Linde Antigua Ltd v Tom Matthews et al

, .. THE EASTERN CARIBBEAN SUPREME CO RT ANTIGUA AND BARBUDA IN THE HIGH CO RT OF JUSTICE CLAIM NO. ANUHCV2011/0124 BETWEEN: Claimant an [1] TOM M THEWS [2] TERESIA ATTHEWS Defendants Appearances: Ms E. Ann Henry a.c. and with her Mrs. Stacy Ann Saunders-Osborne for the claimant I Mr. Charlesworth Browne for the defe i dants 2013: Sep ember 05 DECISION

[1]HENRY, J.: This is an application by the defendants for an order: 1. Permitting them to call (4) foJr witnesses as experts in their respective areas of specialization; 2. That the defendants be at libeoy to rely on the respective reports of the named experts included in the at'reed bundle of documents 'filed herein; 3. That the reports be deemed to h ve been properly served; 4. That the defendants be at Iberty to rely on the respective witness statements of the said experts; i 1i 5. That the respective witness st tements of the said experts be deemed to have been properly filed: 6. That the defendants be relieve from sanctions for not obtaining the court's permission at the Case Manage ent Conference to call the said experts; 7. That the experts be permitted to issue fresh reports in such format as the court may require pursuant to rule 32, Civil Procedure Rules 2000 (CPR) and that the same be admitted ~s evidence at the trial; 8. Giving such other or further dirttions in relation to the said witnesses, their reports and witness statements rs the court sees fit.

[2]The application is supported by an affihavit of Emerald Brown. In her affidavit she deposes that in order to properly adJance the defence and counterclaim of the defendants they have relied on the four experts in their various areas of specialization, namely: ! (a) Dave Martin: construction an repairs of building roofs, identification of roofing defects: (b) Tim Carter: Framing and cons ruction of building roofs, the installation of roofing materials: remodeling . f building roofs, identification of building defects; (c) E. Alicia Kirton-Garraway: C,vil and Structural Engineering, Quantity Surveying (d) David Watt: Accounting

[3]The affidavit further states that the defe dants are seeking the court's permission to put in the reports of the above expert and have the experts give evidence at the trial. The omission of the defendants to apply for permission at the case management conference, they asse~, was not intentional but was due to inadvertence at the material time. •

[4]Further, the affidavit asserts that the e idence of the experts and the admission of their reports are necessary for the just and expeditious determination of the case. Copies of the reports have, it is asse ed, been served on the claimant and were listed in the bundle of Agreed Docum nts filed on 28th January 2013. Therefore, according to the defendants, granting permission as requested will not prejudice the claimant's case.

[5]By a supplemental affidavit filed 18th April 2013, the Resume of E. Alicia Kirton­ Garraway along with a Certificate of ~ecognition of Caribbean Community Skills qualification was submitted. Also sUbfllitted were the Curriculum Vitae of each of the other proposed experts.

[6]The claimant objects to Dave Martin, T m Carter and E. Alicia Kirton Garraway being appointed experts. The claimant as no object to David Watt being called an expert in the field of Accounting.

[7]An affidavit of W. Addison Workman ,I Principal of Addison Workman Engineers, Civil & Structural Engineering Consultants was filed in opposition to the application. Mr. Workman asserts that while alii three proposed experts have scholastic exposure in their relevant fields with varied levels of achievement and have gained experience working in the construc' n industry, none of the three have any exposure to the responsibilities of s ral design. He is of the view that in order to make cogent assessments in this m tter, the expert witness must be well versed in structural design. He opines that b sed on their respective Curricula vitae, they are not suitably qualified to give eviden e as experts in this matter.

[8]It is the claimant's contention that by laking at the Curricula vitae of the proposed expert witnesses, the court ought to be satisfied as to qualification and experience. With regard to David Martin, claimant's position is that his Curriculum Vitae gives the court no assistance. The informdtion supplied therein, it is submitted, only indicates that he has a company that designs and manufactures roofing products. It does not indicate what role he has p'ayed in the actual installations. Claimant is insistent that the Mr. Martin cannot e considered to provide expertise on the issues before the court.

[9]With regard to Mr. Tim Carter, claima t's submission is that his Curriculum Vitae tells the court nothing.

[10]Mrs. Kirton-Garraway it is submitted is a Quantity Surveyor, which has to do with pricing.

[11]The claimant also points out that both Mr. Martin and Mr. Carter have had connection with the defendants, the knd and extent of which ought to disqualify them from being expert witnesses in thi matter.

[12]Additionally, the claimant submits that it is offensive to the Rules of the court for parties to agree to the inclusion of e pert reports. The tenure of Part 32 of the Rules is that it is the court who dete mines what expert evidence is to be lead. i Therefore, the claimant asks that t1e court rejects item 2 of the defendants' application.

[13]I Further, the claimant is of the view that, because of the provisions of CPR 32, it is I not open to the court to make the order prayed in items 4 and 5.

[14]In answer to the affidavit of Mr. workm~nt the defendants filed affidavits by Eustace I. S. Roberts and Henderson Simon Cjvil & Structural Engineers. Having inspected the works and having read the Curricula Vitae of the three proposed expert witnesses. They express their cons~ered opinion that the three are suitably qualified, experienced and competert to give evidence as experts in their respective fields of endeavor. They are of the further view that there is absolutely I no need for them to be well vers$d in structural design in order to make pronouncements on defective works.

The Applicable Law

[15]Part 32 of the CPR deals with the Proyision of expert evidence to assist the court. Expert evidence is restricted to that thich is reasonably required to resolve the proceedings justly. The duty of the expert is to help the court impartially on matters relevant to his or her expertise. CPR 32.4 sets out the ways in which the expert's duty to the court is to be carried out. T~ey include: 1) Expert evidence presented t~ the court must be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the demands of th~ litigation 2) An expert witness must prov'de independent assistance to the court by way of objective, unbiased 1Pinion in the relation to matters within the witness' expertise. I Rule 32.6 provides in part: 1) A party may not call an expert .itness or put it in the report of an expert witness without the court's permis$ion. 2) The general rule is that the COJI rt's permission is to be given at a case management conference. 3) When aparty applies for permissi n under this rule a) That party must name the e~pert witness and identify the nature of his or her expertise; and i b) Any permission granred shall be in relation to that expert witness only. t f f I 4) The oral or written expert witness,levidence may not be called or put in unless the party wishing to call or put in t at evidence has served a report of the evidence which the expert witnes intends to give.

[16]On the issue of competency, the text P ipson on Evidence, 15th Edition, section 37· 46, provides the following guidanc : liThe competency of the expert is a preliminary question for the judge ... Though the expert must be "skilled", by special study or experience; the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibi~ity. .. Equally, one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one's work, notwithstanding that the expeltise is derived from experience and not from for' al training. Police officers habitually give evidence relating to matters about which they have acquired in depth knowledge in the course of th ir duties ..."

[17]The court was referred to several cases by the claimant, including National Justice Compania Naviera SA v Prudential ssurance Company Ltd1,; Helical Bar pic and another v Armchair Passenger ansport Limited2 and Stewart v The Attorney General3 •

[18]In the National Justice case, Mr. Justice Cresswell set out the duties and responsibilities of expert witnesses in Icivil cases. They are consistent with the I provisions of part 32 of the CPR .

[19]In the Helicar Bar case Nelson J., set out the proper test to be applied in deciding whether the evidence of an expert wit •ess should be excluded on the basis of an alleged connection. He stated: "It is not the existence of an in erest or connection with the litigation or a party thereto, but the nature an extent of that interest or connection which determines whether an expert witness should be precluded from giving evidence. Hence, once such n interest or connection is ascertained a decision must be made promp :Iy as a matter of case management as to whether the expert's evidence is precluded or not."

[20]It is therefore for the court to examin I the Curricula Vrtae of the proposed expert witnesses, determine whether theyIpossess expertise in an area which is reasonably required to resolve the proceedings justly and whether, given all the I circumstances, including any connection with the defendants, they understand and are able to help the court impartially on the matters relevant to his expertise. MR DAVE MARTIN Qualification The defendants seek to call Mr. Martini as an expert in "construction and repairs of building roofs, identification of roofing d6fects". Mr. Martin's Curriculum Vitae is rather trief. It is set out in full below. "David GMartin . Cobbs Cross St. Paul's Antigua O.O.B 7th November 19551 I first worked in the constructi . n industry in 1975 for Robert Mc Alpine & Sons as an assistant to a ~roup of civil engineers. While there I was offered afull University schol~rship to study civil Engineering. I elected to continue my stud es in Biology attaining a degree in Applied Biology. 1976 -1979 I continued to work in ithe construction industry while astudent. i After graduating I trained as aplumber. It should be noted j.at at that time plumbers did a significant amount of work on roofs including all lead flashings, valley coverings and gutterig. 1979 -1985 I continued full time inl construction with my own firm for another 6 years. Projects varier from simple house remodeling to new house builds. 1985 -1992 I changed full time ca eers in the 1980's, retained once again and entered the data proceSSing industry eventually becoming a consultants. 1992 - 2001 I came to Antigua in e 1990's initially in the dive industry, I am a professional dive inst uctor of over 20 years standing. 2001 - 2003 I taught I.T. at Island cademy. 2003 - Present Re entered constructibn industry full time, initially as aplumber. I saw a niche in Antigua for acompany specializing in roof contruction and in 2007, following training i~ the UK with J.M. Parry and Associates, formed acompany designing and manufacturing roofing products. After a slow start we now w irk with several architects and installed over 35,000 square feet of roofs in Antigua with a further 17,000 sq ft presently on order. We are very particular, and taken the time and trouble to look up the various standards and state nts of best practice applicable to roofing in the tropics. We have also pent considerable time researching what products are and are not apprbved for use in the tropics. Our roofs are and installed to! Miami I Dade High Velocity Hurricane Zone codes."

[21]The court notes that Mr. Martin's education is in Applied Biology followed by training for an unspecified period in plumbing.! There was also training for an unspecified period in an undisclosed field with.1. . Parry & Associates. The court concludes that as set out in his curriculum vitae he has not been formally educated in the areas of his proposed expertise. Ther fore, in order to make a determination the court must now examine his experienc .

[22]I accept that Mr. Martin worked in th construction field for a number of years. However, not every construction worket is a roofing expert. Although building a new house would, I assume, include construction of a roof, no special emphasis is mentioned with regard to roofs or iden~ification of roofing defects during the years 1979 - 1985 and 2003 - 2007. .

[23]In 2007 Mr. Martin formed a comp ny "designing and manufacturing roofing products." No information was disclos d as to nature of the roofing products. The statement "we have installed 35,000 s ft of roof in Antigua" without further details provides an insufficient basis for the co rt to conclude that Mr. Martin has expertise in the area of construction and repairs f roofs and identifications of roofing defects. I see no evidence that he has acquired expert knowledge in this particular sphere through repeated contact during the course of his work. ! Connection with the defendants [24J The claimant also objected to Mr. Ma in on the basis of his connection with the defendants. He had been employed b the defendants intermittently from 2008 to May 2012. It is this employment that t e claimant contends further disqualifies him from being called as an expert in this m tter.

[25]The UK Court of Appeals in Field v L~eds City Council4 dealt with the issue of whether, under the CPR, it is inappropriate for an expert to be called who is an employee of aparty to the litigation. There the proposed expert was an employee of the City, who wished to call him as thei expert. It was accepted that if an expert is properly qualified to give evidence, th n the fact that he is employed by the local authority would not disqualify him. The ssue of impartiality goes to the weight of the evidence and not to the admissibility of he evidence5.

[26]Mr. Martin's intermittent employment with the defendant, by itself, would not disqualify him frol11 being called as an expert. But it was essential for Mr. Martin's Curriculum Vitae to clearly demonstrate that by reason of his education or experience, or both, that he had gain~d expert knowledge in the requested area. This has not been demonstrated. The •urt is left dissatisfied. Permission for him to be called as an expert therefore cannot be granted. Mr. Tim Carter Mr. Carter's Curriculum Vitae is set out in full below: Tim Carter - Curriculum Vitae Education: Bachelor of Science - University of Ci~cinnati -1974 Graduate of the State of Ohio Institute r1976 4 Fields v Leeds City Council (2000) 17 EG t65, CA. Professional Experience: Master Custom Home Builder: 1984 - Present Master Roofer and Roof Cutter: 1990 Present Master Carpenter: 1990 - Present Master Plumber: 1980 - Present Nationally Syndicated Newspaper Col~mnist: 1993 - Present I've installed thousands of squares of asphalt roofing and countless rolls of grace Ice and Watershield over the past decrdes. Credibility: Named Top 50 Remodelers in USA ini1993 - Remodeling magazine Worked last year in conjunction with race Ice and Watershield Corp. to produce a series of authorative step-by-step videos showing builders and homeowners exactly how Grace Ice and Watershiel s should be installed. Grace Ice and Watershields APPROVED the videos

[27]With regard to his education, the Curri ulum Vitae neglected to indicate the area of concentration in which he obtained his Bachelor of Science from the University of Cincinnati. Also missing is any information on his studies at the State of Ohio Institute. Therefore, as set out in hi$ Curriculum Vitae, his education does not assist the court in determining his qualification as an expert in the fields requested.

[28]His professional experience is set out n very brief fashion. While he does indicate that from 1990 to present he has expe ience as a roofer and roof cutter, his failure to give any details of his employment uring those 20 years is fatal. The court has little information upon which to judge hi experience as aroofer. He also indicates that he has installe thousands of squares of asphalt roof and countless rolls of Grace Ice and atershield over the past decades. The Counterclaim alleges that the claimant egligently installed Watershield roofing.

[29]In addition he indicates that he worked in 2012 in conjunction with Grace Ice and Watershield Corp to produce a series ~f step by step videos showing builders how these products should be installed. The videos were approved by the companies.

[30]The most that the court can say is that ~r. Carter has acquired expert experience in the installation of Grace Ice and Waterlhield materials.

[31]The fact that Mr. Carter was engaged y the defendants in May 2012 to attempt to identify the cause of leaks to the sal roof would not disqualify him from giving expert evidence. If anything it would g to the weight to be given to his evidence. 132] The court is satisfied that Mr. Tim Cart r has acquired expertise in the installation of Grace Ice and Watershield materials. IHowever, insufficient information was given to qualify him as an expert in any other area.

E. Alicia Kirton-Garraway

[33]The defendants desire to call Ms Kirton-Garraway as an expert in civil and structural engineering and quantity su 'eying. The educational qualification and work experience sections of her Resume are set out below. EDUCATIONAL UALIFICATION Years Attended Institution Qualification 1989-1994 Canje Secondary Schpol 5 Subjects CXC ! 1994-1996 New Amsterdam Tec~nicallnstitute Craft Certificate Carpentry and Joinery 1996-1997 New Amsterdam Tec nicallnstitute Technician Certificate Architectural Drawing 1998-2000 Govemment Technic I Institute Technician Diploma- Building &Civil Engineering 2000-2002 University of Guyana Diploma- Architecture I 2002 Global Institute of Computers Auto-Cad Drawing 2002-2005 University of Guyana Bachelor of Engineering (Arch) WORK EXPE IENCE Year Company Position 1997-1998 Design Consultants L d Draftsman &Assistant to (GIT-Guyana) Engineer IQuantity Surveyor 2000-2002 Dowding Quantity SU~eYing Assistant Quantity Surveyor (GIT-Guyana) 2004-2005 Keystone Design & R~ality Draftsman &Site Supervision Co Ltd (Antigua) 2006-2008 Roberts Construction i& Assistant Project Manager Engineering Co ltd Assistant 2008-2010 Waterpoint Caribbea Construction Manager/Project Homes Ltd Managerl Quantity Surveyor 2011-Present Roberts Construction Quantity Surveyor Consultant Engineering Co Ltd [34J Of note is the fact that Ms Kirton-Garrlaway holds a Craft Certificate in Carpentry and Joinery as well as a Diploma in Architecture. In 2005 she earned a Bachelor of Engineering - (Arch). In terms of he~ work experience, it demonstrates that the vast majority of her experience has beeln in Quantity Surveying. [35J Based on her education and experi~nce, the court is satisfied that she has expertise in the area of Quantity SUi eying. However, the court can find no exposure to Civil Engineering sufficient to qualify her as an expert in that field, or in any other requested areas other than uantity Surveying. [36J The court is satisfied that both Mr. Cart r and Ms. Kirton-Garraway understand their duty to the court and would be able to assist the court impartially on matters relevant to their expertise.

I

[37]Part 32 requires that the evidence of th~ expert witness be given in a written report, unless the court directs otherwise. The filing of regular witness statements on behalf of these persons before leave was obtained and without direction from the court was an error. Defendants accept that leave ought to have been obtained at · . the Case Management Conference. T~ey now seek the required leave and to be relieved from sanctions. . [38) In regard to Tim Carter and Ms. Kirto -Garraway the court now grants leave for both to be called as experts in the field indicated by the court. The court is of the view that in granting leave at this tim the claimant will not be unduly prejudice since the content of their reports arelready known to the claimant. Further, the leave now granted will not prejudice an~ trial dates. [39) Accordingly, the defendants' application:is disposed of as follows: 1. Permission is hereby granted acall the following persons as experts: (a) Tim Carter in the a ea of the installation of Grace Ice and Wathershield roofing materials. (b) E. Alicia Kirton-Garra~ay in the area of quantity surveying only. (c) David Watt in the area of Accounting. 2. Permission to call Dave Martit as an expert in the area of construction and repairs of roofs is denied Defendants are at liberty to call him as a witness. . 3. That part of the application for 6n order that the defendants be at liberty to rely on the respective Reports of the named experts included in the agreed bundle of documents tied on January 28, 2013 is denied. The defendants are to serve the reports of the experts' evidence on the claimant within 14 days of this order. Such Reports must be in accordance with Part 32. The witness statements of Tim Carter, E. Alicia Kirton-Garraway and David W9tt previously filed are hereby struck out 4. Items 3, 4, and 5of the defendf'nt's application are denied. 5. In light of the above, the dete dants are relieved from sanctions for not obtaining the court's permissio. at the Case Management Conference.

High Co

Judge

Antigua

Barbuda

Linde Antigua Ltd v Tom Matthews et al , .. THE EASTERN CARIBBEAN SUPREME CO RT ANTIGUA AND BARBUDA IN THE HIGH CO RT OF JUSTICE CLAIM NO. ANUHCV2011/0124 BETWEEN: Claimant an

[1]TOM M THEWS

[2]TERESIA ATTHEWS defendants Appearances: Ms E. Ann Henry a.c. and with her Mrs. Stacy Ann Saunders-Osborne for the claimant I Mr. Charlesworth Browne for the defe i dants 2013: Sep ember 05 DECISION

[3]The affidavit further states that the defe dants are seeking the court’s permission to put in the reports of the above expert and have the experts give evidence at the trial. The omission of the defendants to apply for permission at the case management conference, they asse~, was not intentional but was due to inadvertence at the material time. •

[4]Further, the affidavit asserts that the e idence of the experts and the admission of their reports are necessary for the just and expeditious determination of the case. Copies of the reports have, it is asse ed, been served on the claimant and were listed in the bundle of Agreed Docum nts filed on 28th January 2013. Therefore, according to the defendants, granting permission as requested will not prejudice the claimant’s case.

[5]By a supplemental affidavit filed 18th April 2013, the Resume of E. Alicia KirtonGarraway along with a Certificate of ~ecognition of Caribbean Community Skills qualification was submitted. Also sUbfllitted were the Curriculum Vitae of each of the other proposed experts.

[6]The claimant objects to Dave Martin, T m Carter and E. Alicia Kirton Garraway being appointed experts. The claimant as no object to David Watt being called an expert in the field of Accounting.

[7]An affidavit of W. Addison Workman ,I Principal of Addison Workman Engineers, Civil & Structural Engineering Consultants was filed in opposition to the application. Mr. Workman asserts that while alii three proposed experts have scholastic exposure in their relevant fields with varied levels of achievement and have gained experience working in the construc' n industry, none of the three have any exposure to the responsibilities of s ral design. He is of the view that in order to make cogent assessments in this m tter, the expert witness must be well versed in structural design. He opines that b sed on their respective Curricula vitae, they are not suitably qualified to give eviden e as experts in this matter.

[8]It is the claimant’s contention that by laking at the Curricula vitae of the proposed expert witnesses, the court ought to be satisfied as to qualification and experience. With regard to David Martin, claimant’s position is that his Curriculum Vitae gives the court no assistance. The informdtion supplied therein, it is submitted, only indicates that he has a company that designs and manufactures roofing products. It does not indicate what role he has p’ayed in the actual installations. Claimant is insistent that the Mr. Martin cannot e considered to provide expertise on the issues before the court.

[9]With regard to Mr. Tim Carter, claima t’s submission is that his Curriculum Vitae tells the court nothing.

[10]Mrs. Kirton-Garraway it is submitted is a Quantity Surveyor, which has to do with pricing.

[11]The claimant also points out that both Mr. Martin and Mr. Carter have had connection with the defendants, the knd and extent of which ought to disqualify them from being expert witnesses in thi matter.

[12]Additionally, the claimant submits that it is offensive to the Rules of the court for parties to agree to the inclusion of e pert reports. The tenure of Part 32 of the Rules is that it is the court who dete mines what expert evidence is to be lead. i

[13][14]

[15]Therefore, the claimant asks that t1e court rejects item 2 of the defendants’ application. I Further, the claimant is of the view that, because of the provisions of CPR 32, it is I not open to the court to make the order prayed in items 4 and 5. In answer to the affidavit of Mr. workm~nt the defendants filed affidavits by Eustace I. S. Roberts and Henderson Simon Cjvil & Structural Engineers. Having inspected the works and having read the Curricula Vitae of the three proposed expert witnesses. They express their cons~ered opinion that the three are suitably qualified, experienced and competert to give evidence as experts in their respective fields of endeavor. They are of the further view that there is absolutely I no need for them to be well vers$d in structural design in order to make pronouncements on defective works. The Applicable Law Part 32 of the CPR deals with the Proyision of expert evidence to assist the court. Expert evidence is restricted to that thich is reasonably required to resolve the proceedings justly. The duty of the expert is to help the court impartially on matters relevant to his or her expertise. CPR 32.4 sets out the ways in which the expert’s duty to the court is to be carried out. T~ey include: 1) Expert evidence presented t~ the court must be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the demands of th~ litigation 2) An expert witness must prov’de independent assistance to the court by way of objective, unbiased 1Pinion in the relation to matters within the witness' expertise. I Rule 32.6 provides in part: 11 1) A party may not call an expert .itness or put it in the report of an expert witness without the court’s permis$ion. 2) The general rule is that the COJI rt’s permission is to be given at a case management conference. 3) When aparty applies for permissi n under this rule a) That party must name the e~pert witness and identify the nature of his or her expertise; and i b) Any permission granred shall be in relation to that expert witness only. f f I t 4) The oral or written expert witness,levidence may not be called or put in unless the party wishing to call or put in t at evidence has served a report of the evidence which the expert witnes intends to give.

[16]On the issue of competency, the text P ipson on Evidence, 15th Edition, section 37· 46, provides the following guidanc : liThe competency of the expert is a preliminary question for the judge … Though the expert must be "skilled", by special study or experience; the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibi~ity. .. Equally, one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one’s work, notwithstanding that the expeltise is derived from experience and not from for' al training. Police officers habitually give evidence relating to matters about which they have acquired in depth knowledge in the course of th ir duties …”

[17]The court was referred to several cases by the claimant, including National Justice Compania Naviera SA v Prudential ssurance Company Ltd1,; Helical Bar pic and another v Armchair Passenger ansport Limited2 and Stewart v The Attorney General3 •

[18]In the National Justice case, Mr. Justice Cresswell set out the duties and responsibilities of expert witnesses in Icivil cases. They are consistent with the I provisions of part 32 of the CPR .

[19]In the Helicar Bar case Nelson J., set out the proper test to be applied in deciding whether the evidence of an expert wit •ess should be excluded on the basis of an alleged connection. He stated: "It is not the existence of an in erest or connection with the litigation or a party thereto, but the nature an extent of that interest or connection which determines whether an expert witness should be precluded from giving evidence. Hence, once such n interest or connection is ascertained a decision must be made promp :Iy as a matter of case management as to whether the expert’s evidence is precluded or not." 1 (1993) Times,S March [2003] EWHC 367 (QB) 3 Court of Appeal HCVP 2008/006 issued l~th April 2009

[20]It is therefore for the court to examin I the Curricula Vrtae of the proposed expert witnesses, determine whether theyIpossess expertise in an area which is reasonably required to resolve the proceedings justly and whether, given all the I circumstances, including any connection with the defendants, they understand and are able to help the court impartially on the matters relevant to his expertise. MR DAVE MARTIN Qualification The defendants seek to call Mr. Martini as an expert in “construction and repairs of building roofs, identification of roofing d6fects”. Mr. Martin’s Curriculum Vitae is rather trief. It is set out in full below. “David GMartin . Cobbs Cross St. Paul’s Antigua O.O.B 7th November 19551 1975 I first worked in the constructi . n industry in 1975 for Robert Mc Alpine & Sons as an assistant to a ~roup of civil engineers. While there I was offered afull University schol~rship to study civil Engineering. I elected to continue my stud es in Biology attaining a degree in Applied Biology. 1976 -1979 I continued to work in ithe construction industry while astudent. i 1979 After graduating I trained as aplumber. It should be noted j.at at that time plumbers did a significant amount of work on roofs including all lead flashings, valley coverings and gutterig. 1979 -1985 I continued full time inl construction with my own firm for another 6 years. Projects varier from simple house remodeling to new house builds. 1985 -1992 I changed full time ca eers in the 1980’s, retained once again and entered the data proceSSing industry eventually becoming a consultants. 1992 -2001 I came to Antigua in e 1990’s initially in the dive industry, I am a professional dive inst uctor of over 20 years standing. 2001 -2003 I taught I.T. at Island cademy. 2003 -Present Re entered constructibn industry full time, initially as aplumber. I saw a niche in Antigua for acompany specializing in roof contruction and in 2007, following training i~ the UK with J.M. Parry and Associates, formed acompany designing and manufacturing roofing products. After a slow start we now w irk with several architects and installed over 35,000 square feet of roofs in Antigua with a further 17,000 sq ft presently on order. We are very particular, and taken the time and trouble to look up the various standards and state nts of best practice applicable to roofing in the tropics. We have also pent considerable time researching what products are and are not apprbved for use in the tropics. Our roofs are and installed to! Miami I Dade High Velocity Hurricane Zone codes.”

[21]The court notes that Mr. Martin’s education is in Applied Biology followed by training for an unspecified period in plumbing.! There was also training for an unspecified period in an undisclosed field with.1. . Parry & Associates. The court concludes that as set out in his curriculum vitae he has not been formally educated in the areas of his proposed expertise. Ther fore, in order to make a determination the court must now examine his experienc .

[22]I accept that Mr. Martin worked in th construction field for a number of years. However, not every construction worket is a roofing expert. Although building a new house would, I assume, include construction of a roof, no special emphasis is mentioned with regard to roofs or iden~ification of roofing defects during the years 1979 1985 and 2003 2007. .

[23]In 2007 Mr. Martin formed a comp ny "designing and manufacturing roofing products." No information was disclos d as to nature of the roofing products. The statement "we have installed 35,000 s ft of roof in Antigua" without further details provides an insufficient basis for the co rt to conclude that Mr. Martin has expertise in the area of construction and repairs f roofs and identifications of roofing defects. I see no evidence that he has acquired expert knowledge in this particular sphere through repeated contact during the course of his work. ! Connection with the defendants [24J The claimant also objected to Mr. Ma in on the basis of his connection with the defendants. He had been employed b the defendants intermittently from 2008 to May 2012. It is this employment that t e claimant contends further disqualifies him from being called as an expert in this m tter.

[25]The UK Court of Appeals in Field v L~eds City Council4 dealt with the issue of whether, under the CPR, it is inappropriate for an expert to be called who is an employee of aparty to the litigation. There the proposed expert was an employee of the City, who wished to call him as thei expert. It was accepted that if an expert is properly qualified to give evidence, th n the fact that he is employed by the local authority would not disqualify him. The ssue of impartiality goes to the weight of the evidence and not to the admissibility of he evidence5.

[26]Mr. Martin’s intermittent employment with the defendant, by itself, would not disqualify him frol11 being called as an expert. But it was essential for Mr. Martin’s Curriculum Vitae to clearly demonstrate that by reason of his education or experience, or both, that he had gain~d expert knowledge in the requested area. This has not been demonstrated. The •urt is left dissatisfied. Permission for him to be called as an expert therefore cannot be granted. Mr. Tim Carter Mr. Carter’s Curriculum Vitae is set out in full below: Tim Carter Curriculum Vitae Education: Bachelor of Science University of Ci~cinnati -1974 Graduate of the State of Ohio Institute r1976 4 Fields v Leeds City Council (2000) 17 EG t65, CA. S See also Creese v Joslyn Civil Claim No. 2~3 of 2004, St. Vincent & The Grenadines. Professional Experience: Master Custom Home Builder: 1984 Present Master Roofer and Roof Cutter: 1990 Present Master Carpenter: 1990 Present Master Plumber: 1980 Present Nationally Syndicated Newspaper Col~mnist: 1993 Present I’ve installed thousands of squares of asphalt roofing and countless rolls of grace Ice and Watershield over the past decrdes. Credibility: Named Top 50 Remodelers in USA ini1993 Remodeling magazine Worked last year in conjunction with race Ice and Watershield Corp. to produce a series of authorative step-by-step videos showing builders and homeowners exactly how Grace Ice and Watershiel s should be installed. Grace Ice and Watershields APPROVED the videos

[27]With regard to his education, the Curri ulum Vitae neglected to indicate the area of concentration in which he obtained his Bachelor of Science from the University of Cincinnati. Also missing is any information on his studies at the State of Ohio Institute. Therefore, as set out in hi$ Curriculum Vitae, his education does not assist the court in determining his qualification as an expert in the fields requested.

[28]His professional experience is set out n very brief fashion. While he does indicate that from 1990 to present he has expe ience as a roofer and roof cutter, his failure to give any details of his employment uring those 20 years is fatal. The court has little information upon which to judge hi experience as aroofer. He also indicates that he has installe thousands of squares of asphalt roof and countless rolls of Grace Ice and atershield over the past decades. The Counterclaim alleges that the claimant egligently installed Watershield roofing.

[29]In addition he indicates that he worked in 2012 in conjunction with Grace Ice and Watershield Corp to produce a series ~f step by step videos showing builders how these products should be installed. The videos were approved by the companies.

[30]The most that the court can say is that ~r. Carter has acquired expert experience in the installation of Grace Ice and Waterlhield materials. 9 1

[31]The fact that Mr. Carter was engaged y the defendants in May 2012 to attempt to identify the cause of leaks to the sal roof would not disqualify him from giving expert evidence. If anything it would g to the weight to be given to his evidence. 132] The court is satisfied that Mr. Tim Cart r has acquired expertise in the installation of Grace Ice and Watershield materials. IHowever, insufficient information was given to qualify him as an expert in any other area. E. Alicia Kirton-Garraway

[33]The defendants desire to call Ms Kirton-Garraway as an expert in civil and structural engineering and quantity su 'eying. The educational qualification and work experience sections of her Resume are set out below. EDUCATIONAL UALIFICATION Years Attended Institution Qualification 1989-1994 Canje Secondary Schpol 5 Subjects CXC ! 1994-1996 New Amsterdam Tec~nicallnstitute Craft Certificate Carpentry and Joinery 1996-1997 New Amsterdam Tec nicallnstitute Technician Certificate Architectural Drawing 1998-2000 Govemment Technic I Institute Technician Diploma-Building &Civil Engineering 2000-2002 University of Guyana Diploma-Architecture I 2002 Global Institute of Computers Auto-Cad Drawing i& [34J [35J [36J

[37]2002-2005 University of Guyana Bachelor of Engineering (Arch) WORK EXPE IENCE Year Company Position 1997-1998 Design Consultants L d Draftsman &Assistant to (GIT-Guyana) Engineer IQuantity Surveyor 2000-2002 Dowding Quantity SU~eYing Assistant Quantity Surveyor (GIT-Guyana) 2004-2005 Keystone Design & R~ality Draftsman &Site Supervision Co Ltd (Antigua) 2006-2008 Roberts Construction i& Assistant Project Manager Engineering Co ltd Assistant 2008-2010 Waterpoint Caribbea Construction Manager/Project Homes Ltd Managerl Quantity Surveyor 2011-Present Roberts Construction Quantity Surveyor Consultant Engineering Co Ltd Of note is the fact that Ms Kirton-Garrlaway holds a Craft Certificate in Carpentry and Joinery as well as a Diploma in Architecture. In 2005 she earned a Bachelor of Engineering -(Arch). In terms of he~ work experience, it demonstrates that the vast majority of her experience has beeln in Quantity Surveying. Based on her education and experi~nce, the court is satisfied that she has expertise in the area of Quantity SUi eying. However, the court can find no exposure to Civil Engineering sufficient to qualify her as an expert in that field, or in any other requested areas other than uantity Surveying. The court is satisfied that both Mr. Cart r and Ms. Kirton-Garraway understand their duty to the court and would be able to assist the court impartially on matters relevant to their expertise. I Part 32 requires that the evidence of th~ expert witness be given in a written report, unless the court directs otherwise. The filing of regular witness statements on behalf of these persons before leave was obtained and without direction from the court was an error. Defendants accept that leave ought to have been obtained at · . the Case Management Conference. T~ey now seek the required leave and to be relieved from sanctions. . [38) In regard to Tim Carter and Ms. Kirto -Garraway the court now grants leave for both to be called as experts in the field indicated by the court. The court is of the view that in granting leave at this tim the claimant will not be unduly prejudice since the content of their reports arelready known to the claimant. Further, the leave now granted will not prejudice an~ trial dates. [39) Accordingly, the defendants’ application:is disposed of as follows:

[1]HENRY, J.: This is an application by the defendants for an order:

1.Permitting them to call (4) foJr witnesses as experts in their respective areas of specialization;

2.That the defendants be at libeoy to rely on the respective reports of the named experts included in the at’reed bundle of documents ‘filed herein;

3.That the reports be deemed to h ve been properly served;

4.That the defendants be at Iberty to rely on the respective witness I statements of the said experts; i I 1i

5.That the respective witness st tements of the said experts be deemed to have been properly filed:

6.That the defendants be relieve from sanctions for not obtaining the court’s permission at the Case Manage ent Conference to call the said experts;

7.That the experts be permitted to issue fresh reports in such format as the court may require pursuant to rule 32, Civil Procedure Rules 2000 (CPR) and that the same be admitted ~s evidence at the trial;

8.Giving such other or further dirttions in relation to the said witnesses, their reports and witness statements rs the court sees fit.

[2]The application is supported by an affihavit of Emerald Brown. In her affidavit she deposes that in order to properly adJance the defence and counterclaim of the defendants they have relied on the four experts in their various areas of specialization, namely: ! (a) Dave Martin: construction an repairs of building roofs, identification of roofing defects: (b) Tim Carter: Framing and cons ruction of building roofs, the installation of roofing materials: remodeling . f building roofs, identification of building defects; (c) E. Alicia Kirton-Garraway: C,vil and Structural Engineering, Quantity Surveying (d) David Watt: Accounting

1.Permission is hereby granted acall the following persons as experts: (a) Tim Carter in the a ea of the installation of Grace Ice and Wathershield roofing materials. (b) E. Alicia Kirton-Garra~ay in the area of quantity surveying only. (c) David Watt in the area of Accounting.

2.Permission to call Dave Martit as an expert in the area of construction and repairs of roofs is denied Defendants are at liberty to call him as a witness. .

3.That part of the application for 6n order that the defendants be at liberty to rely on the respective Reports of the named experts included in the agreed bundle of documents tied on January 28, 2013 is denied. The defendants are to serve the reports of the experts’ evidence on the claimant within 14 days of this order. Such Reports must be in accordance with Part 32. The witness statements of Tim Carter, E. Alicia Kirton-Garraway and David W9tt previously filed are hereby struck out

4.Items 3, 4, and 5of the defendf’nt’s application are denied.

5.In light of the above, the dete dants are relieved from sanctions for not obtaining the court’s permissio. at the Case Management Conference. High Co Judge Antigua Barbuda