Carl Defreitas v R & R Investments

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 11 January 2018
• Neutral Citation: VC 2018 HC 2
• Date: 11 January 2018
• Court: High Court (Saint Vincent)
• Docket Number: SVGHCV2008/0138

High Court

Henry, J.

SVGHCV2008/0138

Carl Defreitas

and

R & R INVESTMENTS

Appearances:

Mr. Emery Robertson Snr. for the claimant, with him,

Ms. Samantha Robertson and Ms. Mafia Eustace;

Ms. Patina Knights for the defendant.

Civil practice and procedure - Witness — Recalling a witness after close of case.

ORAL DECISION

Henry, J.

1 This is an application by the claimant Carl DeFreitas, made orally on the 11th day of January, 2018. Mr. DeFreitas has applied to the Court for an order permitting him to recall a witness (Errol Sutherland) who filed a witness statement in this matter on the 26th of April 2010. Subsequently on the 7th of May 2010, on application made by the claimant it was ordered among other things that:

‘The witness Errol Sutherland shall testify in this matter as an expert witness.’

2 It is not clear from the Court's record how that order arose. I am unable to locate any notice of application made by the claimant in respect of the order which was made on the 7th of May 2010. I note that the order does not have the name of the judicial officer who made it but it was filed on the 29th of June 2010 and signed off by someone who appears to be the Registrar. As I indicated previously, I am unable to verify the date that a Notice of Application for the appointment of Mr. Errol Sutherland as an expert witness was filed.

3 In any event, on the 26th of September 2017 Mr. Errol Sutherland was presented by the claimant as one of his witnesses and the Court having reviewed the content of his witness statement observed and remarked that it did not comply with the stipulation set out in the Civil Procedure Rules part 32 relating to the format and content of expert witness reports; and in the circumstances refused to permit Mr. Errol Sutherland to give testimony as an expert. He departed the Court and the claimant proceeded with his case and closed his case. The defendant presented its case and this morning closed its case.

4 The application which is presently before the Court was made at the end of the case for the defendant. In fairness to the claimant, I must say that the claimant on the morning of January 11th 2018 indicated that there was a house-keeping matter which he wished to bring to the Court's attention, namely that he proposed to make an oral application for the witness Errol Sutherland to be recalled. The Court indicated that it would entertain the application later in the day having enquired of learned counsel Mr. Emery Robertson Snr. whether or not he had indicated to counsel for the defendant that the claimant proposed to take that course.

5 At the close of the case for the defendant, the Court rose to enable the parties to have their morning ergonomic break and also to give them an opportunity to discuss how they intended to proceed in relation to this issue. When Court resumed sitting, learned counsel Mr. Emery Robertson for the claimant proceeded to make an oral application for an order permitting the claimant to recall Errol Sutherland not as an expert witness but as an ordinary witness. In his oral application, learned counsel Mr. Robertson submitted that the Court should have regard to CPR 29.8 (1) which stipulates that a party must call a witness who has given a witness statement.

6 CPR 29.8 (1) reads if a party:

• (a) Has served a witness statement or summary; and

• (b) wishes to rely on the evidence of that witness;

  that party must call the witness to give evidence unless the Court orders otherwise.

7 I hasten to add that this rule has been already complied with in the case of Mr. Errol Sutherland because he was called by the claimant on the 26th day of September 2017. Learned counsel Mr. Emery Robertson submitted further that it is possible to recall the witness to give rebutting evidence. The Court acknowledges that this is so.

8 Mr. Robertson contended that the claimant is asking the Court to make an order in the terms indicated. He argued that it would not be prejudicial to the defendant who had notice and it would be in the interest of the administration of justice for the testimony of Mr. Sutherland to be adduced specifically in respect of how many sheet metals were on the land and their value. He submitted that assuming that the Court finds in favor of the claimant, hearing Mr. Errol Sutherland at this juncture would obviate the need for further assessment of damages.

9 Learned Counsel Mr. Robertson relied on Blackstone's Civil Practice 2009 Edition which I think is repeated and captured in the 2013 Edition of Blackstone's Civil Practice which I have. I will proceed to read from the top of that paragraph and not from where the claimant took their excerpt. It reads:

‘As a general rule of practice rather than law, a party should adduce all the evidence on which he intends to rely before the close of his case. The authorities [which are almost all criminal cases] indicate that there are two common law exceptions to the general rule and a wider discretion to be exercised outside the two exceptions only very rarely. Under the first exception evidence is allowed in the rebuttal of matters arising ex improviso.’ [para. 47.54, Blackstone's Civil Practice, 13th ed.]

10 This is not the exception on which the claimant relies. The exception on which the claimant relies is referred to immediately after and I shall quote the learned authors of Blackstone's Civil Practice where they state: [para. 47.54, Blackstone's Civil Practice, 13th ed.]

‘Under the second exception, the judge has a discretion to admit evidence which has not been adduced by reason of inadvertence or oversight.’ [para. 47.54, Blackstone's Civil Practice, 13th ed.]

11 This is the exception on which the claimant in this case relies. So the claimant is saying that Errol Sutherland was not called to testify as a witness due to inadvertence or oversight; that is what the Court must focus on in deciding whether or not to permit the claimant to recall Errol Sutherland to give evidence, not as an...