Richardson v The Attorney General of Anguilla and Charles
| Jurisdiction | Anguilla |
| Judge | Small Davis, J. |
| Judgment Date | 07 July 2009 |
| Neutral Citation | AI 2009 HC 13 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Date | 07 July 2009 |
| Docket Number | AXAHCV 12 of 2008 |
High Court
Small Davis, J. (Ag.)
AXAHCV 12 of 2008
Ms. Paulette Harrigan for the claimant.
Mr. Ivor Greene for the defendants.
Damages - Assault and battery — Unlawful search of the claimant's person — Whether claimant entitled to aggravated and exemplary damages — Quantum.
Civil practice and procedure - Non-compliance with order to file and serve witness statement by a specified date — Sanction for non-compliance — Whether there was a good reason for non-compliance — Defendants not permitted to call their witnesses.
Small Davis, J. (AG.): The claimant filed suit against the defendants claiming damages for the 2nd defendant's wrongful and unlawful assault upon the claimant at the Cove Road in the island of Anguilla whilst in the purported performance of his duties as a police constable of the Royal Anguilla Police Force.
At the start of the trial, the claimant's counsel launched a well prepared surprise attack on the defendants. In reliance on CPR 29.11, the claimant sought an order preventing the defendants from calling their witnesses. It was a pre-emptive strike. The claimant's Counsel did not wait for the defendants to make an application at the trial for permission to call the witnesses. Indeed, it became quite clear in a few short minutes that the defendants were wholly unprepared either to make the requisite application under CPR 29.11 (2) or to fend off the claimant's attack.
The basis of the claimant's application was that the defendants had failed to comply with the case management order of 21 July 2008 by which the parties were to file and serve their witness statements on or before 22 August 2008. The defendants filed three statements of their intended witnesses Cons. Edson Charles, the 2nd defendant, Cons. Maurice Bryson and Cons. Roger Phillips on 25th August, 9th September and 25th September 2008 respectively.
The claimant's Counsel pointed out that under CPR 26.1 (2)(k) the defendants were required to seek an extension of time to file and serve the witness statements and they were also required to seek relief from sanctions under CPR 26.8. The sanction for non compliance in serving a witness statement within time is that the witness may not be called unless the court permits. The claimant's counsel referred to the fact that the matter had come before the court on two occasions, 30 March and 22 April 2009 for pre trial review and no application was made then or since.
The claimant's counsel placed heavy reliance on the judgment of Barrow, J. (as he then was) in Kenton Collinson Bernard v. A G of Grenada GDAHCV1999/0084, 61h April 2003. The stringency of the regime introduced by the Civil Procedure Code as it relates to non compliance with trial timetable was laid out with absolute clarity in the judgment:
“The setting of a fixed sanction for non-compliance results in the elimination of the wide discretion of old and this last is completed by limiting the court's ability to grant relief from sanction. The court can only consider granting relief, at the trial, if the defaulting party gives good reason for not having previously applied for relief. A tight structure is therefore established to deal with non-compliance. However convincing may be the explanation for non-compliance the court cannot even start to consider it, far less allow itself to be affected by any explanation, unless the defaulter has a good reason for not having made a formal application for relief from sanctions. The effect of rule 29.11 is that a defaulter may have a good explanation for non-compliance but no good reason for having failed to previously apply for relief from sanction and in that event the defaulter must suffer the sanction.
Rules 26.7 and 26.8 express the central idea that the fixed sanction for non-compliance will take effect unless there is a prompt application for relief supported by evidence on affidavit. The requirement underscores the imperative that the defaulter must act. The defaulter cannot sit by until the day of the trial, as was the old practice, because not even an excuse of superior merit can save the defaulter if he does not act promptly to seek relief from sanction. It is mandatory that such an application must be made promptly because if an application for relief could be made any old time there would be no certainty to trial dates since these would need to be vacated to accommodate late compliance that had been permitted upon late applications. The companion requirement to promptitude, that there must be evidence on affidavit, emphasises the weightiness of satisfying the stated conditions and eliminates the old practice of counsel merely trotting out an excuse from the bar table.”
In response to this application for the sanction to be meted out to the defendants, their counsel offered an explanation for the late service of the witness statements: that all the officers had been off island and the witness statements were prepared upon their return, which was on dates after the date fixed for service. The reason for failure to apply for relief from sanctions was inadvertence. Neither explanation, but particularly the one offered for failure to apply for relief from sanctions, was good. In fact they were wholly inadequate. Moreover, CPR 26.8(1) mandates that the application for relief must be made on evidence by affidavit and made promptly. In the circumstances, the court had no discretion, its discretionary powers not having been given a breath of life by a good reason for having failed to formally apply for relief against sanctions, a point which the defendants' counsel conceded.
The rigidity of the rule was relaxed to some degree by the Court of Appeal in Treasure Island Company Ltd. and another v. Audubon Holdings limited and another (ECCA, BVI civil Appeal No. 22 of 2003, 20th September 2004) in which Saunders JA reserved an exceptional discretion where special circumstances exist that could entitle a court to dispense with strict compliance with CPR 29.11. In the Treasure Island case, the claimants had also filed and served their witness statements long before the trial date, albeit outside the date fixed for doing so. However in that case, the claimants had consented to a later date for exchange of the witness statements at the request of one of the defendants. The Court of Appeal found that the late filing of the witness statements to accommodate one of the defendants coupled with the nature of the special relationship between all three defendants created special circumstances that could establish a good reason for not promptly seeking relief under CPR 26.8.
The defendants could not identify any special circumstances to resuscitate the defendants' situation.
In the result, the defendants were not permitted to call their witnesses and the trial proceeded with the defendants having very limited ability to challenge the claimant's case.
The claimant relied on the evidence of Mr. Traverne Greene and Mr. Julian Richardson, Rufus Richardson and Kelly Ann Richardson-Wilson. He also gave evidence.
His case was that at around 8pm on November 2007 he and his two cousins Traverne Greene and Julian Richardson were sitting under a tree by the side of the road. He said he saw a vehicle approaching, which then stopped in front of them. The claimant said he recognized it as a police vehicle used by the Police Task Force. Its windows were fully wound up and the glass was tinted. The driver side window was rolled down. It was the 2nd defendant. He said he was going to search the three young men. The claimant responded “Boy why you don't move from here and stop harassing people.” The claimant said he also told the 2nd defendant “who he supposed to be looking for he is not looking for”.
The 2nd defendant and two other officers got out of the jeep. They were in the Task Force uniform. The claimant said he smelled alcohol on the defendant's breath. The 2nd defendant confronted him and told him to stand. He replied “boy why you don't stop harassing people.” The 2nd defendant grabbed him by his shirt sleeve and pulled him up to a standing position. The 2nd defendant then tapped his two front trouser pockets and let him go. The 2nd defendant returned to the jeep and remarked to the claimant that he should take a page out of Julian's book, apparently referring to the fact that the other two young men had turned out the pockets for the other two officers. The claimant said the 2nd defendant swore at him. The claimant said he answered the 2nd defendant by swearing back at him. The 2nd defendant then jumped out of the vehicle came towards him, grabbed his shirt sleeves and pulled him to his feet and began to choke him. The 2nd defendant then flung him against the jeep and grabbed his left arm and spun him put into the road.
The claimant said he called his father who immediately came onto the scene from just across the road. When his father arrived he listened to the claimant's account of what had just happened and then confronted the officers. In the meantime, the claimant went by the driver door and spoke to the 2nd defendant telling him “it was not going to go like that and don't try that again”. He repeated these words to the 2nd defendant. The claimant said by these words he was putting the 2nd defendant on notice that he was going to take legal action against him. The 2nd defendant got out of the jeep and went up in his father's face and told him to tell the claimant “to get out of his face or else”. The claimant said the 2nd defendant hit his own head with both his hands and started banging the side of the vehicle with his two hands and then got back in. According to the claimant, the 2nd defendant behaved in a crazy manner. All three policemen got into the jeep and drove off.
The...
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