Audubon Holdings Ltd and Others v Treasure Island Company Ltd and Others

• Jurisdiction: British Virgin Islands
• Judge: d'Auvergne, J.
• Judgment Date: 07 November 2003
• Court: High Court (British Virgin Islands)
• Docket Number: CLAIM NO. BVIHCV2002/0227
• Date: 07 November 2003

IN THE HIGH COURT OF JUSTICE

CLAIM NO. BVIHCV2002/0227

BETWEEN

(1) Audubon Holdings Limited

(2) Norman Island Services Company Limited

Claimants

and

(1) Treasure Island Company Limited

(2) David Simms

(3)Valerie Simms

Defendants

Appearances:

Stephen Moverly-Smith Q.C. with him Jessica Chappell for the Claimants

Sydney Bennett Q.C. and Ms. Michelle Matthew for the First and Second Defendants

Gerard Farara Q.C. and Mrs. Tana'ania Small-Davis for the Third Defendant

RULING

d'Auvergne, J.

1 By order of Rawlins, J. dated the 20 ^th of May 2003 and entered on the 27 ^th day of October 2003, this case was scheduled for trial on the 3 ^rd to the 7 ^th of November 2003, and was later adjourned to the 4 ^th to the 7 ^th and the 10 ^th November 2003.

2 At the opening of the trial on 4 ^th November 2003, Counsel for the First and Second Defendants took a preliminary point in pursuance of Rule 29.11(1) of the Rules of the Civil Procedure 2000 (herein after referred to as CPR 2000).

Rule 29.11(1) of CPR 200 reads as follows:

‘If a witness statement or witness summary is not served in respect of an intended witness within the time specified by the court, the witness may not be called unless the court permits.’

and sub rule 2 provides:

‘The court may not give permission at the trial unless the party asking for permission has a good reason for not previously seeking relief under Rule 26.8.’

3 In order to appreciate the order sought and the ruling to be given, it is important that a summary of the case be noted.

4 The Claimants are claiming from the Defendants monies allegedly received by them as mooring fees collected from the 1 ^st day of October 2001 to date and also that the Defendants do provide statements and documents.

5 An inter partes hearing was heard on the 17 ^th of December 2002 and on the 17 ^th March 2003 Rawlins, J. gave directions for the trial of the matter. He ordered exchange of witness statements on or before 14 ^th May 2003 and the trial date was set for the 27 ^th–28 ^th July 2003. (I have been informed that the month of July was written in error and that it was meant to be May 2003.)

6 On the 14 ^th of April 2003 the Learned Judge gave a new order with regard to the witness statements. He extended the time. ‘Witness statements to be filed and served on or before 19 ^th May 2003’ and also fixed the matter for report on the 20 ^th May 2003.

7 On the 19 ^th of May 2003 Counsel for the Claimants wrote to the Registrar of the High Court. Letter is noted in its entirety.

‘Dear Madam

Case No. 227 of 2002

Audubon Holdings Limited v.

Treasure Islands Company Limited (2) David Simms (3) Valerie Simms

We write concerning the order of Mr. Justice Rawlins made in the captioned matter on 23 April 2003.

The Learned Judge ordered, inter alia, that the parties exchange witness statements by 4 p.m. 19 May. We stand ready to do so and have invited the other parties in this matter to confirm that they too are in a position to exchange.

Unfortunately, we have received no response to this effect from either of the other parties.

We therefore enclosed a sealed envelope containing our witness statements for the Judge's eyes only which we ask you please not to place on the Court file until exchange of statements is effected.

Yours faithfully

HARNEY WESTWOOD & RIEGELS

James Hilsdon’

8 On the 20 ^th of May 2003, the matter came on for report as was ordered. On that date it appears that the Defendants were not ready to exchange witness statements and their Counsel made oral applications for new directions and an adjournment of the trial. Rawlins, J. once more extended the time for the ‘filing and exchange of witness statements to Friday 25 ^th July 2003’ and also changed the trial date ‘This case is scheduled for trial on 3–7 November 2003.’ As stated earlier the case was later scheduled to start one day later.

9 It was submitted on behalf of the First and Second Defendants that on the 25 ^th of July 2003, the appointed date for filing and exchange of witness statements Counsel wrote to the solicitors acting on behalf of the Claimants. The letter reads, ‘This is to give notice that the witness statement of the First and Second Defendants in the above action were to be filed in the Registry of the High Court. Please confirm that you're in a position to exchange witness statements today.’

10 That three days later he received a letter from the Claimants' solicitors written by Mr. James Hilsdon which reads,

‘We refer to your letter of 25 ^th July regarding the exchange of witness statements. In light of the letter of Farara, George-Creque of the same date, attached, we suggest that exchange takes place on Thursday July 31 ^st as they suggest.’

11 Learned Counsel for the First and Second Defendants drew the Court's attention to Rule 26.7(3) which reads,

‘If a rule, practice direction or order

• (a) requires a party to do something by a specified date; and

• (b) specifies the consequences of failure to comply;

the time for doing the act in question may not be extended by agreement between the parties.

12 He said that the agreement between the Solicitors for the Claimants and the Solicitor for the Third Defendant was therefore in breach of Rule 26.7(3)(b) and therefore Rule 29.11(1)‘the witnesses for the Claimant may not be called unless the Court permits’ applied.

13 He further drew the Court's attention to Rule 29.11(2) which is unique to CPR 2000 and which states,

‘The Court may not give permission at the trial unless the party asking for permission has a good reason for not previously seeking relief under Rule 26.8 which provides

• (1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be

  • (a) made promptly; and

  • (b) supported by evidence on affidavit

• (2) The Court may grant relief only if it is satisfied that—

  • (a) the failure to comply was not intentional;

  • (b) there is a good explanation for the failure;

14 Counsel contended that Counsel for the Claimants did not have a good reason since he was precluded by Rule 26.7(3)(b) to extend by agreement between the parties and moreover, up to the present time no application for relief from sanction had been filed and therefore could not be said to have acted promptly.

15 Rule 29.4(3) states the following:

‘A party's obligation to serve a witness statement is independent of any other party's obligation to serve such a statement.’

16 Counsel reminded the Court that the First and Second Defendants had complied with Rule 29.7 (2)(a) and (b). That they had filed their witness statements in a sealed envelope at the Court Office on the date directed and had given notice to all other parties that the witness statements had been filed.

17 Counsel quoted from the Ruling of Barrow, J. in Kenton Collinson St. Bernard vs The Attorney General of Grenada et al, Civil case No. 84 of 1999 (Grenada) in which the Learned Judge emphasized that a defaulter must act promptly or otherwise suffer the consequences. The Learned Judge said, ‘the companion requirement to promptitude, that there must be evidence on affidavit, emphasizes the weightiness of satisfying the stated conditions and eliminates the old practice of Counsel merely trotting out an excuse from the bar table.’

18 It was further submitted on behalf of the First and Second Defendants that the reluctance to act noted in Hytec Information Systems Ltd. v. Coventry City Council (1997) 1 WLR 1666at 1671 was no longer adhered to.

19 In Vinos v. Marks & Spencer PLC 2001 3 All ER page 784at page 791 para 26. Peter Gibson L.J. had this to say:

‘The construction of the CPR, like the construction of any legislation, primary or delegated, requires the application of ordinary canons of construction, though the CPR unlike their predecessors, spell out in Pt 1 the overriding objective of the new procedural code. The court must seek to give effect to that objective when it exercises any power given to it by the rules or interprets any rule. But the use in r1.1 (2) of the word “seek” acknowledges that the court can only do what is possible. The language of the rule to be interpreted may be so clear and jussive that the court may not be able to give effect to what it may otherwise consider to be the just way of dealing with the case, though in that context it should not be forgotten that the principal mischiefs which the CPR were intended to counter were excessive costs and delays. Justice to the...