Clive Crick v Norris Lewis

CourtEastern Caribbean Supreme Court
Docket NumberSVGHCVAP2018/0009
JudgeMichel JA
Judgment Date25 Feb 2021
JurisdictionCaribbean States
Neutral Citation[2021] ECSC J0225-1
[2021] ECSC J0225-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Gerard Farara Justice of Appeal [Ag.]

SVGHCVAP2018/0009

Between:
Clive Crick
Appellant
and
[1] Norris Lewis
[2] Joan Lewis
Respondents
Appearances:

Mr. Richard Williams and Ms. Dannielle France for the Appellant

Dr. Linton A. Lewis for the Respondents

Civil appeal — Cross examination — No accepted documentary evidence in court below — No independent witnesses — Whether learned trial judge erred in that, having established that the outcome of the case hinged on credibility, failed or refused to permit counsel for the appellant to pursue a line of cross-examination of the respondents intended to put in doubt their credibility — Rule 29.10 of the Civil Procedure Rules 2000 — Latitude to be given to counsel during cross-examination — Evidence elicited in cross-examination may be relevant to the witness' credit despite not being directly relevant to issue before court — Latitude to be given to counsel during cross-examination where there is no independent witnesses or admissible evidence — Rule 29.1 of the Civil Procedure Rules 2000

The second respondent, Joan Lewis and her husband, Norris Lewis, the first respondent, instituted proceedings against the appellant, Clive Crick (who is the second respondent's brother) for $57,500.00. The respondents claimed in the court below that they had sent the said sum over a number of years from England to the appellant in Saint Vincent and the Grenadines (“Saint Vincent”), to conclude the purchase of land on their behalf in Saint Vincent. However, the land was never purchased and the money was never returned. The appellant denied the claim and averred that only some of the money which the respondents claimed to have sent to him was in fact sent and for a purpose unrelated to any land purchase.

The case was tried in the High Court and there being no documentary evidence accepted by the trial court or no independent witnesses, the outcome of the case was determined by the court based on whose evidence the trial judge believed. The trial judge preferred the evidence of the respondents over that of the appellant and gave judgment in favour of the respondents. The appellant, being dissatisfied with the decision of the learned trial judge appealed on four grounds of appeal, later only relying on his first ground of appeal. The main issue which arises for determination before this Court is whether the learned trial judge erred in that, having established that the outcome of the case hinged on credibility, failed or refused to permit counsel for the appellant to pursue a line of cross-examination of the respondents intended to put in doubt their credibility.

Held: allowing the appeal; setting aside the orders of the learned trial judge; ordering a retrial in the High Court before a different judge; and ordering that each party bear its own costs on the appeal and in the court below, that:

  • 1. Rule 29.10 of the Civil Procedure Rules 2000 (“CPR”) gives latitude to counsel cross-examining an opposing witness to question him or her on statements made in his or her witness statement even though not even a part of the statements was referred to in the witness' evidence in chief. Further, this rule does not restrict counsel to asking only questions arising from statements made in the witness' witness statement. The trial judge in the court below adopted a very narrow view of the scope of cross-examination, consistently ruling that counsel could only ask a witness a question under cross-examination if the question was on an issue which was addressed in his client's statement of case or witness statement. This approach is contrary to CPR 29.10 which in fact enlarged, and not narrowed, the scope of cross-examination. The trial judge accordingly erred.

    Rule 29.10 of the Civil Procedure Rules 2000 applied.

  • 2. Evidence given in court, whether elicited in examination-in-chief, cross-examination or re-examination, should be relevant to the issue or issues before the court. Evidence elicited in cross-examination, however, may be relevant to the witness' credit, even though not directly relevant to the issue or issues before the court. The trial judge restricted cross-examination of the witnesses to questions which she determined were relevant only to the matters in issue between the parties and/or matters which were addressed in the opposing party's statements of case or witness statements. This prevented counsel for the appellant from testing the credibility of the second respondent and from seeking to establish that her motive for filing the case against the appellant was not to recover money that he owed to her and her husband, but in furtherance of the animus which she had developed towards him on account of a dispute over family lands. It follows that the trial judge did err in her approach.

    Phipson On Evidence 14 th Edition applied; Hobbs v Tinling (C.T.) and Company, Limited and Hobbs v Nottingham Journal, Limited [1929] 2 K.B. 1. applied.

  • 3. In cases where there were no independent witnesses or admissible documentary evidence, and which therefore turned entirely on the credibility of the parties, it is of the utmost importance for counsel to have the latitude to cross examine opposing witnesses on issues of credibility, even though not directly relevant to the issue or issues being tried by the court, and even though not addressed in the party's statements of case or witness statements. Insofar as the trial judge did not give this latitude to counsel, and in fact directed witnesses not to answer questions posed by opposing counsel or disallowed the questions from counsel even when the questions were relevant to the credibility of the witnesses, she fatally erred in the exercise of her powers under rule 29.1 of the CPR to control the evidence given at trial.

    Rule 29.1 of the Civil Procedure Rules, 2000 applied.

Michel JA
1

This is an appeal against a judgment of a trial judge dated 30 th July 2018 ordering the defendant (who is the appellant in this appeal) to pay to the claimants (who are the respondents in this appeal) the sum of $57,500.00, together with judgment interest and prescribed costs.

Background
2

The setting is a not untypical one in the Caribbean, particularly in the latter half of the last century. A locally-based Caribbean family with a British-based family member who sends his or her ‘highly-valuable English money’ to a local relative to undertake some task for him or her. All seems well until a not-unusual family land dispute breaks out, dividing members of the family. The appellant and the second respondent in this case, a brother and a sister, end up on different sides of the land dispute and litigation ensues, including this case in which the second respondent and her husband, the first respondent, instituted proceedings against the appellant for $57,500.00 which they (the respondents) say they had sent from England to the appellant in Saint Vincent and the Grenadines (or “Saint Vincent”) to purchase a portion of land for them, but the land was never purchased and the money was never returned. The appellant denied the claim and averred that only some of the money which the respondents claim to have sent to him was in fact sent and for a purpose unrelated to any land purchase. The case was tried in the High Court and, there being no documentary evidence accepted by the trial court or no independent witnesses, the outcome of the case was determined by the court based on whose evidence the trial judge believed — the evidence of the respondents (as the claimants in the court below) or the evidence of the appellant (as the defendant in the court below). The trial judge preferred the evidence of the respondents over that of the appellant and gave judgment in favour of the respondents. The appellant appealed.

The appeal
3

The appellant's notice of appeal, filed on 11 th September 2018, contained four grounds of appeal, as follows:

  • (1) The learned trial judge having appreciated that the matter was one which hinged on the question of credibility erred in failing and or refusing to permit the parties to answer in cross-examination questions to establish that the sole purpose of the claimants bringing the action was because of a property dispute they are engaged in.

  • (2) The learned trial judge erred in finding that the motive behind the respondents filing the claim against the appellant was irrelevant.

  • (3) The learned trial judge erred in finding that the respondents transferred the sum of £6,000.00 to the appellant on just the mere say so of the [respondents] and without having a single shred of supporting evidence to support such a transfer.

  • (4) The learned trial judge erred in finding that the appellant held the sum of £11,500.00 on a resulting trust for the respondents and as such the claim was not capable of being statute barred under the provisions of the Limitation Act.

4

On 21 st August 2020, the appellant filed written submissions in support of his appeal. In the submissions, the appellant stated that his first three grounds of appeal could be conveniently rephrased into a single ground, as follows:

“The Learned Trial Judge erred in not appreciating that credibility was an important and central issue at the trial and unfairly restrained the Appellant from giving conflicting evidence to the Respondents which would have impugned their credibility.”

He also stated that he was withdrawing his fourth ground of appeal.

5

On 25 th September 2020, the...

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