b) the Report of
David Frederick filed 5th February 2009; (c) the Report of Stewart Engineering filed 18th
May 2009; and the Report of Chris Browne dated 29th September 2010. As far as counsel
was concerned, there is no report of Clifford Williams before the Court.
[32] Ms Knights denied the allegation made by Mr Commissiong to the effect that the Claimant
introduced Mr Kamara in the settlement discussions unknown to him, and she went on to
explain that it was the Defendant who approached Mr Kamara seeking his intervention. I
will now address the principles which govern applications for summary judgment.
[33] CPR 15.2 (a) provides that the Court may give summary judgment on the Claim or issue or
on a particular issue if it considers that the Claimant has no real prospect of succeeding on
the claim or issue.
[34] The prospect of success must be real as opposed to being fanciful. The case of Saint
Lucia Motor and General Insurance Company Limited v Modest2 is sound authority for
this principle. In that case, Her Ladyship, Madame Justice of Appeal Janice George
Creque (as she then was) referred to the cases of Baldwin Spencer v The Attorney
General of Antigua and Barbuda, the Attorney General of Antigua and Barbuda v
Antigua Aggregates Limited et al, Swain v Hillman and the text Blackstone’s Civil
Practice, and went on to state, among other things, at paragraph [21] that:
“[21] … The principles distilled from these authorities by which a court must be guided
may be stated thus: Summary judgment should only be granted in cases where it is clear
that a claim on its face obviously cannot be sustained, or in some other way is an abuse of
the process of the court. What must be shown in the words of Lord Woolf in Swain v
Hillman is that the claim or the defence has no ‘real’ (i.e. realistic as opposed to fanciful)
prospect of success. It is not required that a substantial prospect of success be shown.
Nor does it mean that the claim or defence is bound to fail at trial. … The court is not
tasked with adopting a sterile approach but rather to consider the matter in the context of
the pleadings and such evidence as there is before it, and on that basis to determine
whether, the claim or the defence has a real prospect of success. If at the end of the
2 High Court Civil Appeal 2009/008, Saint Lucia
exercise the court arrives at the view that it would be difficult to see how the claimant or
the defendant could establish its case, then it is open to the court to enter summary
[35] The approach of the court is also stated in the BVI case of Bank of Bermuda Limited v
Pentium3 wherein Saunders CJ [Ag] observed at paragraph [18]:
“A judge should not allow a matter to proceed to trial where the defendant has produced
nothing to persuade the court that there is a realistic prospect that the defendant will
succeed in defeating the claim brought by the claimant. In response to an application for
summary judgment, a defendant is not entitled, without more, merely to say that in the
course of time something might turn up that would render the claimant’s case untenable.
To proceed in that vein is to invite speculation and does not demonstrate a real prospect
of successfully defending the claim. …”
[36] The Claimant contends both in her amended Affidavit and in the submissions that the
Defendant has no realistic prospect of successfully defending the claim brought against
him in that the defendant has admitted liability; and they both had arrived at an out of court
settlement on 10th June 2011. The Claimant says the Defendant agreed to pay her on or
before the 24th June 2011, the sum of $44,000.00 in full and final settlement of the Claim.
The Defendant agrees that there were settlement discussions but says that he never
accepted liability.
[37] Clearly, the Claimant is relying on the purported admission of liability, the settlement said
to be reached between the parties; the reports of Keith Francis, David Frederick, Glenford
Stewart and Chris Browne.
Admissions by the Defendant
[38] Looking at the Defence, I note that the Defendant in his Amended Defence only admitted
paragraphs one and two of the Statement of Claim relating to the identity of the parties.
[39] The Claimant in her affidavit and in her submissions claims that at all material times the
Defendant admitted liability. The Defendant in his affidavit in reply refutes that he has
3 BVI Civil Appeal No 14 of 2003
accepted liability. He countered that the Court has reached no decision on the issue of
liability but rather, the Court suggested that the parties hold settlement discussions of the
issues – a suggestion which he accepted with no taint of liability. He stressed that he
“never actually or implicitly admitted liability for any damage to the Claimant’s land”.
[40] CPR 14.1 provides the procedure for making an admission: “A party may admit the truth
of the whole or part of any other party’s case. A party may do this by giving notice in
writing (such as in a statement of case or by letter) before or after the issue of
[41] There is nothing in the Defence indicating an admission of liability. Nor is there any letter
or any documentary evidence suggesting an admission of liability. Apart from her mere
say so, there is no evidence before me to suggest that the Claimant accepted liability.
That ground of application therefore fails.
[42] As regards the purported agreement reached between the parties, there is no dispute that
the matter was adjourned to facilitate settlement discussions. Nor is there any dispute that
settlement discussions took place. By his own admission, the Defendant acknowledges
that the parties held settlement discussions. This is borne out in his affidavit in reply in
which he laments the presence in the Claimant’s Amended Affidavit (filed 6th February
2012) of most of what was discussed in the settlement negotiations.
[43] It is arguable that if the Defendant was so confident that he had a viable defence, why did
he bother to negotiate an agreement in the terms suggested by the Claimant in her
Affidavit?. He has not denied that he came to such an agreement with the Claimant. In
these circumstances, it appears to me that the Claim has been compromised by the
agreement purportedly reached in the settlement negotiations. But it is arguable that to be
effective, the Agreement should have been reduced to writing, e.g. a Release reflecting a
discharge from the Action, and showing the consideration in respect of the Agreement).
[44] I am therefore not inclined to grant summary judgment based on the purported agreement.
That ground fails.
Denials by the Defendant
[45] The Defendant’s Amended Defence raises a number of defences:
(a) The survey purportedly done by Mr Keith Francis was in relation to
excavations of land owned partly by the Claimant and partly by the
Defendant. The excavation was done at the instance of the Claimant;
(b) Mr Francis’ Report made no reference to Survey Plan A433 prepared by
Mr Clifford Williams who had previously surveyed the Claimant’s land;
(c) A denial of any encroachment on the Claimant’s land; either by himself or
any of his agents;
(d) A denial that he or anyone acting on his behalf removed any survey
boundary marks from the Claimant’s land;
(e) A denial that the Defendant encroached on 1,984 square ft, and removed
soil and other material from the land;
(f) An averment that the markings and the alleged encroachment on 1,984
square ft of land were all made when the claimant was trying to develop
house foundations by excavating her hilly lands;
(g) A denial of the allegation that the Claimant’s mining operations has
resulted in a diminution in value of the Claimant’s land;
(h) A denial that the Claimant is entitled to any of the reliefs she seeks;
(i) A denial that the Defendant carried on any activity on his land that
changed the Claimant’s land in any way.
The Reports
[46] Ms Knights in her submissions placed heavy reliance on the reports of Mr Frederick and
Mr Stewart quoting from specific passages of those reports.
[47] Mr Commissiong on the other hand took me on a tour of four reports, which he said were
conducted on the issue of causation, namely; the report of Keith Francis dated 15th July
2008, commissioned by the Claimant; (2) the report of Clifford Williams, Licensed Land
Surveyor dated 17th October 2008, commissioned by the Defendant; (3) the report of David
Frederick dated 5th February 2009, commissioned by the Court; and (4) the report of
Gilbert Stewart, Structural Engineer dated 8th May 2009 commissioned by the Court.
Counsel obviously was not happy with the Report submitted by Mr Frederick and Mr
Francis. He described their Reports as ‘partisan’. As regards Mr Stewart’s Report, Mr
Commissiong was of the view that it was an objective report in that it did not apportion
blame on anyone.
[48] For the purposes of this application, I am content to restrict my comments to the Reports of
Mr David Frederick and Mr Glen Stewart only, as these Reports were commissioned by the
[49] I make the observation that the Reports do not conform to CPR 32.14 which specifies
certain things that must be contained in an expert witness’ report.; in particular 32.14 (2)
and (3). There is no need to dwell on this irregularity as no issue has been raised
regarding it.
[50] Mr Frederick began his report by referring to the Court Order: “To conduct a survey of the
property of the Claimant and Defendant situated at Hog Hole to determine the boundaries
between the two properties.” Under subheading ‘Information gathered’ Mr Frederick
detailed the measurement of the land conveyed to the Claimant. He continued that Plan
A412 shows the original survey done by Surveyor M. Robertson in February – March
He stated that Surveyor Keith Francis had occasion to survey a portion of A412 – that
portion of the boundary separating Ms N. Sylvester and Mr B Punnett. He continued “My
understanding is that Mr Francis reported that all marks on A412 except B 5, B6 and B7
were found. These marks were missing as a result of some (sand) mining operations done
by Mr Punnett. Mr Francis replaced the missing marks to conform to their original
positions – to agree with A412. These marks that he found checked out well. He also
reported that he made a determination of the extent of some encroachment on A412 as a
result of the mining operation.” Under the sub-heading “Procedure” Mr Frederick detailed
the procedure he adopted. He got two copies of Plan A412 from surveys Department. He
had arranged to go on site with Mr Francis on Sunday 1st February 2009. He went to the
site instead on 29th January 2009 with Mr Robertson and one of his workmen on 29th
January 2009. They did some survey measurements and found that the replacement
boundary put by Mr Francis checked well with the original plan A412 done by Mr
[51] Mr Glenford Stewart, a Structural Engineer, commenced his report by stating “We have
conducted a technical survey of the quarry site situated at Hog Hole, Penniston.” He
reported that the quarry site is situated on the southern slopes of a hill close to its crest. It
is an elevation of 450 feet to 520 feet above mean sea level. He stated that “We have
observed that quarry operations have been undertaken on lands of the Pembroke Estate
which lie due south west of lands described on Survey Plan A412. Mining operations
consisted of (i) the removal of vegetation (forest); (ii) the excavation and overburden soil
10 ft to 18 ft thick; (iii) the extraction of natural deposits of sand and gravel which lie
beneath the forest and over burden soil. The mining operations are such that they could
have been undertaken with the use of heavy equipment such as a bulldozer, backhoe or
excavator. We consider that no explosive blasting was necessary, and from our
investigations none was reportedly used. We observed that the northern limits of the
excavation works for the quarry operations lie approximately 20 feet from the southwestern
boundary of the lands of Survey Plan A412.”
Mr Stewart advised that no further excavation works be undertaken at the northern
boundary of the quarry site because the natural process of erosion may ultimately affect
the adjacent lands of Survey Plan A 412. He opined that the mining of sand and gravel
may continue at the quarry site at an appropriate or measured distance from its northern
boundary provided that (i) the ultimate slope of the quarry face dos not exceed 12 degrees;
(ii) Quarry reinstatement works consisting of the spreading of top soil, the planting of
grass, shrubs and trees on abandoned areas, be undertaken as the mining operations
progress southwards.
[52] It does not appear that Mr Stewart or Mr Frederick received any written clarifying questions
on their Reports. Apart from the Court Order, no instructions from the parties were
[53] I am of the opinion that, prima facie, the documentary evidence (the Reports of Mr
Frederick and Mr Stewart) destroys the Claimant’s Defence that no mining operations were
carried out on his land, and that neither the Claimant nor his agents encroached on the
Claimant’s land.
[54] However, the Engineer and Surveyor are not advocates. And their reports cannot
substitute trial by the judge. Their Reports are for the assistance of the judge at trial. In
my judgment, it is reasonable for the Defendant to be allowed to cross examine the
Experts on their Reports if he so desires. It will be open to judge at trial to give credence
to the finding in the Reports having heard all the evidence including that solicited at cross
examination. This may however be subject to whether the Defendant did undertake to be
bound by the Reports of the Court appointed experts. I believe Justice Thom is best
placed to make that determination since the Learned Judge made the orders appointing
the experts. This Court has no transcript of the proceedings before the Learned Judge.
[55] The Court finds that there is merit in Mr Commissiong’s contention that the application for
summary judgment is premature as the Court must hear the evidence of Mr Stewart as
well as Mr Francis cross examination. I believe their reports ought to be regarded as their
evidence in chief and that they should be presented at trial to put their reports in evidence
and be tendered for possible cross examination.
[56] However, it is clear that the Defendant is looking to call witnesses to bolster his case that
the alleged encroachment relate to, and is as a result of excavations carried out at the
instance of the Claimant since the year 1995 to carve out an house foundation partly on
the Claimant’s land and partly on the Defendant’s land. I am of the opinion that
notwithstanding the Reports commissioned by the Court, the Defendant should be afforded
that opportunity if he so wishes.
[57] The Court is aware of, and fully recognize the learning and guidance of our Court of
Appeal in the case of Lynnette Stewart and Lynnette Stewart (Administrator of the
Estate of Anthony Stewart, Deceased) v the Attorney General4 wherein the Hon
George-Creque, JA (as she then was) explained the significance of continuing to defend,
and the corroborative relevance of the further expert’s report. However, I think the facts
there are not on all fours with the facts of this case. There, the Defendant was seeking to
call another expert merely to corroborate the jointly appointed expert. The court took the
view that that takes the matter no further in respect of the assistance the Court can derive
therefrom. The critical passages in my view are paragraphs 5, 6 and 8:
“[5] As the appellants submit a defendant has a right to defend. As to whether or
not that defence is successful at trial is a matter for the Trial Judge. The fact that a
defendant persists in defending in the absence of what a appears to be insufficient
grounds for so doing, is not a good ground for seeking to rely upon a different
expert, when an expert has already been jointly appointed and has provided a
report. To allow another expert to be called in these circumstances merely as a
bolster to the jointly appointed expert does not serve the purpose of CPR, in
keeping with the overriding objective, nor does it fulfill the end for which the
evidence of an expert is intended, i.e. to assist the Court. The focus is not to be
on quantity but on quality. The appellants do not say that they are in anyway
dissatisfied with the jointly appointed expert. Indeed, the appellants rely on the
said expert in support of their case.”
“[6] Having another expert merely by way of corroborating the jointly appointed
expert in my view takes the matter no further, in respect of the assistance the
Court can derive therefrom, and certainly, allowing a further expert does not
thereby restrict, or prevent the respondent from pursuing its defence.”
“[8] The addition of a further expert in the face of having a joint expert, merely it
appears , for the purpose of corroborating the joint expert, is an unnecessary
expense since it takes the matter no further in assisting the court in respect of the
issue to be resolved.”
4 Grenada High Court Civil Appeal No 006 of 2008
[58] The decision in that case must be taken to be correct on its peculiar facts, and the Court
respectfully accepts that decision. However, Lynnette Stewart’s case may be
distinguished in that the purpose for which the Defendant in that case wished to call expert
witness was different. Additionally, the Defendant in Lynnette Stewart’s case expressed
no dissatisfaction with the report of the joint expert. In the instant case, while he has not
expressed any dissatisfaction with Mr Stewart’s Report, the Defendant is not happy with
the Report of Mr Frederick and wishes to cross examine him on it. In these circumstances,
I think the correct approach is not to accede to the Claimant’s application and to allow the
matter to proceed to trial.
[59] There remains the issue of causation raised in the Defence, which the Claimant has not
addressed in her Amended Affidavit in support of her application for summary judgment.
In the Defence, and in his submissions, the Defendant has placed much emphasis on the
issue of causation, alleging that it was the Claimant who caused the problem of which she
has complained. As to whether or not that is a viable answer to the Claimant’s case, is a
matter for the trial judge with the aid of evidence, which also suggests that this matter may
not be suitable for summary judgment and should proceed to trial for a determination of
that issue as well.
[60] In the case of Alpha Telecom Turkey Limited, v Cucorova Finance International
Limited et al, BVI Civil appeal 2009/001, Gordon JA delivering the decision of the Court
of Appeal stated at paragraph 20:
“… if the pleaded case of the parties indicates that there is a factual issue to be
tried, which if proved, in favour of the respondent to the application might result in
a decision in the latter’s favour, then the preemptive power [summary judgment] of
the of the court should not be used”
[61] In dismissing the appeal against the learned trial judge’s refusal to grant summary
judgment, Gordon JA upheld the trial judge’s conclusion that there were “many conflicting
facts and in depth issues to be dealt with in this matter.”
[62] Likewise, I am of the considered opinion that there are conflicting facts and in-depth issues
to be dealt with in this matter.
[63] I have come to the conclusion that despite the Reports commissioned by the Court, and
despite the agreement allegedly reached between the parties, the case is not a suitable
one for summary judgment. The Court is of the opinion, that there are conflicting facts and
in-depth issues to be dealt with in this matter. I think the matter should proceed speedily to
trial for a determination of the issues raised in the pleadings.
[64] In all the circumstances, and on the totality of the evidence, I dismiss the application for
summary judgment and remit the matter to the court office to be set down for further case
[65] The Defendant is entitled to costs incurred for responding to the application.
[66] The Court is grateful to counsel for their helpful submissions.
The Order
[1] The Application by the Claimant for summary judgment is refused.
[2] The matter is to be set down for further case management during the next
sitting of the Master unless a consent order is sooner filed.
[3] The Claimant do pay to the Defendant costs of the summary judgment
application to be assessed if not otherwise agreed within 21 days of
today’s date.