Dave Crosby v Teval Thorne

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE SVGHCV2019/0060 BETWEEN DAVE CROSBY of Cane Garden, St. Vincent CLAIMANT AND TEVAL THORNE of Redemption Sharpes, St. Vincent st DEFENDANT AND MARIA LOUISE THORNE of Redemption Sharpes, St. Vincent nd DEFENDANT Appearances : Mr. Michael Wyllie and Ms. Vynnette Frederick of counsel for the claimant. Ms. Samantha Robertson and Ms. Charmaine Walters of counsel for the defendants. —————————————— 2019: Sept. 25 Nov. 12 ——————————————- DECISION BACKGROUND

[1]Henry, J.: Mr. Dave Crosby has brought this claim against Mr. Teval Thorne and Ms. Maria Thorne for among other things, possession of certain lands at Retreat in the State of Saint Vincent and the Grenadines. He filed his claim on March 25 th 2019. At the first hearing on May 15 th 2019, the Thornes were present but unrepresented. They had not yet filed an acknowledgement of service and Mr. Crosby had filed no proof of service.

[2]The Thornes indicated that they had received the Fixed Date Claim Form. They were granted an extension of time to file their acknowledgement of service and defence [1] . No sanctions were prescribed in the order for non-compliance with those timelines. The matter was adjourned to 26 th June 2019 for case management. The Thornes filed a joint acknowledgement of service on May 29 th 2019. They have been represented by legal practitioner Ms. Samantha Robertson from that date.

[3]Case management directions were issued on June 26 th 2019. By then, the deadline for filing of the defence had passed. The order included timelines for filing of standard disclosure and witness statements. It contained a stipulation that non-compliance with the timelines would attract wasted costs sanctions. The trial date was scheduled for November 12 th and 14 th 2019 (in the June 26 th order). Liberty was granted to the parties to apply for changes to the case management timetable.

[4]The parties complied with the directions for filing of standard disclosure [2] and witness statements [3] . The defendants filed their defence and counterclaim (‘defence’) on September 12 th 2019, one and a half month [4] after the deadline for filing. They filed their witness statements on the same date. Mr. Crosby also filed his witness statements that day.

[5]The Thornes filed a Notice of Application on September 12 th 2019 in which they sought an order extending the time to file their defence and for relief from sanctions. Mr. Crosby opposed the application. On 17 th September 2019, he filed an application to strike out the Thorne’s Defence for their failure to comply with the court’s timeline for filing.

[6]Mr. Crosby contended that he is prejudiced by the late serving of the defence because he had already served his witness statements and would therefore have been deprived of the opportunity to properly prepare his case in light of what is contained in the defence. The matter was adjourned for decision but did not come on for hearing before the trial date [5] . On that day, Mr. Crosby submitted further that there were irregularities in the filing and service of the Thornes’ application which should result in it being dismissed.

[7]The Thornes contended that they failed to file their defence within the time limited by the court because of impecuniosity. They argued that their application was validly filed and served and has not been invalidated by any procedural irregularity as alleged. For the reasons set out below, their application is granted. Mr. Crosby’s application is granted in part.

ISSUES

[8]The issues are: Whether Teval Thorne’s and Maria Thorne’s application for extension of time to file their defence and relief from sanctions should be granted? and Whether Teval Thorne’s and Maria Thorne’s defence should be struck out? Preliminary issues

[9]Mr. Crosby contended that because of the irregularities which arose with the filing and service of the Thornes’ application, not only was it irregular, but it was also preceded by his application to strike out the defence and counterclaim. This argument appears to be circuitous since the defence and counterclaim must be validly filed and served, or so deemed before an application to strike out can be entertained by the court. Until such time, it would merely be ‘a proposed defence and counterclaim’. It follows that consideration of the Thornes application must precede Mr. Crosby’s. ANALYSIS Issue 1 – Should Teval Thorne’s and Maria Thorne’s application for extension of time to file their defence and relief from sanctions be granted?

[10]The Court has broad discretion to grant an extension of time for a party to comply with a court order. [6] Such a party is required to file his or her application before the deadline for compliance. [7] In exercising any discretion conferred by the CPR the court must give effect to the overriding objective which is to deal with cases justly. [8] The Thornes’ application was late, having been filed after the deadline stipulated by the court. The CPR mandates that a tardy application include a prayer for relief from sanctions [9] . In this regard, the Thornes were compliant with the rules.

Procedural irregularity

[11]It is useful to introduce the allegations of procedural irregularity at this juncture to provide context. Mr. Crosby alleged that when the Thornes’ Notice of Application was presented for filing on September 12 th 2019 it was incomplete in that it did not contain the final page on which the date and time of the hearing were to be inserted by the court office (‘date page’). He contended that the filing clerk accepted it nonetheless, processed it and issued it for service in that fashion. His witness Tevin Bynoe testified to this effect. Mr. Bynoe deposed [10] that he is employed by Fredericks Attorneys, Mr. Crosby’s lawyers. He recalled that on that day he was at the court office just before 3.00 p.m. filing documents in this case.

[12]He stated that while there he encountered Ms. Andrea John who was filing documents in the same action on behalf of the Thornes. Ms. John is an employee at Robertson and Robertson law firm which represents the Thornes. Mr. Bynoe averred that Ms. John handed him the impugned Notice of Application for extension of time, after it was filed and returned to her by the filing clerk Ms. Thaís Barrow. He said that he signed the back page. He recalled that at that point Ms. Barrow told Ms. John that she could not serve the document on him because it did not contain the date page.

[13]He claimed that Ms. John took the Notice of Application from him and returned it to Ms. Barrow who offered to keep it until Ms. John returned with the missing page. He said that he told Ms. John to redact his signature from the back sheet of the document because he had not received it. He indicated that he did not know if she did so. He said that he served some documents on Ms. John in the same matter and left the court. Mr. Bynoe testified that on September 17 th 2019 he went to Robertson & Robertson chambers to serve the Notice of Application to strike out the defence. He stated that after serving it on Ms. John, she gave him a Notice of Application which appeared to be the one he had signed on September 12 th 2019. He noticed that it bore his signature where he recalled signing it on September 12 th 2019.

[14]Ms. John testified. She admitted that when she presented the Notice of Application to Ms. Barrow for filing it did not have the date page attached. She stated that she lodged and filed it; that it was handed back to her whereupon she served it on Mr. Bynoe [11] . She deposed further that Mr. Bynoe affixed his signature to it, at which point Ms. Barrow told her that the Notice of Application was missing the date page. She admitted that she retrieved the Notice of Application from Mr. Bynoe, handed it back to Ms. Barrow and went back to her office to retrieve the missing pages.

[15]She averred that a few minutes later she returned to the court office with the missing pages which she gave to Ms. Barrow to insert in the Notice of Application, which she did. She explained that Ms. Barrow inserted the date and name of presiding judge on the date page and returned the Notice of Application to her. Ms. John testified that she then handed the complete Notice of Application to Mr. Bynoe who was still in the court office. Mr. Bynoe denied this. He insisted that he was not at the court office when Ms. John returned.

[16]Under-cross-examination by learned counsel Mr. Wyllie, Ms. John was insistent that she did not serve Mr. Bynoe with the Notice of Application until she had returned from the office after retrieving the missing pages. She claimed that the Notice of Application was not filed until after the missing page was inserted and completed by the clerk. She stated that before returning to her office she asked Mr. Bynoe if he would wait and accept service of her documents at that time and he agreed. She was adamant that Ms. Barrow filed the Notice of Application only after she returned and only then did she serve Mr. Bynoe. She contradicted herself by changing important details as outlined in her affidavit. She is therefore not a credible witness.

[17]Ms. Barrow was also called. She deposed that Ms. John filed a number of documents that fateful afternoon including the impugned Notice of Application and supporting documentation. She testified that all of those documents except the impugned Notice of Application received the time stamp 2.51 p.m. while the notice of Application and supporting documentation received the time stamp 2.55 p.m. The court’s case file was shown to her and she was asked to flag them. As it turned out, only the witness statements filed by Mr. Bynoe on Mr. Crosby’s behalf contained the time stamp of 2.51 p.m. All of those filed by Ms. John contained the time stamp 2.55 p.m. Ms. Barrow conceded that her recollection was faulty.

[18]She testified that she did not file the Notice of Application until Ms. John returned with the missing page. She averred that she pointed out to Ms. John that it was incomplete and offered to retain the documents until Ms. John returned from her office with the missing pages. She insisted that only she then did she file the Notice of Application and give it the time stamp 2.55 p.m. She said that she was present when Ms. John served Mr. Bynoe with the Notice of Application. She recalled that both Mr. Bynoe and Ms. John served documents on each other before leaving the court office. This account mirrors Ms. John’s evidence under cross-examination.

[19]Significantly, Ms. John did not seek to correct any of the averments in her affidavit by indicating that they were erroneous or otherwise misleading. She gave no explanation why she provided two different accounts to the court about what happened. Where he written sworn recollection coincides with Mr. Bynoe’s. I accept that account. It is clear that there were irregularities in the manner in which the filing and service of the referenced Notice of Application took place.

[20]It strikes me that the incomplete application should have been returned to Ms. John and not filed or retained by the clerk until it was presented in the prescribed format. If as asserted by Mr. Bynoe, it was served on him and then returned to the filing clerk for correction this should not have occurred, for obvious reasons. Mr. Bynoe’s account was persuasive and consistent. I believe him. Before moving on, I make the observation that service of documents on the court’s premises is prohibited and should be discontinued.

[21]Mr. Crosby argued that the CPR must be followed in order to have regularity and certainty in these proceedings. He submitted that the court should find that the impugned Notice of Application was served on September 17 th 2019 when Mr. Bynoe obtained it from Ms. John. He contended that he in all the circumstances, his application for the defence and counterclaim to be struck out was made before the Thornes filed their application for extension of time. He reasoned that his case is highly prejudiced because the trial date would be affected.

[22]Mr. Crosby argued that if there is a procedural irregularity, there is no defence because it was not filed on time and the application for relief from sanction and was also not filed on time. This argument is fallacious. He submitted further that due to the procedural irregularity, the Thornes’ notice of application should be ‘dispensed with’.

[23]For practical and legal purposes, the Thornes’ defence does not become part of the pleadings unless it is validated by an order ‘deeming’ it to be properly filed. The proposed defence is not regularized merely by the filing of the application for extension of time to file it. Further, if the impugned application is a nullity by reason of the procedural irregularity, as the Thornes argue, Mr. Crosby’s application to strike out the defence would have no objective basis, since there would be no defence to strike out.

[24]Neither party asserted that the substance of the Notice of Application which Mr. Crosby’s lawyers received was materially different from the incomplete version that was presented to the court on September 12 th . Mr. Crosby does not assert that he has been placed in any insurmountable jeopardy by virtue of that application and being required to respond to it. He did not seek to alert the court of this until the trial date. An earlier complaint could have resulted in steps being taken to have the Application presented de novo, for good order.

[25]In face of the highlighted procedural irregularity, is the Notice of Application thereby invalidated? It bears the court’s stamps on its face. Ms. Barrow who is employed by the court accepts that she issued it during the course of her duties. There is no proven allegation that it is a forged or unauthentic document. This court must and does frown on the apparent cavalier manner with which the filing was approached. However, it must seek to give effect to the overriding objective in all of the circumstances.

[26]A failure to comply with established procedure, a rule, practice direction or court order does not invalidate a procedural step [12] . In instances where a procedural error has taken place, the court may make an order to rectify it, if no consequence for such default has been specified in the rule, practice direction or court order [13] .

[27]The CPR provides that filing of a document may be effected by delivering it to the court office where the claim is proceeding [14] . It is filed on the day of receipt at the court office . The CPR prescribes the form of a Notice of Application [15] . The prescribed forms must be used in the cases to which they apply and must not be varied by omitting any information or guidance specified in the Appendix [16] . These rules contain no penalty for non-compliance.

[28]An order rectifying the related procedural irregularity with respect to the filing and service of the impugned Notice of Application is appropriate and just. I am satisfied that Mr. Crosby would not be unduly prejudiced by such an order. It is therefore declared that the Notice of Application, affidavit in Support and supporting documentation filed by Teval Thorne and Maria Thorne are not invalidated and are deemed to have been duly filed on 12 th September 2019.

[29]In her affidavit in support of the application, Ms. Thorne deposed that she works as a farmer and as a street vendor. She did not say whether her brother is employed. However, she averred that they were financially unable to fully retain their lawyer before September 6 th and 11 th 2019 respectively, due to their lack of resources. She asserted that their application is prompt having been made soon after they paid their lawyer. She averred that Mr. Crosby will suffer no hardship if time is extended. She opined that the trial dates can still be met. She attested that she and her brother Teval Thorne have complied with all other orders of the court and have a great chance of successfully defending the claim against them.

[30]Mr. Crosby submitted that the Thornes have provided no proof of their alleged impecuniosity and further that it is not a sufficient reason for their failure to file their defence within the stipulated timeline. He argued that they have not satisfied the mandatory requirements to qualify them for relief from sanctions. He relied on the cases of Daphne Simmons v Wendella Rav [17] and Iona Truica v Remus Truica et al [18] where the learned Master and Judge respectively ruled that evidence of impecuniosity was inadequate in both cases.

[31]The Thornes cited the case of John Rose v Anne Rose [19] . They argued that in exercising its discretion the court should take into account all of the circumstances which contributed to their tardy filing. They submitted that the delay was a mere 10 weeks and 6 days and was not inordinate. They reasoned that they always intended to defend the claim. They contended that Mr. Crosby will not be prejudiced if their application is granted because he has been served with their defence.

[32]They argued further that the CPR provides no sanction for failure to file a timely defence and merely requires that they apply for an extension of time to do so. They cited the decision in Attorney General v Keron Matthews [20] where the Board declared that the CPR contains no provision which prohibits a defendant from filing a defence (after the deadline) without permission from the court. The Board was at the time considering provisions of the Trinidad and Tobago CPR, which are similar to the CPR in this jurisdiction. It determined that the CPR contains no express sanction for such default.

[33]In evaluating the Thornes’ application, the court must consider the length of and the reasons for the delay; effect of the delay; the nature of the failure; and the degree of prejudice to the parties if the application is granted or denied and any other relevant matters which arise from the surrounding circumstances, including any Practice Directions or Rules. [21] Length of and reasons for delay

[34]The delay has not been unduly long, comparatively speaking. The CPR [22] provides that the time prescribed in any rule or a Practice Direction for filing of documents does not run in the long vacation. The deadline under consideration was not prescribed in the CPR but by court order and in any event, it had elapsed by the time the long vacation started. The referenced rule is therefore of no assistance to the Thornes. The date on which they filed their defence not only missed the deadline by several weeks, it coincided with the date by which the parties were required to file their written testimony. The Thornes filed their witness statements on that day as did Mr. Crosby.

[35]In those circumstances Mr. Crosby and his witnesses did not have the benefit of the Thornes’ defence and counterclaim when they prepared their testimony. They were therefore deprived of the opportunity to review it, conduct inquiries and undertake research to provide a comprehensive response to any assertions in it, (in their own timely witness statements). Further, Mr. Crosby had no chance to file a defence to the counterclaim in advance of the timeline for placing his evidence before the court. He would thereby have been prejudiced unless further directions were given in advance of the trial dates, to validate the Thornes’ defence and enable Mr. Crosby to file a defence and further evidence in answer to the ancillary claim. This has not taken place.

[36]The Thornes have provided no documentary evidence of their alleged impecuniosity. Their bare assertion, without more, leaves much to be desired. In this regard, I agree with Mr. Crosby’s submission. While the delay is not inordinate, its knock-on effects must be factored into consideration of the application. Furthermore, the Thornes have provided no reason why they did not themselves approach the court much earlier and file some documentation even by way of a letter to bring those matters to the court’s attention. I do not accept that their reason for inaction is substantial, reasonable, justifiable or established.

Effect of the delay and prejudice

[37]Two days were set aside for the trial in this matter. Those dates were known to the parties for several months. They must surely have appreciated that they had a duty to inform the court as soon as possible if they were unable to meet them. The Thornes have failed to do so. One would have thought that they would have known in June that they did not have the means to retain a lawyer, and in view of the looming trial dates, way before September 2019. An early notification would alert the court to re-schedule the trial if necessary and so make optimum use of those dates for other matters.

[38]In giving effect to the overriding objective, the court remains mindful of its duty to utilize and manage the court’s scarce resources in an efficient and effective manner. This entails proceeding with trials on the reserved dates unless there is good reason not to do so. If the Thornes’ application is granted, Mr. Crosby would be entitled to apply for and be granted time to file a defence to the counterclaim. This might necessitate the filing of additional witness statements.

[39]An examination of the defence and counterclaim reveals that the defence appears largely to be a refutation of the factual and legal contentions in the Fixed Date Claim Form. The parties did not address those matters in their written submissions. They were invited to and did so at the hearing on November 12 th 2019.

[40]Mr. Crosby acknowledged that the Thornes’ have largely offered opposing factual assertions in response to his. He argued that they have also introduced an issue of trusts [23] ; a factual contention about the description of the disputed land [24] ; uncertainty as to whether the Thornes are relying on a Will or the doctrine of adverse possession to ground their ‘claims’ to possess the land [25] ; whether the land is allegedly vested in a personal representative of a deceased person [26] ; other factual assertions [27] ; and the practice and procedure to be employed by a surveyor [28] .

[41]Mr. Crosby conceded that he would be able to respond appropriately to the referenced factual assertions by amplification of his proposed evidence and that of his witnesses. He accepted that he could also satisfactorily address the trusts issue and other legal contentions arising from the draft Defence, by legal submissions. He acknowledged that there would be no need for him to file a defence to counterclaim if there was none.

[42]The Counterclaim adds nothing much to the ‘defence’ and seeks only a declaration – a discretionary order which the court may grant even without a counterclaim [29] . It appears to me that if the defence is deemed to be properly filed, the trial may proceed on schedule with little or no prejudice to Mr. Crosby and no unfair advantage to the Thornes. If the Counterclaim is retained as part of the pleadings, without affording Mr. Crosby the opportunity to file a defence, he would suffer a grave injustice. This is because the Thornes would be able to successfully argue that Mr. Crosby has admitted that they are entitled to the relief sought in their counterclaim. Such an outcome in present circumstances would be contrary to the overriding objective.

[43]In light of the foregoing, it seems that the just outcome would be to grant the extension of time as prayed for filing the defence and seek to ameliorate any harm to Mr. Crosby’s position with an appropriate order on his counter-application. Accordingly, the Thorne’s application for extension of time to file their defence is granted subject to any such counter-balancing order.

Relief from sanctions

[44]No express sanctions were attached to the court order [30] granting the Thornes’ an extension of time to file their defence. The CPR contains no sanctions for failure to file a defence on time. No express sanctions are applicable. However, the Thornes’ late filing of their defence amounted to violation of a court order and resulted in an untimely counterclaim. This is prejudicial to Mr. Crosby in view of his lost opportunity to file a defence to the counterclaim. Notwithstanding, their application for relief from sanctions is also granted.

Issue 2 – Should Teval Thorne’s and Maria Thorne’s defence and counterclaim be struck out?

[45]The CPR empowers the Court to strike out a statement of case (including a defence) or a part of it if the relevant party has failed to comply with a court order. [31] However, an order striking out a defence is seldom made because it is viewed as too drastic a measure which must be applied as a last resort and only in the most glaring cases. [32] [46] The court must conduct an assessment of the parties’ respective statements of case and generally errs on the side of allowing the case to proceed to trial. Mr. and Ms. Thorne acknowledged that the relief sought in their counterclaim is available to them even if they do not have a counterclaim. They accepted that the court may grant the equitable declaratory order pursuant to its statutory jurisdiction . In such case, they would not be hampered in making their case and neither would Mr. Crosby.

[47]Having regard to Mr. Crosby’s acknowledgment that his pleadings and witness statements provide a sufficient framework for prosecuting his claim against the Thornes, with amplification as appropriate; and through legal submissions addressing their legal counter-assertions, there is no compelling reason to strike out the proposed defence. In light of the parties’ respective positions regarding the implications attendant on retaining the counterclaim on the one hand or severing it on the other, it just to strike it out.

[48]Doing so would facilitate the progression to trial on the scheduled second trial day and result in little to no prejudice to the parties. In a limited way this course of action would reprove the Thornes for their non-compliance with the order. It is therefore ordered that the application to strike out the defence is dismissed. The application to strike out the counterclaim is granted.

COSTS

[49]The Thornes and Mr. Crosby’s applications were before the court on 25 th September 2019 – the date on which the pre-trial conference was to take place. Further arguments and additional evidence was received on 12 th November 2019, the scheduled trial date. Assessed costs are not awarded for such applications [33] . I therefore make no order as to costs.

ORDER

[50]It is accordingly ordered: Teval Thorne’s and Maria Thorne’s application for an extension of time to file their defence and counterclaim and for relief from sanctions is granted. Dave Crosby’s application to strike out Teval Thorne’s and Maria Thorne’s defence is granted in part, in that the counterclaim is struck out. No order is made striking out the defence. No order as to costs.

[51]I am grateful to the legal practitioners for their submissions. Esco L. Henry HIGH COURT JUDGE By the Court Registrar [1] June 14 th 2019, by order of court dated 15 th May 2019. [2] 18 th July 2019. [3] 12 th September 2019. [4] Excluding the long vacation. [5] November 12 th 2019. (During October and earlier in November, the court sittings were vacated on a number of occasions). [6] Rule 26.1(2) (k) of the Civil Procedure Rules 2000 (‘CPR’). [7] CPR 27.8(3). [8] CPR 1.2. [9] CPR 27.8(4). See also C. O. Williams Construction (St. Lucia) Limited v Inter-Island Dredging Co. Ltd. SLUHCVAP 2011/017; and Prudence Robinson v Sagicor General Insurance Inc. SLUHCVAP2013/0009. [10] Affidavit filed on November 12 th 2019. [11] Para. 4 of her affidavit filed on November 12 th 2019. [12] CPR 26.9 (2). [13] CPR 26.9 (3). [14] CPR 3.7. [15] In the Appendix. [16] CPR 3.10. [17] ANUHCV2013/0587. [18] AXAHCV2012/0024. [19] SLUHCVAP2003/19. [20] [2011] UKPC 38. [21] Carlene Pemberton v Mark Brantley SKBHCVAP 2011/009. [22] CPR 3.5. [23] At paragraph 7 of the proposed Defence. [24] At paragraph 8 of the proposed Defence. [25] At paragraphs 9, 10 and 13 of the proposed Defence. [26] At paragraph 15 of the proposed Defence. [27] At paragraphs 25, 26 and 31 of the proposed Defence. [28] At paragraphs 26, 31, 34 and 35 of the proposed Defence. [29] In accordance with sections 19 and 20 of the Eastern Caribbean Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act (‘The Supreme Court Act’). [30] Dated 15 th May 2019. [31] Rule 26.3 (1) (a) of the CPR. [32] Didier et al v Royal Caribbean Cruises Ltd. SLUHCVAP2014/0024 (unreported). [33] CPR 65.11(1).