Frederick v Anthony

• Jurisdiction: St Lucia
• Judge: Mitchell, J.A.
• Judgment Date: 08 August 2013
• Neutral Citation: LC 2013 CA 4
• Docket Number: SLUHCVAP 2 of 2013
• Court: Court of Appeal (Saint Lucia)
• Date: 08 August 2013

Court of Appeal

Mitchell, J.A.

SLUHCVAP 2 of 2013

Frederick

and

Anthony

Appearances:

Mr. Horace Fraser for the appellant

Mr. Peter I. Foster, Q.C. for the respondent

Civil practice and procedure - Appeal from a case management order granting relief from sanctions — Respondent's attorney failed to file witness statements by a certain date as directed — Attorney was ill and clerk failed to file witness statements as instructed — No sanction imposed for failure to meet the deadline — Whether the judge erred in law by exercising her discretion in relation to the application for relief despite failure to satisfy the mandatory requirements of CPR 26.8(1) and (2).

1 Mitchell, J.A. [AG.]: This is an appeal from a case management order made by Wilkinson, J. on 14th January 2013 in a defamation suit before her in the High Court in Saint Lucia. It has been passed to me to deal with as a single judge of the Court pursuant to rule 62.16(1) of the Civil Procedure Rules 2000.

2 The respondent's attorney failed to comply with the master's earlier direction to file witness statements by a certain date. There was unchallenged medical evidence had been ill and receiving hospital treatment just before the date Lad given instructions to her clerk to file the witness statements. The clerk had placed them in the client's file instead of filing them at the Court House. When the attorney returned to work no one brought to her attention the fact that the witness statements had not been files and served as instructed. As the date for the filing of the pre-trial memorandum approached, she telephoned the attorney for the appellant to agree the terms of the memorandum, it was only then that the attorney for the appellant pointed out to her that she had not filed and served the witness statements as earlier directed. She discovered that the witness statements had been placed on the client's file instead of being filed in the court as she had instructed before she became hospitalised. Counsel for the appellant did not accept her explanation, and did not agree to her filing and serving the witness statement late. She had then, seven months late, and one day after learning that the statements had not been filed and served, filed the witness statements in the court office and applied for relief from sanctions. Her application was resisted.

3 The learned trial judge considered the implications of CPR 29.11 ( 1), CPR 26.8 and CPR 26.12 and the fact that there had been no sanction imposed by the master for failure to meet the deadline. She considered the authorities of Dominica Agricultural and Industrial Development Bank v. Mavis Williams, Commonwealth of Dominica, High Court Civil Appeal DOMHCVAP2005/0020 (delivered 29th January 2007, unreported). Pendragon International Limited et al v. Bacardi International Limited, Anguilla, High Court Civil Appeal AXAHCVAP2007/0003 (delivered 23rd November 2007, unreported). C. O. Williams Construction (St. Lucia) Limited v. Inter-Island Dredging Co. Ltd., St. Lucia, High Court Civil Appeal SLUHCVAP2011/0017 (delivered 19th March 2012, unreported) and Irma Paulette Robert qua Administratrix of the Estate of her minor son Jermal aka Jamal Robert [deceased] v. Cyrus Faulkner et al, St. Lucia, High Court Civil Appeal SLUHCVAP2007/0029 (delivered 25th October 2007, unreported). She also considered the failure of the respondent's affidavit to comply with CPR 30.3 in several ways, which she detailed, but which are not relevant to this appeal. She weighed the various factors she was called on to weigh in coming to her decision, she noted that, if the attorney for the appellant had agreed to the late filing of the witness statements, it would still have been possible to meet the trial date. She was satisfied that the application for relief had been...