Kyle David v The AG of Dominica et al
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
COMMONWEALTH OF DOMINICA
(Interlocutory Appeal Pursuant to CPR 62.10)
 ATTORNEY GENERAL OF THE COMMONWEALTH OF
 OSCAR GEORGE
 JOSIAH CORNELIUS
 EGBERT CHARLES
The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]
On written submissions:
Ms. Gina Dyer Munro or Dyer & Dyer for the Appellant
Ms. Tameka Hyacinth for the Respondents
2014: January 21.
Interlocutory appeal – Case management order for filing and serving witness
statements – CPR 29.11(1) – Witness statements not filed and served in time –
Application for extension of time – No application for relief from sanctions –
Consequence of failure to apply for relief from sanctions
 MITCHELL, JA [AG.]: The Master case managed this case in the High Court.
She gave directions for the filing and serving of witness statements by the parties
by 7th September 2012. She fixed the trial date for 21st January 2013. The
appellant was the claimant in the court below, and the respondents the
defendants. The appellant did not file and serve any witness statements in the
prescribed time, but only did so on 10th January 2013, a few days before the trial
date. The respondents filed their witness statement in a sealed envelope within
the prescribed time but did not serve them. On 10th January 2013, the
respondents applied to strike out the statement of claim. The appellant filed an
application for an extension of time and for the witness statements to be deemed
properly filed and served. There were numerous affidavits in support and in
 The applications to strike out and for an extension of time came before the learned
trial judge on the morning of the day fixed for the commencement of the trial. The
judge heard argument and considered the applications and the evidence in
support and in opposition, and ruled that the claim would be struck out for failure to
serve the witness statements in time and for failure to make an application for
relief from sanctions. The appellant obtained leave to appeal the strike out order
and on 16th May 2013 filed his notice of appeal. The appellant has additionally
sought to add a further ground of appeal, which I grant. This ground is to the
effect that at the pre-trial review counsel for the defendants indicated that her
instructions were to proceed to trial with the matter, and that by implication she
would not apply to strike out the claim. Counsel did eventually, however, apply to
strike out the claim, and the judge ruled on that application. The appeal has come
before me for determination as a single judge of the Court of Appeal pursuant to
 The striking out of a statement of claim has been described as a draconian step.1
No judge engages lightly in taking such a step which will deprive a claimant of his
day in court. That is especially so where, as in this case, there was a tight
timetable for filing a claim under the Public Authorities Protection Act,2 and
there is now no possibility of re-filing the claim.
 It is important for litigants filing appeals to remind themselves of the Rules and the
Practice Directions governing appeals to the Court of Appeal. In particular, the
Notice of Appeal in this case does not comply with the requirements of CPR 62.10
in that it does not in its heading state that the appeal is an interlocutory one. This
is an important requirement because it guides the staff at the Court of Appeal
office in their further treatment of the appeal, avoiding delay. Nor were there any
submissions in support of the appeal filed and served with the Notice of Appeal on
16th May 2013 as the rule requires. They were not filed until 28th October 2013.
 In any event, the law, the rules and the principles governing an appeal of this
nature are not susceptible to any doubt. They have been exhaustively set out by
Ola Mae Edwards JA in her judgment in the case from St Kitts and Nevis of David
Goldgar and others v Wycliffe H Baird.3 This Court will not interfere with the
learned trial judge’s case management order, unless he is clearly wrong, has
misdirected himself in law, has failed to take into account some material matter
which he ought to have taken into account, or has taken into account a matter
which he ought to have excluded, thereby exceeding the generous ambit within
which reasonable disagreement is possible.4 There is no suggestion that the
judge was wrong in the order he made in the instant case.
1 Ian Peters v Robert George Spencer ANUHCVAP2009/0016 (delivered 22nd December 2009 per
2 Cap 7.60 of the Laws of Dominica.
4 At paragraph  of her judgment.
 The words of CPR 29.11(1) on the consequences of a failure to file witness
statements in the prescribed time are clear, precise and unambiguous.5 The result
is that the witnesses may not be called unless the court permits it. The court did
not permit it here. CPR 29.11(1) provides that the sanction of not being able to
call the witness at the trial comes into effect immediately upon the expiration of the
time limit, and continues until it is either lifted pursuant to CPR 26.8 which deals
with relief from sanctions,6 or is revoked at the trial where the Court gives
permission. The time limit in this case expired on 8th September 2012. The
appellant made no application for relief from sanctions. An application for an
extension of time simpliciter is not an application for relief from sanctions.
Extensions of time are dealt with by CPR 27.8 which deals with the variation of the
case management timetable7.
5 Consequence of failure to file witness statement
29.11(1) If a witness statement or witness summary is not served in respect of an intended
witness within the time specified by the court, the witness may not be called unless the court
6 Relief from sanctions
26.8(1) An application for relief from any sanction imposed for a failure to comply with any rule,
order or direction must be –
(a) made promptly; and
(b) supported by evidence on affidavit.
(2) 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 failure; and
(c) the party in default has generally complied with all other relevant rules, practice
directions, orders and directions.
(3) . . .
(4) . . .
7 Variation of case management timetable
27.8 (1) A party must apply to the court if that party wishes to vary a date which the court has fixed
(a) a case management conference;
(b) a party to do something where the order specifies the consequences of failure to
(c) a pre-trial review;
(d) the return of a listing questionnaire; or
(e) the trial date or trial period.
(2)Any date set by the court or these rules for doing any act may not be varied by the parties if the
variation would make it necessary to vary any of the dates mentioned in paragraph (1).
(3) A party seeking to vary any other date in the timetable without the agreement of the other
parties must apply to the court, and the general rule is that the party must do so before that
(4) A party who applies after that date must apply for –
 CPR 29.11, as Justice Edwards puts it,8 is in very clear and imperative terms. It
does not permit a tortuous construction in order to accommodate a non-compliant
claimant or defendant. Indeed, the court is not able to give effect to what it may
otherwise consider to be the just way of dealing with the case. It is to be
remembered that the principal mischief which the Civil Procedure Rules were
intended to counter were excessive costs and delays.
 For all these reasons, the appeal is dismissed. In the circumstances, I shall not
make any order as to costs.
Justice of Appeal [Ag.]
(a) an extension of time; and
(b) relief from any sanction to which the party has become subject under these Rules or any
(5) The parties may agree to vary a date in the timetable other than one mentioned in paragraph
(1) or (2).
(6) . . .
8 At paragraph .