Percival Stewart Claimant v Harlequin Properties (Caribbean) Ltd Harlequin Properties (SVG) Ltd Ridgeview Construction (SVG) Ltd Defendants
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 19 March 2015 |
| Judgment citation (vLex) | [2015] ECSC J0319-2 |
| Court | High Court (Saint Vincent) |
| Date | 19 March 2015 |
| Docket Number | HCVSVG2009/0343 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HCVSVG2009/0343
Henry, J.(Ag.): Mr Percival Stewart, an elderly man,ii initiated action in the court on October 20th, 2009 to recover damages against the Harlequin Properties (Caribbean) Limited ("Harlequin Caribbean"), Harlequin Properties (SVG) Limited ("Harlequin SVG") and Ridgeview Construction (SVG) Limited ("Ridgeview"). Mr Stewart's claim arises out of injuries he allegedly sustained while employed by Ridgeview. He alleges that Ridgeway is Harlequin Caribbean's and Harlequin SVG's agent.
A case management order made on September 25, 2012 ordered the parties, among other things, to file witness statements on or before March 30, 2013. None of the parties complied with that order. Mr Stewart's subsequent application for extension of time to file his witness statements was granted.iii He now applies for summary judgmentiv against the Harlequin Caribbean and Harlequin SVG who both filed a joint cross-application seeking an extension of time to file their witness statement.v
The issues which arise for consideration are:
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I. Whether the court should make an order for summary judgment against Harlequin Caribbean and Harlequin SVG? and
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II. Whether Harlequin Caribbean and Harlequin SVG should be granted an extension of time to file their witness statement?
Although Mr Stewart's application preceded that of Harlequin Caribbean and Harlequin SVG, a favourable disposition of Mr Stewart's application would render the other application moot. In the normal course of proceedings, Mr Stewart's application would be considered first. However, the court remains mindful of its duty to deal with cases justly by ensuring that each party is afforded an equal opportunity to ventilate its case. In the circumstances of this case and in furtherance of that objective, I have decided that determination of the second issue logically should precede the first. They are accordingly considered in that order.
The application was filed on January 9, 2015, over 33 months after the final date ordered for filing witness statements. It is supported by affidavit of Mr Samuel Everson Commissiongvi who was on record as Counsel for Harlequin Caribbean and Harlequin SVG up until January 13, 2015.vii No application or order was made for removal of Mr Commissiong as Counsel, or for another legal practitioner to replace him prior to that date, although both the Notice of Application and Affidavit are endorsed with the name of the Law Firm P. R. Campbell & Co. In any event, Mr Commissiong deposes that he has been involved in the proceedings from their inception and is aware of the facts which have impeded its progress. He explains that Harlequin SVG is the holding company for Harlequin Caribbean and that one Mr Dave Ames is the sole director for both companies.
He also explains that he and Mr Ames are the only two persons connected to Harlequin SVG who could or can provide a witness statement because all others have left the country. Mr Commissiong deposes that Mr Ames lives in England and travels a lot globallyviii making it difficult for him to be in Saint Vincent to testify. Implicit in Mr Commissiong's averments is the notion that for those reasons, it was impossible or extremely difficult to contact Mr Ames, receive instructions from him, or arrange for him to sign a witness statement. I make the observation that the CPRix permits a party to file and serve a witness summary if he is not able to provide a witness statement, and that a witness does not need to be in the jurisdiction to sign or attest either document. Mr Commissiong adds that Mr Ames did in fact make a witness statement which was signed and filed on October 30, 2013. No explanation is given why an extension of time was not sought to file it. He explains that as the dates for the case drew near he realized that Mr Ames might not be able to come to Saint Vincent and the Grenadines to testify so he made a decision to retain Mr Campbell to present the case and he would give the evidence instead. This deponent did not indicate when he realized this nor when he made the decision to appoint Mr Campbell. Accordingly, that information cannot be factored into the court's consideration. The court notes too that it appears that no consideration was given to Mr Ames testifying via video link which is permissible.x
Mr Commissiong indicates that Mr Campbell was brought into the case late and the decision was taken on his advice to apply for extension of time to file the witness statement. He avers further that he was trying his best to comply with court orders to file witness statement and acted on the advice of counsel. No dates were provided of when this advice was received but from the record, it could not have been much before January when the application was made. Suffice it to say, this advice appears not to have been given or taken before January 2015, some 5 years after the case management order. No evidence was provided on this very important point. Mr Commissiong avers also that there was no willful intention to flout the Orders of the court and he includes in his affidavit a request for relief from sanctions, which is noticeably absent from the Notice of Application.
The CPR vests the court with broad discretion to grant extension of time in general and particularly to secure parties' compliance with court orders.xi Usually, a party seeking extension of time to file a witness statement must make an application before that date.xii The instant application was made long after the deadline date and consequently runs afoul of the general rule. Such an application must include a prayer for relief from sanctions.xiii Harlequin Caribbean's and Harlequin SVG's application does not include such a prayer, although a request is mentioned in Mr Commissiong's affidavit.xiv This failure is detrimental to the Harlequin companies' application.
An applicant is also required to provide affidavit evidence in support of an application.xv While an affidavit was filed in support of the instant application, it is quite troubling that it is attested to by counsel who at the time of making and filing it was still on the record for Harlequin Caribbean and Harlequin SVG. Without his affidavit, there is no evidence to support the application. Harlequin Caribbean and Harlequin SVG contend that there is no absolute bar against any counsel making a witness statement and being a witness in a matter in which he is appearing as counsel. They argue that the bar is against him appearing as counsel at the trial. They submitted further that up to the date of trial, another counsel could prosecute the matter with the former counsel acting as witness. These submissions conflict with the position adopted by the Eastern Caribbean Supreme Court.xvi In fact, the Court of Appeal has repeatedly denounced the practice of a legal practitioner testifying in a matter in which he appears.xvii This is a cardinal error which cannot be countenanced by the court.
As noted by George-Creque, J.A. (as she then was), "It is well settled and accepted that it is most undesirable for counsel with conduct of a matter or application to swear an affidavit in that matter… it amounts to giving evidence from the bar table – an unacceptable and wholly inappropriate practice."xviii Harlequin Caribbean and Harlequin SVG have subsequently filedxix a list of Commonwealth authoritiesxx without commenting on them. The majority of the authorities submitted by Harlequin Caribbean and Harlequin SVG on this issue accord with the pronouncements by the Court of Appeal. In the Cork, Eastern Divisioncase,xxi from the Queen's Bench Division and in some of the Canadian cases,xxii the attorney retired from the case and was called as a witness, without sanction or disapproval. However, in the majority of the cases, the court invariably held that it was undesirable and/or objectionable for counsel to appear in a case both as advocate and witness. While the court will take note of the authorities from elsewhere in the Commonwealth, they are not binding on the court in this jurisdiction. The decisions of the Eastern Caribbean Court of Appeal which are binding will accordingly be applied. The fact remains that when the witness statement was filed, Mr Commissiong was the attorney for Harlequin Caribbean and Harlequin SVG. Moreover, the instant application is supported by affidavit sworn to by Mr Commissiong while he was on record as counsel for Harlequin Caribbean and Harlequin SVG. The court cannot ignore this glaring departure from proper practice. To do so would be to set a dangerous precedent, contrary to appellate judicial pronouncements.
When considering an application for extension of time, the court must give effect to the overriding objective of the CPR, to deal with cases justly.xxiii The court must also have regard to the (1) nature of the failure, (2) length of the delay in respect of which relief is being sought (3) reasons for the delay, (4) effect of the delay, (5) degree of prejudice to the parties if the application is granted;xxiv and any other relevant matters which arise from the surrounding circumstances, including any Practice Directions or Rules.xxv
Harlequin Caribbean's and Harlequin SVG's witness statement was filed 4 months after the filing deadlinexxvi and without a court order granting an extension of time. The witness statement was made by Samuel Everston Commissiong, the only...
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