THE EASTERN CARIBBEAN SUPREME COURT
ANTIGUA & BARBUDA
lie v
CLAIM NO ANl!f011/0722
BETWEEN:
Hc.v’
CLAIM NO ANlk2011/0723
BETWEEN:
Appearances:
IN THE HIGH COURT OF JUSTICE
TERLAN IBRAGIMOV
And
VALERIJ FEDORCOV
VLADISLOV POLEGOSHKO
TERLAN IBRAGIMOV
And
VALERIJ FEDORCOV
VLADISLOV POLEGOSHKO
Mr. Kelvin John, Mrs. Lisa John Weste and Loy Weste of Thomas John & Co for the
Claimant/Applicant in both Claims
Ms. Andrea Roberts and Ms. C. Kamilah Roberts for the Defendants/Respondents in both Claims
2014: November 5
JUDGMENT
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[1] HENRY, J.: In each of the matters the Claimant seeks an Order:
1. Pursuant to Part 32 of the Civil Procedure Rules 2000, that Mr. Alvin Langlais, Document
Examiner and Handwriting Expert be deemed an expert in both matters to provide this
court with an expert report as to:
i. The authenticity of the signature purporting to be the claimant’s signature on the
Purchase Agreements dated the 14th day of August 2009 transferring 2500 shares
in Coronel Shipping Company Limited to the first defendant and 2500 shares in
Coronel Shipping Company Limited to the second defendant;
ii. The authenticity of the signature purporting to be the claimant’s signature on the
Purchase Agreement dated 14th August 2009 transferring 2500 shares in Wadden
Euro Shipping Company Limited to the first defendant and 2500 shares in
Waddens Euro Shipping Company Limited to the second defendant.
iii. the authenticity of the signature purporting to be the claimant’s signature on the
Coronel Shipping Company Limited Forms of Transfer dated the 14th day of
August 2009, purporting to transfer the claimant’s shares to the first and second
defendants; and
iv. the authenticity of the signature purporting to be the claimant’s signature on the
Waddens Euro Shipping Company Limited Forms of Transfer dated the 14th day of
August 2009, purporting to transfer the claimant’s shares to the first and second
Defendants.
2. The defendants be ordered to produce for cross examination at the trial of this matter, the
persons purporting to have witnessed the claimant’s signature on the aforementioned
documents;
3. The said expert report to be filed and served within 30 days of the date of this order;
4. The costs associated with the provision of the expert report to be borne by the claimant;
5. The said expert witness shall make himself available for cross-examination at the date of
trial;
6. The time for filing and serving the claimant’s witness statements, listing questionaire, and
pre-trial Memorandum pursuant to the Order of the High Court of Justice dated the 11th
day of October 2012 be extended to a date deemed suitable by this Honourable Court;
7. The claimant be granted relief from sanctions; and
8. There be no order as to costs.”
[2] The defendants object strenuously to the application on several grounds.
Background
[3] The Amended Claim Form and Amended Statement of Claim were filed in Claim No 0722/2011 on
1st March 2012. The Amended Claim Form seeks several declarations and orders including a
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declaration that the transfer of the claimant’s shares in the Company Waddens Euro Shipping
Company Limited to the first and second defendants is illegal, null, void and of no legal effect and
is vitiated for fraud. The claimant also seeks an order for the first and second defendants to
transfer at their expense 50% of the shares in the said company to the claimant. The claimant
alleges in the Amended Statement of Claim that the first and second defendants were appointed
directors of the said company together with a third named person. However, later the first and
second defendant became the only directors of the company upon the resignation of the third
person. In or around August 2009, the first and second defendants in breach of their fiduciary duty
as directors of the company fraudulently, unlawfully and without the consent of the claimant
transferred all 5000 shares issued to the claimant in the company to themselves, and thereafter
fraudulently and unlawfully exercised all the rights of ownership over the said shares to the
exclusion of the claimant.
[4] Included under the heading Particulars of Breach of Fiduciary Duty and Fraud, is the assertion that
the defendants forged the signature of the claimant on the share transfers dated August 14, 2009
so as to fraudulently transfer the shares held by the claimant to them.
[5] The Amended Claim Form and Amended Statement of Claim in Claim No. 0723/2011 seek the
same relief and make the same assertions except that the company shares, alleged to have been
fraudulently transferred by the defendants, are in a company named Coronel Shipping Company
Limited.
[6] In their defence in both claims, the defendants denied that any fraudulent or unlawful actions were
used against the claimant or that the first and second defendant fraudulently or unlawfully
exercised rights of ownership over the shares to the exclusion of the claimant. The first and
second defendants stated that the claimant had voluntarily transferred his shares in both
companies to them.
[7] Case management was held in both matters on the 11th of October 2012. The case management
orders required, among other things, that the parties file and serve witness statements by the 18th
January 2013 and that the parties may apply for further directions by 15th February 2013. Pre-trial
review was fixed for 15th March 2013. On the 15th March 2013, there was non-compliance on both
sides. Both parties had not filed witness statements, listing questionnaire and pre-trial
memorandum. Both parties were ordered to comply by the 19th April 2013 and the pre-trial review
was adjourned to 24th May 2013.
[8] On the 19th April 2013, the defendants in both claims filed their witness statements. Their list of
Documents had been previously filed on 8th November 2012 in compliance with the case
management order.
[9] On 24th May 2013 the date of the adjourned pretrial conference, the claimant had still not filed
witness statements, nor complied with the other directions of the case management order. Also,
the defendants had failed to file their listing questionnaire and pretrial memorandum. Both parties
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were ordered to comply with the case management order by the 28th June 2013. Pre-trial review
was again adjourned to 19th July 2013. Up to this point, no application for the appointment of an
expert witness was made either at the case management conference or at the adjourned pretrial
review dates.
[10) The court did not sit on 19th July 2013 and the matters were adjourned. On 13th December 2013,
the instant applications were filed.
[11] The claimant now seeks various orders including the appointment of a Document Examiner and
Handwriting Expert and that the time for filing and serving the claimant’s witness statements, listing
questionnaire and pre-trial memorandum be extended to a date deemed suitable by the court.
[12) The grounds of the application are:
(1) The claimant’s claim alleges that the first and second defendants fraudulently obtained the
said shares by forging or causing his signature to be forged on transfer instruments; as
such, pursuant to Part 32 of the CPR 2000 and the overriding objective, the court should
appoint an expert witness to prepare an expert report and give evidence in these
proceedings, since his expertise will be crucial and reasonably required to assist the court
in resolving the technical issues of the authenticity of the signature in a just manner.
(2) The claimant has good cause for making this application at the stage of pretrial review,
since the application can only be made now, after the claimant has had an opportunity to
review the defendants’ documents. It is the essence of the claimant’s case that he has not
signed the documents and therefore the transfer of shares is fraudulent and should be
nullified.
(3) It is in the interest of justice and for the just disposal of the case that the said expert
witness, with immense experience and qualifications, should be appointed to make
findings as to the key issues in the case, matters which are outside of the normal
expertise and knowledge of the parties of this case.
(4) The defendants to the suit will not be prejudiced if the application is granted since the
justice of the matter requires that the authenticity of the signatures on the transfer
documents be verified before this court.
(5) With respect to the request for an extension of time to file the witness statements, there is
a good explanation for the claimant’s failure to comply with the court’s order: after
receiving the defendants’ documents, Counsel informed the claimant that it would be
necessary to prove before the court that the signatures were not the claimant’s. The
claimant was instructed to obtain the services of a handwriting expert, but due to the
language barrier, the claimant did not fully comprehend the instructions. The claimant
subsequently sought to have the documents examined by a handwriting expert in the
United Kingdom, but was unsuccessful in his bid to do so. Counsel then made efforts to
secure a handwriting expert from within the jurisdiction. Finally, he was able to secure the
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availability of Mr. Alvin Langlais, but by that time the deadline set by the court had already
passed.
(6) As such, the witness statements could not be concluded until such time as the report is
made available as this goes to the crux of the issue.
(7) No prejudice has been or will be caused to the other party in this matter if the application
herein is granted with respect to the filing and serving of the witness statements and the
agreed list of documents since both parties are in non-compliance. The granting of the
extension is necessary in the interest of the administration of justice and for the just
disposal of this case.
(8) The matter can only be disposed of justly by this court if all the relevant evidence and
witnesses are made available for the trial, therefore the granting of the extension is
necessary in the interest of the administration of justice and for the just disposal of this
case.
(9) There is a real likelihood that the claimant will succeed with his claim. He therefore prays
that the court will grant the order sought with relief from sanctions.
(13] The application is supported by an affidavit by Liddell Jonas, a clerk in the chambers of counsel for
the claimant, together with certain exhibits to which the court will refer later.
[14] The defendants oppose the application on various grounds. The affidavit and submissions filed in
opposition to the application request the dismissal of the application with costs.
Relief from Sanctions
[15] The claimant, in essence, seeks relief in regard to two areas of non-compliance: (1) the failure to
apply for permission to call an expert witness at the case management conference, in accordance
with rule 32.6 and (2) the failure to file witness statements in accordance with the order of the
court.
Part 26.8 (1) and (2) set out the principles that ought to guide a court on an application for relief
from sanction. It provides:
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
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(c) the party in default has generally complied with all other relevant rules,
practice directions, order and directions
Permission to call an expert witness
[16] The defendants make several objections to the claimant’s request to have Mr. Alvin Langlais
deemed an expert witness under Part 32. They are:
1. That the application ought to have been made at the case management stage and not at the
pretrial review and the claimant has presented no cogent reasons for his failure to do so;
2. That Mr. Langlais does not qualify as an expert witness “to help the court impartially on the
matters relevant to his or her expertise pursuant to Rule 32.3;
3. That the claimant has laid no proper foundation in his statement of case for the necessity to
call an expert witness.
4. The affidavit in support is inadequate and the exhibits attached do not support the relief
sought.
5. Lastly, the defendants complain that the claimant by his own evidence is engaging in expert
shopping
Expert Evidence • Part 32 of the CPR
[17] Section 32.2 restricts expert evidence to that which is reasonably required to resolve the
proceedings justly. Accordingly, the court has the power to restrict expert evidence. Section 32.6
sets out the extent of the power. It provides:
32.6 (1) A party may not call an expert witness or put in the report of an expert witness
without the court’s permission.
(2) The general rule is that the court’s permission is to be given at a case
management conference.
(3) When a party applies for permission under this rule –
(a) that party must name the expert witness and identify the nature of his
or her expertise; and
(b) any permission granted shall be in relation to that expert witness only.
(4) The oral or written expert witness’ evidence may not be called or put in unless
the party wishing to call or put in that evidence has served a report of the
evidence which the expert witness intends to give.
(5) The court must direct by what date the report must be served.
(6) The court may direct that part only of an expert witness’ report be disclosed.
[18] The affidavit in support of the application states that the proposed expert, Mr. Alvin Langlais is a
handwriting identification technician. He is the holder of a diploma in scientific crime detection from
the Institute of Applied Science in Chicago, Illinois, USA. He has also attended an overseas
course in England in the fundamentals of Handwriting Identification. In terms of his experience, the
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affidavit states that he has been engaged in this field since 1972, during which time he was a
member of the local constabulary where he practiced his profession. It is also stated that he has
testified in numerous court matters in the High Court in this jurisdiction and abroad on handwriting
matters such as this.
[19] According to the claimant, it is in the interest of justice and for the just disposal of the case that this
expert witness, with immense experience and qualifications should be appointed to make findings
as to the key issues in the case. These are matters, it is stressed which are outside of the normal
expertise and knowledge of the parties.
The Need for Expert Evidence
[20] The Amended Statement of Claim in each matter alleges the unlawful and fraudulent transfer of the
claimant’s shares to the defendants. In the Particulars of fraud, the claimant avers that the
signature of the claimant was forged on the share transfers dated August 14th 2009. The
defendants assert that no proper foundation has been laid in the statements of case for the
necessity to call an expert witness. They point out that no signature of the claimant has been put
before the court. The claimant, they say, did not sign the statement of truth in relation to the claim
form or Amended Claim Form nor any other document before the court. Further the claimant has
presented no facts or evidence to support his allegation in a witness statement. They therefore
conclude that making the application for permission before the claimant’s evidence has been put
before the court and served on the defendants is a case of putting the cart before the horse.
[21] There is no requirement in the CPR that a party’s witness statement must be filed before the
court’s permission is sought. The fact that the general rule is for the application to be made at the
case management conference would suggest otherwise. The need for the expert evidence in this
case is indicated in the pleadings – the claim based on fraud and forgery and a defence which
asserts a voluntary transfer. There is little doubt that, in a case of this nature, expert evidence is
reasonably required to resolve one of the main causes of action ..
[22] No real issue has been taken with the qualifications of Mr. Alvin Langlais. Although the defendants
question the manner in which the information regarding his education and qualification were
presented to the court, this by itself would not prevent leave from being granted. While it is usual
for this information to be presented in a resume or curriculum vitae, this information is also required
to be included in the expert’s report.
[23] The defendants also complain that the claimant’s own evidence illustrates an attempt to find a
witness who would support the allegation of fraud rather than an independent objective witness.
That their difficulties in finding an expert witness stems from this approach in selecting the expert.
Under the rules, the expert evidence presented to the court must be, and should be seen to be, the
independent product of the expert uninfluenced as to form or content by the demands of the
litigation. It is the duty of the expert to provide independent assistance to the court.
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[24) Barrow JA in Josephine Gabriel and Co. Ltd v Dominica Brewery and Beverages Ltd1
discussed the duty under the Rules. He stated:
“The over-arching importance that the rules place on the duty of the expert to assist the
court and not to seek to procure a favourable outcome for the party who instructed him
appears in rule 32.14, which specifies certain things that must be contained in an expert
witness’ report.”
[25) Included among the provisions set out in rule 32.14 (2) are: that the expert report must include a
statement that the expert witness understands his or her duty to the court as set out in rules 32.3
and 32.4; and has complied with that duty. So despite the fact that the expert may have been
selected by a party who has certain expectations, the expert’s duty is to the court. Adherence to
the requirements of Section 32.14 provides some safeguards in this respect.
[26) The gravamen of the defendants’ objection to the application for permission is the promptness of
the application, in that it was not made at the case management stage.
[27] At paragraph 4 of the affidavit in support of the application the claimant states that he has good
reasons for making the application at the stage of the pretrial review. Firstly, that the application
can only be made now, after the claimant has had an opportunity to review the defendants’
documents. Secondly, that after receiving copies of the defendants’ documents the claimant was
informed that it would be necessary to prove that the signatures were not the claimants’. The
claimant was instructed to seek and obtain the services of a handwriting expert, but due to the
language barrier, (the claimant is a Lithuanian national and resides there) the claimant did not fully
comprehend the instructions.
[28) Two e-mails are exhibited in this regard. The first is dated May 2nd 2013, from “Ramune”. It is
addressed to Arthur Thomas; Lisa John, Kelvin John; Loy Weste. Only 2 lines of the email have
not been redacted. They read: “Furthermore, Mr. Terlan lbragimov has not signed any documents
and has not transferred his shares to the defendants, so we have asked for your legal advice what
legal procedures (under your law and practice) should be taken to declare these documents forged
– null and void?” The second email is dated 3rd May 2013 addressed to “Ramune” from Loy
Weste. It too is heavily redacted. The parts that are not, read as follows:
“4. We note in your below correspondence that Mr. lbragimov has not transferred his
shares by executing any documents to that effect. In order to challenge the validity of the
transfer by declaring the documents forged in these civil proceedings, it is necessary to
instruct a Certified Handwriting Expert to examine the signature and declare same as a
forgery.
5. However, we reiterate that you would first need to examine the said documents, and
confirm the forgery by a Certified Handwriting Expert.
1 (Civil Appeal No 10 of 2004) judgment delivered 2″d July 2007
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With respect to the Witness Statements, it is clear that Mr. lbragimov will need to call
an expert witness on handwriting to challenge the validity of the alleged transfer.”
[29] Additionally, the affidavit on behalf of claimant sets out the difficulties he thereafter encountered in
seeking to have the documents examined by a handwriting expert in the United Kingdom, but
without success. Efforts were also made to secure an expert in this jurisdiction and finally he was
able to obtain the services of Mr. Langlais.
[30] Counsel for the claimant refers the court to the case of Cornelius v Stevens and Stevens2. There
the court granted an application for an expert to be appointed at the pretrial review stage. The
court made the finding that the admittance of the expert evidence was likely to be of real
assistance in the determination of the issues. The court elected to exercise its discretion positively
having found that there were cogent reasons for the late application and having concluded that the
justice of the case and the overriding objectives of the rules require that the Court deals with the
matters fairly. Therefore the court rejected opposing counsel’s argument that the expert should
not be appointed at the pretrial review stage.
[31] Since the general rule is that permission should be obtained at the case management conference,
it is for the claimant to supply the court with bona fide and cogent reasons for his failure to comply
with the general rule. The Court finds that the expressed difficulties in sourcing a handwriting
expert in the United Kingdom combined with the language barrier and the other communication
challenges provide cogent reasons for the delay.
[32] Further, permission ought to be granted given the nature of the claim, the justice of the case and
the overriding objectives of the rules to deal with the matter fairly. No trial window has been set, so
further prejudice in terms of delay in the trial is minimal. Accordingly permission is granted for Mr.
Langlais to be called as an expert witness.
The Failure to File Witness Statements
[33] The second vigorous objection by the defendants is to the granting of a further extension for the
claimant to file his witness statement.
[34] The claimant asserts that the witness statements could not be concluded until such time as the
expert’s report is made available “as this goes to the crux of the issue”.
[35] The defendants, on the other hand, submit that claimant has abysmally failed to put forward a good
reason explaining the delay in filing the witness statement and accordingly the delay is
inexcusable. Further, that the explanation given is neither rational nor logical.
[36] Both parties were required to file their witness statements and comply with the case management
order by 28th June 2013. The defendants filed their witness statements on 19th April 2013.
2 ANUHCV2006/0234, Judgment delivered December 5, 2008, paragraph 42
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However, the claimant failed to file his witness statement. Under the rules, if a witness statement
or witness summary is not served within the time specified by the court, the witness may not be
called unless the court permits.
[37] The reason given by the claimant for his failure to file is that the witness statements could not be
concluded until such time as the expert’s report is made available. The claimant had a duty to file
the witness statement in accordance with the order of the court. If upon receipt of the expert’s
report, the claimant’s witness statement needed amendment or amplification the rules make
provision for same. While counsel may have been mistaken the failure was not intentional.
[38] Subsection (3) of Rule 26.8 requires that the court have regard to certain factors in considering
whether to grant relief. They include the effect which the granting of relief or not would have on
each party.
[39] The impact on the claimant’s cases would be highly prejudicial, since the claimant appears to be
the only witness in each case, apart from the expert. The impact on the defendants would be
minimal. Since the court has decided to grant permission for expert evidence, there would be no
additional delay beyond the filing of the expert report. The interest of the administration of justice
favors allowing all relevant evidence to be put before the court. The failure to comply can be
remedied in a reasonably short time. There will be no disturbance of a trial date, since none has
been fixed as yet. Accordingly, the court will allow a final short adjournment for the claimant to file
and serve his witness statement.
[40] Lastly, the claimant seeks an order that the defendants be ordered to produce for crossexamination
at the trial, the persons purported to have witnessed the claimant’s signature on the
documents. The claimant does not indicate which rule he is invoking. Rule 29.1 sets out the
general power of the court to control the evidence to be given at any trial. But Rule 29.1 does not
empower the court to order a party to call a witness.
[41] The provisions of Rule 29.1 are similar to the provisions of the UK rule 32.1 (1). In Society of
Lloyd’s V Jaffray and others3, one of the defendants sought an order requiring Lloyds to call the
witnesses identified, so that the defendant could cross- examine them. Mr. Justice Cresswell
stated that the question was whether the court might require evidence to be adduced which the
party was not minded to call. The court held that in civil proceedings the trial judge had no power to
dictate to a litigant what evidence he or she should tender notwithstanding the general power of the
court under rule 32.1, which was a far-reaching one.
Phipson on Evidence4 summarizes the position:
” In civil cases there is no obligation to call witnesses, even where an intention to call the
witness is notified by disclosure of their evidence … “
3 (2000) The Times 3’d August 2000
4 151h edition (2000), paragraph 10-09
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..
It follows that the court has no jurisdiction to make the order sought.
[42) The court therefore makes the following order:
(1) Permission is hereby granted, pursuant to Part 32 of the Civil Procedure Rules, for Mr. Alvin
Langlais to be called as a Document Examiner and Handwriting Expert in both matters and to
provide this court with an Expert Report in regard to the matters set 9ut below;
In respect of Claim No. 2011/0723:
i. The authenticity of the signature purporting to be the claimant’s signature on the
Coronel Shipping Company Limited Form of Transfer dated the 14th day of August
2009, purporting to transfer 2500 of the claimant’s shares to the first defendant;
ii. The authenticity of the signature purporting to be the claimant’s signature on the
Coronel Shipping Company Limited Form of Transfer date the 14th day of August
2009, purporting to transfer 2500 of the claimant’s shares to the second defendant
In respect of Claim No. 2011/0722:
i. The authenticity of the signature purporting to be the claimant’s signature on the
Waddens Euro Shipping Company Limited Form of Transfer dated the 14th day of
August 2009, purporting to transfer 2500 of the claimant’s shares to the first
defendant; and
ii. The authenticity of the signature purporting to be the claimant’s signature on the
Waddens Euro Shipping Company Limited Form of Transfer dated the 14th day of
August 2009, purporting to transfer 2500 of the claimant’s shares to the second
defendant.
(2) The Expert report in each matter is to be filed and served on or before 23rd January 2015
(3) The expert witness shall make himself available for cross-examination on the date of trial.
(4) The cost associated with the provision of the Expert Report is to be borne by the claimant;
(5) The time for claimant’s compliance with the case management order dated 24th May 2014 is
extended to 22nd December 2014;
(6) The claimant is granted relief from sanctions;
(7) Pre trial review is adjourned to 6th march 2015
(8) No order as to costs.
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High ourt Judge
Antigua & Barbuda