Electrical Associates Ltd v Sunrod Property Inc.

• Jurisdiction: St Lucia
• Judge: Ventose JA
• Judgment Date: 10 December 2024
• Neutral Citation: LC 2024 CA 20
• Docket Number: SLUHCMAP2024/0001
• Court: Court of Appeal (Saint Lucia)

Between:

[1] Electrical Associates Limited

[2] Marcellinus Stephen Trading as Ms Stephen Tiling

Appellants

and

Sunrod Property Inc.

Respondent

Before:

The Hon. Mr. Mario Michel Chief Justice [Ag.]

The Hon. Mr. Eddy D. Ventose Justice of Appeal

The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

SLUHCMAP2024/0001

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Interlocutory Appeal — Expert Report — Part 32 Civil Procedure Rules 2000 (CPR) — Application to strike out expert report on the basis that the report breached the provisions of CPR Part 32 — The court's case management powers — Part 26 Civil Procedure Rules (Revised Edition) 2023 — Whether the learned trial judge erred in the exercise of her discretion by striking out the expert report — Whether the learned trial judge erred in not hearing the amendment application — Whether the learned trial judge erred in not allowing the appellants to amend the expert report

Held: allowing the appeal against the decision of the learned trial judge, setting aside paragraph [2] of the Order, ordering that within 21 days of the date of this judgment, the Expert shall file and serve an amended Expert Report to comply with CPR Part 32, failing which the Expert Report shall stand struck out without further order of this Court, and ordering that the appellants shall have their costs in this Court to be assessed if not agreed within 21 days of the date of this judgment, that;

• 1. In striking out the Expert Report, the learned trial judge deprived herself of the opportunity to benefit from an expert report that is meant to assist the court in resolving the dispute between the parties. Striking out should not be the first step when there is a breach of CPR Part 32. The draconian response of striking out should only occur in certain circumstances. Where there is continuous noncompliance or there is a weak case, the court is open to striking out. Striking out should be considered particularly in cases where the impartiality of the expert is in question. Where the party is granted previous opportunities to remedy deficiencies in expert reports, but failed to do so, the court would conclude that the justice of the case would require striking out. Accordingly, these circumstances did not arise in the instant case.

  Barbara Campsell (also known as Barbara Daniel) v David Sookwa SLUHCVAP2014/0018 (delivered 19th February 2016, unreported) applied; N.E.M (West Indies) Insurance Ltd. v Strisiver, Ashraph and Mhc (2000) Ltd. TT 2013 CA 4 applied; R (on the application of Good Law Project Ltd.) v Secretary of State for Health and Social Care [2021] EWHC 2595 (TCC) applied.

• 2. Out of the nine (9) deficiencies identified by the learned trial judge at paragraph [16] of the Order, four (4) of them are not established and the other five (5) are not so “substantial” or “egregious” that they cannot be cured by allowing the appellants an opportunity to remedy the deficiencies to file and serve an amended Expert Report, with an appropriate unless order to require compliance. In any event, the court still retains the power on application by the other party to strike out any revised Expert Report if it still does not comply with any order made by the court. The nature of the five (5) deficiencies did not justify recourse to the draconian power of striking out. To the extent to which the learned trial judge relied on the four (4) alleged breaches in arriving at her decision to strike out the Expert Report, the learned trial judge, was influenced by irrelevant factors and considerations. As a result of the error or the degree of the error in principle, the learned judge's decision exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong.

  Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 TCC applied; Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 applied.

• 3. There is no doubt that the decision of the learned trial judge in striking out the Expert Report was a case management decision. Although it has often been stated by this Court that an appellate court would not easily interfere with a case management decision of a judge or master, it is now settled law that it is inappropriate for an appellate court to interfere with a case management decision unless it was “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree”. Under the court's general case management powers in CPR 26.1, the court is granted the power under CPR 26.1(w) to make an unless order specifying the consequences of any failure to comply with any rule, practice direction, or order. Rather than striking out, in an appropriate case it is open to the court to require the party in breach to remedy the deficiencies by a specific date, failing which the expert report would be struck out. It will only be in the rarest of cases and for good reason would the court exclude expert evidence that is designed to assist it. Therefore, the learned trial judge ought to have given the appellants the opportunity to remedy the breaches rather than outrightly striking out the Expert Report.

  Rules 26.1 and 26.1(w) of the Civil Procedure Rules (Revised Edition) 2023, applied; Employers International et al v Boston Life and Annuity Company Ltd. British Virgin Islands Civil Appeal No. 5 of 2007 (delivered 6th November 2008, unreported) applied; Sergey Taruta v JSC VTB Bank BVIHCMAP2021/0002, BVIHCMAP2021/0008, BVIHCMAP2021/0012 (delivered 2nd June 2021, unreported) applied; Julian Svirsky et al v Arman Oyekenov et al BVIHCMAP2022/0064 (delivered 12th February 2024, unreported) applied; Real Time Systems v Renraw Investments Limited [2014] UKPC 6 followed.

• 4. It is proper procedure for applications to be dealt with in the order that they are filed. The Strike out Application was filed on 7 ^th August 2023 and the Amendment Application was filed on 22 ^nd November 2023, one day before the hearing of the Strike out Application on 23 ^rd November 2023. Given the timeliness for the respondent to have replied to the Amendment Application in accordance with CPR 11.12, it is patently clear that the Amendment Application could not have been heard on 23 ^rd November 2023.

  Rule 11.12 of the Civil Procedure Rules (Revised Edition) 2023 applied; St. Kitts Nevis Anguilla National Bank v Caribbean 6/49 Limited Saint Christopher and Nevis Civil Appeal No. 6 of 2002 (delivered 31st March 2003, unreported) applied.

Appearances:

Ms. Wauneen Louis-Harris for the Appellants

Ms. Vanessa Pinnock for the Respondent

Ventose JA

1 The is an appeal against the decision of the learned trial judge striking out the report of the expert witness filed by the appellants in proceedings in the court below.

Background

2 The appellants filed a claim form and statement of claim on 11 ^th October 2018 in which they claimed against the respondent, damages for breach of contract for conducting electrical and tiling works for the completion of Harbor Club Hotel, a project of Harbor Club Ltd. (previously the second defendant in the court below). The respondent filed a defence and counterclaim on 15 ^th February 2019 in which it denied that there were any sums owing to the appellants and that it was the appellants who were liable to the respondent for breach of contract. The appellants filed their reply to the defence and their defence to the counterclaim on 5 ^th March 2019.

3 The appellants applied for an extension of time to file an expert report, and the application was granted by the court on 13 ^th March 2023. The respondent applied on 28 ^th March 2023 for leave to appeal that decision, but this Court refused leave to appeal on 19 ^th April 2023. The appellants filed their application to appoint an expert witness on 24 ^th March 2023 and on 4 ^th May 2023 the court made the following orders:

• “1. … Ms. Margaret Anne F. Antoine Charles, Quantity Surveyor, with expertise in Construction Management, is hereby appointed an expert witness for the purpose of these proceedings.

• 2. The Expert's Report will address the following matters:

  • (i) What was the role of the Quantity Surveyor within the context of the respective contracts between the parties, in relation to the Harbor Club Project (“the project”). Who employed the Quantity Surveyor and to whom was the Quantity Surveyor accountable. Did the Quantity Surveyor maintain records for the duration of the project and who is entitled to keep or have access to such records.

  • (ii) Did the first claimant execute electrical works to the value of the amount claimed, during the period December 2017 to February 2018, and whether such works were in conformity with the industry standard for electrical works of the kind to be undertaken by this claimant, under the respective contract.

  • (iii) Did the second claimant execute tiling works to the value of the amount claimed, during the period December 2016 to February 2018, and whether such works were in conformity with the industry standard for tiling works of the kind to be undertaken by this claimant, under the respective contract.

  • (iv) Based on the industry standard, was the defendant required to undertake corrective works in relation to the works undertaken by the respective claimants, and what was the value of any corrective works undertaken, in relation to each claimant.

  • (v) Were there any delays in meeting the contractual dates for completion under the respective contracts. If yes, by whom, and what was the cause and duration of such delays. Can such delay be quantified in monetary terms based on the respective contracts, and if not, what is the appropriate industry standard for doing so.

• 3. The Expert will provide her Report to the claimants within 45 days of the date of this order.

• 4. The claimants will file and serve the Report within 50 days of...