SAINT CHRISTOPHER AND NEVIS
IN THE COURT OF APPEAL
CIVIL APPEAL NO.24 OF 2003
BETWEEN:
ST. KITTS DEVELOPMENT LIMITED
Appellant
and
GOLFVIEW DEVELOPMENT LIMITED
MICHAEL SIMANIC
Respondents
Appearances:
Case considered on written submissions
2003: October 30.
JUDGMENT
ALLEYNE, J.A.: This appeal arises from a decision of Baptiste J on an
oral application made without notice at the commencement of the trial
whereby it was ordered among other things that the witness statement of
one Alvin Shidlowski and 10 documents relating thereto, which had been
filed by the Appellant/Claimant in the Couri üeiow be struck. out,
and that ihe Appeilant pay costs in the amount of $7,500.00.
The appeal was assigned to me for hearing as a procedural appeal under
Part 62.10 by the Chief Justice.
Learned Counsel for the Respondents in his written submissions has
drawn the Court’s attention to section 31 and (g) of the Eastern
Caribbean Supreme Court Act No. 17 of 1975 which provides that no
appeal shall lie without the leave of the Judge making the order or of
the Court of Appeal from an order as to costs or from any interlocutory
order (with certain exceptions not relevant in this case)
given or made by a Judge. The order appealed from is such an order. The
order
from which the Appellant seeks to appeal is, not only an order as to
costs, but
also, in respect of the exclusion of the witness statement and related
documents,
clearly an interlocutory order; White v Brunton l; Water and
Sewerage Authority
v Lilian Waithe
[1]
.
In White v Brunton Sir John Donaldson, M.R. declared that the Court is
now
committed to the ‘application approach’ to the question of whether an
order is
interlocutory or final, as the general rule. His Lordship applied the
rule in these
terms:
“The decisive feature is that the ‘preliminary issue’ was not, when
analysed, an issue preliminary to a final hearing, but the first part
of a final
hearing.”
<
<
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In Water and Sewerage Authority v Lillian Waithe Phillips C.J. (Ag.)
approved
the decision in Salaman v Warnwer & Ors. 3 and quoted with
approval the
judgment of Lopes, L.J.:
the
rules, when, whichever way it went, it would finally determine the
rights of the parties.”
The learned Chief Justice continued:
“It seems to us that the critical point in determining that an order
final for
this purpose, is that it must appear that whichever way it went, in
other
words, whatever was the decision of the Judge in Chambers in this
application, it would have the effect of determining the rights of the
parties.”
Part 62.2 of the Civil Procedure Rules 2000 (CPR) sets out the
procedure to be
followed in applying for leave to appeal. The Appellant has not
complied with the
rules there set out, and has neither applied for nor obtained leave to
appeal. The time for doing so has long passed.
<p
The trial arose upon a claim by the Appellant for enforcement of a
contract of sale involving in excess of US$700,000.00. On November 26th
2002, a case management order was made, including an order for witness
statements to be filed and served on or before February 7th
2003. A trial window was fixed for the first half of April 2003. The
Respondents failed to file their list of documents in
compliance with the timelines set by the case management order, but
filed them a
month later than the stipulated date. This resulted in a further case
management conference at which, among other things, the time for filing
and service of witness
statements was extended to 28th February 2003. The Case
Management Judge further ordered that ‘Pleadings of any party in
default to be struck out and judgment entered accordingly.’ The trial
date was set for 29th April, 2003, and all previous
directions were preserved by the order.
The Appellant filed a Notice of Application seeking, among other
things, an order that witness statements be filed and served on or
before 14th March, 2003, and a further, amended application
seeking an order for the filing and service of witness statements on or
before 16th April 2003, and further, that ‘Pleadings of any
party in default to be struck out and judgment entered accordingly.’
This application was heard by Baptiste J who ordered that the trial
date be set for July 28, 29 and 30,
- He made no specific order on the application to vary the order for
filing the witness statements on or before 28th February.
Nevertheless, without
made further application or obtaining an order, the Appellant filed and
served a
witness statement of Alvin Shidlowski on June 25th 2003, and the parties
exchanged statements on June 30th, 2003.
On 16th July Counsel for the Appellant wrote to Counsel for the Respondents
expressing his belief that all filings had been completed and requesting
that he be contacted if there were any pre-trial issues which could be
addressed and
hopefully resolved. There was no response to this communication. At the
commencement of trial Counsel for the Respondents made an oral application
<p
without notice to strike out the Appellant’s statement of claim on the
ground that
the witness statement of Alvin Shidlowski and the documents relating
thereto were filed in breach of the case management order made by Mitchell
J on February 14th 2003.
There is no written Judgment or Reasons for Decision. However, the learned
Judge has provided a copy of his notes from which it is apparent that his
attention was focused on CPR Part 26.4, and in particular on Part 26.4(7),
on Part 26.9, and also on Part 1.2. Part 1.2 directs that the Court must
seek to give effect to the overriding objective when it exercises any
discretion given to it by the Rules, or interprets any rule. The overriding
objective is to enable the Court to deal with cases justly.
Part 26.4(1) provides that if a party has failed to comply with any of the
rules or any Court order in respect of which no sanction for non-compliance
has been imposed, any other party may apply to the Court for an “unless
order”. Paragraph
(7) of the rule provides that if the defaulting party fails to comply with
the terms of such an order, that party’s statement of case shall be struck
out. The learned Judge refrained from striking out the Appellant’s
statement of case as Counsel for the Respondent had asked him to do.
Nevertheless Counsel for the Appellant
invites the Court to conclude that the learned Judqe træted the order
of Mitchell J
as an “unless order’. I cannot draw any such conclusion. The learned Judge
did
not impose the mandatory sanction provided by rule 26.4(7) for failure to
comply
with the terms of an “unless order’.
Part 26.9, to which Counsel for the Respondent referred in making his
application
before the Judge, applies, as Counsel pointed out, only where the
consequence of
failure to comply with a rule, practice direction, Court order or direction
has not
been specified by any rule, practice direction or Court order. The order
made by
Mitchell J on February 14, on which Counsel for the Respondent relied at
trial, was
not made pursuant to the procedure laid down by rule 26.4(2) – (6), and
therefore
was clearly not an “unless order” within the meaning of rule 26.4, and not
treated as such by the trial Judge. It did, however, make provision for the
consequences of failure to comply with the order. The purpose of such an
order is not to punish litigants or their Attorneys, but to ensure the
efficient and just disposition of matters before the Court.
Rule 26.7(2) provides for a party in default to apply for relief from
sanctions, which the Appellant did by his notice of application filed on
March 7th 2003. This application was heard by Baptiste J on March 21st
2003, but the application for relief from sanctions does not appear to have
been addressed in the order. It is not clear whether this was an oversight.
However the Appellant does not appear to have pursued this application and
obtained relief, and therefore on the face of it the order of February 14 th would have effect as provided by the said rule.
Notwithstanding that, the Appellant proceeded to file and serve his witness
statement without having obtained an order for relief from sanctions, the
Respondent took no objection even when approached in writing shortly before
the trial date to address and resolve any pre-trial issues, but raised the
matter without notice at the trial.
It seems to me that, the application for relief from sanctions filed on
March 7th having not yet been disposed cf was still a live issue
which the Appellant was free to pursue even at that point in the trial when
Counsel for the Respondent sought an order striking out his statement of
case, particularly in the face of his having sought to resolve any
pre-trial issues with the Respondent in advance of the trial.
Notwithstanding that the filing and service of the witness statement of
Alvin Shidlowski out of time without an order for relief from sanctions was
therefore irregular, nevertheless the Respondent had ample notice of it,
was not taken by surprise, could and should have raised the issue ahead of
the date of trial, but sought instead to take advantage of a technical
breach, a reversion to the technique of trial by ambush which the CPR seeks
to discourage.
By failing to respond to the Appellant’s letter concerning settlement of
pre-trial
issues, or to raise the issue of irregularity in filing the witness
statement without an
order of the Court prior to the date of trial notwithstanding the
Appellant’s
Attorney’s invitation to resolve any outstanding pre-trial issues, the
Respondent
may be taken to have waived the irregularity and lulled the Appellant’s
Attorney
into acting on that basis. The Respondent should not be allowed to benefit
from
this behaviour.
It seems to me that the trial Judge ought to have considered the
Appellant’s
application for relief from sanctions pursuant to Rule 26.7, which had been
filed on
March 7th , when considering the Respondent’s application to
strike out the
Appellant’s statement of case. This he evidently did not do.
It is the duty of the Court in exercising any discretion or applying any
rule to seek
to give effect to the overriding objective of the Rules, which is not, as
Counsel for
the Respondent has urged, to comply with the Rules, but rather to deal with
cases
justly. Applying that principle as stated in rules 1.1 and 1.2, I would
order, as I
now do, that the irregularity in filing the witness statement and related
documents
on the part of the Appellant be deemed to have been waived by the
Respondent,
and tha
t
the witness statement and related documents be admitted and t
h
e
Appellant be permitted to call that witness to give evidence at the trial.
[ 1 91 The trial Judge made an order for costs, but has not
indicated on what principles
he based the order, or how he quantified the costs. The order was made in
the
course of the trial, and would not of itself have added more than
marginally, if at
all, to the cost of the litigation, and I can think of no justification for
making a
separate order for costs on that issue in the circumstances. In any event,
given
the order which I have made in this matter, the order for costs made by the
learned trial Judge cannot stand.
[20] In the circumstances the Judge’s order for costs is set aside, and the
Respondent is ordered to pay the costs of this appeal, in the sum of
$750.00.
Brian G.K. Alleyne
Justice of Appeal