William B. Paterson (Also known as Bill Paterson) Claimant v Winston Thomas Fleary Caryl F. C. Paterson Daryl P. Thompson Patrick Paterson Gerva Paterson Rhina Campbell Gloria John Sonia Johnson Twistleton Paterson Carmik Paterson Davidson Paterson Joseph Paterson Donna Coy Lisa George Defendants
| Jurisdiction | Caribbean States |
| Judge | Gilford, J |
| Judgment Date | 12 February 2016 |
| Judgment citation (vLex) | [2016] ECSC J0212-2 |
| Docket Number | CLAIM NO. GDAHCV 2008/0203B |
| Court | Eastern Caribbean Supreme Court |
| Date | 12 February 2016 |
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
IN THE HIGH COURT OF JUSTICE
IN THE ESTATE OF NORBERY BRIGLAND CARYL PATERSON (DECEASED)
CLAIM NO. GDAHCV 2008/0203B
Gilford, J.: This matter has had a long history. It began by Fixed Date Claim Form. The claim was filed on the 31st day of March 2008. The claim seeks the revocation of a Grant of Probate of a will of Norbery Brigland Caryl Peterson, which was granted on the 28th day of September 2006. The claim also sought to have a will dated 19th August 2002 pronounced valid together with the probate of that will.
The Case Management Order was made on the 22nd day of January 2015. The order stated:
"On the 12th day of November 2015, the Claimant/Applicant filed his witness statements one day before the date set for Pre-Trial Review. The witness statements were due to be filed on the 20th day of April 2015,"
On 13th day of November 2015, the date set for Pre-Trial Review, Counsel for the second named-Defendant/Respondent objected to the filing of the witness statements. This court granted the Claimant/Applicant leave to file an Application to be relieved from sanctions in order to have the witness statements and witness summary be used at trial.
The Claimant/Applicant filed his Application to be relieved from sanctions and to have the witness statements and witness summary be deemed properly filed on the 17th November 2015. The second-named Defendant/Respondent filed his affidavit in response opposing the Application on the 24th day of November 2015.
In support of the Application the Claimant/Applicant deposed that "the Claimant/Applicant did not meet the 20th April 2015 deadline set for filing witness statements because he could not locate all of his witnesses in time to comply with the aforesaid 20th April 2015 deadline. This was exacerbated by the fact that the claimant lives in Carriacou and most of the witnesses live in Grenada".
Counsel submitted that before the 20th April 2015 deadline for filing witness statements, he informed the Head of Chambers of the second-named defendant's of his difficulty and requested that the second-named defendant file his witness statements in a sealed envelope. This was done. He was unable to file the statements as ordered by the court and subsequently filed the witness statements on the 12th November 2015.
The Claimant/Applicant has generally complied with all orders and directions made in this action. The second-named Defendant/Respondent has suffered no prejudice as a consequence of the late filing of the claimant's witness statements. The failure to file my witness statements on time was not intentional. A trial date has not yet been set for the trial of this matter and the second-named Defendant/Respondent is not prejudiced in that regard.
In opposition, the second-named Defendant/Respondent deposed that the matter came up for Case Management Hearing almost seven (7) years after proceedings were instituted. On the 20th April, 2015, the same day required for the filing of witness statements, the second-named Defendant/Respondent was informed the Claimant/Applicant would not be ready to exchange witness statements on the said 20th April 2015, and it appeared that the Claimant/Applicant was again finding another way to further delay the matter.
He further deposed that the that the Claimant/Applicant could have filed 'Witness Summary' for his witnesses, pursuant to Part 29.6(1) of the Civil Procedure Rules. He averred that the Claimant/Applicant's failure and/or refusal to file andserve the witness statements or witness summaries in time should bar him from being able to rely on such witnesses at trial, since they were filed almost seven (7) months after the date ordered by the court.
He further deposed that justice is not being served with the severe delays that he has undergone on account of the Claimant/Applicant's tardiness and apparent lack of interest in meeting the set deadlines of the court. As a result he has been unable to receive the gift from his grandfather made by his Last Will and Testament, forced to rent alternative premises until this matter is resolved, both his brother and himself have endured financial strain as a result of the case and it has hampered his ability to pursue further studies abroad. Furthermore, he deposed that the history of this matter confirms that the Claimant/Applicant has not treated with it in a timely manner and he and the other beneficiaries have endured delays at the hands of the Claimant/Applicant.
The second-named Defendant/Respondent further averred that the Claimant/Applicant has not applied to this court to lead expert evidence in the person of Dr. Sonia Johnson and that her evidence does not comply with the requirements of the CPR with regard to expert evidence.
Part 26.7 (2) of the Civil Proceedings Rules, 2000 (hereinafter "CPR") states,
"If a party has failed to comply with any of these rules, a direction or any court order, any sanction for non-compliance imposed by the rule, direction or the order has effect unless the party in default applies for and obtains relief from the sanction, and rule 26.9 does not apply."
Rules 29.11(1) and (2) of the CPR 2000 state:
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(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 permits;
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(2) The court may not give permission at the trial unless the party asking for permission has a good reason for not previously seeking relief under rule 26.8.
The law regarding an application from relief from sanction is set out in Part 26.8 of the Civil Procedure Rules 2000 which states as follows:
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(1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be –
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(a) Made promptly; and
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(b) Supported by evidence on affidavit.
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(2) The court may grant relief only if it is satisfied that –
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(a) The failure to comply was not intentional;
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(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, orders and directions.
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(3) In consideration whether to grant relief, the court must have regard to –
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(a) The effect which the granting of relief or not would have on each party;
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(b) The interests of the administration of justice;
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(c) Whether the failure to comply has been or can be remedied within a reasonable time;
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(d) Whether the failure to comply was due to the part or the party's legal practitioner; and
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(e) Whether the trial date or any likely trial date can still be met if relief is granted.
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(4) The court may not order the respondent to pay the applicant's costs in relation to any application for relief unless exceptional circumstances are shown.
In the case of theAttorney General v Keron Matthews,1 Lord Dyson, on examination of rules 26.6, 26. 7 and 29.13(1) of the Trinidad and Tobago CPR, which are similar to rules 26.7, 26. 8 and 29.11(1) respectively of the Eastern Caribbean Court CPR 2000, stated:
"Rules 26. 6 and 26.7 must be read together. Rule 26.7 provides for applications for relief from sanction imposed for a failure to comply inter alia with any rule. Rule 26.6(2) provides that where a party has failed inter alia to comply with any rule, 'any sanction for non-compliance imposed by the rule … has effect unless the party in default applied for and obtains relief from sanction" (emphasis added). In the view of the Board, this is aiming at rules which themselves impose or specify the consequences of a failure to comply. Examples of such rules are to be found in rule 29.13(1) which provides that if a witness statement or witness summary is not served within the time specified by the court, then the witness may not be called unless the court permits."
The coupled effect of rules 26.7( 2), and 29.11( 1) and (2) is that a witness statement or summary is automatically excluded if a party fails to comply with an order of the court and the witness will not be permitted to testify at the trial. In relation to the case at bar the failure of the Claimant/Applicant to file his witness statements on or before the 20th April 2015 falls within sanction.
Therefore, a party who fails to comply with an order of the court must seek permission to obtain relief from the expressed sanction imposed by rule 29.11 of the CPR. It therefore follows the Claimant/Applicant non-compliance with the Case Management Order (CMO) of the court of the 22nd day of January 2015 resulted in automatic sanctions pursuant to rule 29.11(1)2 of the CPR. As a result of this sanction the onus then fell on the Claimant/Applicant to apply to the court to be relieved from sanctions. In an effort to determine whether the court should
exercise its discretion to grant the relief sought, the court will now look at the guiding principles under rule 26.8 to determine whether Defendant/Applicant should be granted the relief prayed for.In the case ofRobin Darby v LIAT (1974)3, Pereira JA as she then was stated,
"[15] This rule says in effect that an application for relief must be made promptly and be supported by affidavit. The relevant part of this rule which is critical to the court's exercise of its discretion to grant relief is contained in sub-rules ( 2) and (3)....
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