Hodge v Cable & Wireless (wi) Ltd

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: George-Creque, J.
• Judgment Date: 17 December 2003
• Neutral Citation: AI 2003 HC 9
• Docket Number: 108 of 1998
• Date: 17 December 2003

High Court

George-Creque, J.

108 of 1998

Hodge

and

Cable & Wireless (wi) Limited

Appearances:

Mr. Patrick Patterson for claimant

Ms. Joyce Kentish and Mrs. Navine Fleming Kisob for defendants

[1] George-Creque, J.: The claimant commenced an action against the defendants by Writ of Summons pursuant to the Rules of Court 1970 (“the Old Rules”) on 29 ^th October 1998 claiming damages for defamation. This action having not been disposed of by trial prior to the advent of the Civil Procedure Rules 2000 (“CPR 2000”) the matter fell to be governed by CPR 2000. An order on a Summons for Directions under the Old Rules was made on 28 ^th January, 2000 and a trial date, it appears from a perusal of the file, was fixed for 18 ^th February 2000. The trial however, never took place and the matter eventually came up before Master Hugh Rawlins (as he then was) on a Case Management conference on 19 ^th February 2001 pursuant to CPR 2000. The matter came up before Mitchell J. on Pre– Trial Review on 7 ^th April, 2003 on which date he gave further directions for trial (“the PTR Order”). He ordered inter alia, that the time for filing Witness Statements be extended to 15 ^th May, 2003 and that the Core Bundle of documents be filed by 30 ^th May, 2003. The Trial of the matter was eventually fixed for 10 ^th – 12 ^th December, 2003.

[2] Witness Statements on behalf of the defendants were duly filed in compliance with the PTR Order. Two Witness Statements were filed on behalf of the claimant in accordance with the PTR Order. However, a further two of the Witness Statements were not so filed in that the Witness Statement of Melissa Hodge and that of the Claimant herself (“the impugned witness statements”). were not filed until May 20 ^th and May 23 ^rd respectively, thus being outside the time fixed in the PTR Order.

[3] This matter came on for trial on 10 ^th December, 2003 in accordance with the date fixed therefor. Counsel for the defendants however, before the actual trial began, raised with the court the fact that there was non compliance with the PTR Order in that the impugned witness statements had been filed out of time and that no application for relief against sanctions had been made under CPR Part 26.8 and that accordingly the sanction set out under CPR Part 29.11 became effective as per CPR Part 26.7. Counsel for the defendants relied upon the case of Kenton Collinson St. Bernard v. The Attorney General of Grenada and others in Suit No. 84 of 1999, a decision of the High Court Grenada in which Denis Barrow J.:(Ag) ruled that witness statements which had been filed out of time and finding no good reason for the failure to previously apply for relief from sanction struck out the late witness statements (one of which was the claimant's) the result of which was that the claimant was therefore unable to prove his case and judgment accordingly entered for the defendants. Were I to disallow the impugned witness statements, this case will suffer a similar fate as the claimant would not be able to prove her case. The decision of the trial judge went on appeal to the Court of Appeal in Civil Appeal No. 10 of 2003. There is no full written judgment of the Court of Appeal but from the written note subsequently made available to the court the appeal was allowed and time was given for the filing of witness statements. The reason given for allowing the appeal was that the Court Office appeared to have been in default in not serving upon the Appellant as required by CPR r 27.5(5) the Case Management Order that required him to file and serve witness statements in the matter. It was also noted that appellant's legal practitioner was not free of blame in the matter. No assertion of non compliance with CPR Part 27.5(5) is being made in the instant case.

[4] Counsel for the claimant in responding, argued that the defendants in taking this point had taken him by surprise since he had been given no prior notice of their application. He also pointed to the fact that other directions given in the PTR Order had been complied with in that the Core Bundle had been prepared and had been agreed to by the defendants which was tantamount to the defendants taking a step in the action and as such it was to be taken that the defendants had therefore waived their right to raise the issue of non compliance at this stage. He further referred to the overriding objective of CPR 2000 which is to deal with cases justly and specifically referred to. Parts 1.1, 1.2 and 1.3 thereof. He further urged that CPR Part 29.11 ought to be read in conjunction with Part 26.1(2) (k) which gives the Court general power to extend or shorten the time for compliance with any rule, practice direction, order or direction.

[5] In further support of claimant's counsel's contention of waiver he pointed out that the defendants had participated in the preparation of the Core Bundle in the matter proceeding to trial and that the Core Bundle which had been agreed to by the Defendants contained the impugned witness statements which Core Bundle had been filed since May 29 ^th 2003 to which the defendants had not raised a complaint and therefore it was not now open to them to take the position now being taken under CPR Part 29.11. Counsel relied upon the following authorities:

• (1) Fry v. Moore (1889) vol. 23 QBD 395

• (2) Boyle v. Sacker (1888) vol. 39 Ch.D 249

• (3) St. Kitts Development v. Golfview Development Ltd. Anr. Civil Appeal No. 24 of 2003 (St. Christopher & Nevis)

Practice and procedure - Witness statements filed out of time — Irregularity deemed to have been waived under the CPR 2000, Parts 1.1, 1.2...