Mable Phillips v Corrine Clara

EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL GRENADA GDAHCVAP2014/0023 MABLE PHILLIPS (acting through her Attorney Nancy Mc Kenzie Greene) Appellant and CORRINE CLARA Respondent Before: The Hon. Dame Janice M. Pereira, DBE Chief Justice The Hon. Mde. Louise Esther Blenman Justice of Appeal The Hon. Mr. Mario Michel Justice of Appeal On written submissions: Ms. Pauline Hannibal for the Appellant Mr. Deloni Edwards for the Respondent ___________________________ 2015: January 27. ___________________________ Interlocutory appeal – Whether learned judge erred in striking out portions of witness statement – Hearsay – Section 36E of the Evidence Act – Whether learned judge erred in dismissing application for issue of witness summons – Part 33 of the Civil Procedure Rules The appellant, Mable Phillips, is said to be over 95 years old and physically frail. In 2006 she gave a power of attorney to the respondent, Corrine Clara, to manage all of her affairs in Grenada. Prior to that, in or about 2004, the appellant had added the respondent to her bank account (“the Account”) at Republic Bank (“the Bank”) in St. George’s, Grenada. The power of attorney in favour of the respondent was revoked by the appellant in March 2013 and that same month Nancy Mc Kenzie Greene, the appellant’s step-daughter, was appointed by the appellant as her attorney (“the Attorney”). The Attorney subsequently instituted proceedings against the respondent in the name of the appellant, seeking, among other relief, an order requiring the respondent to account for sums of money withdrawn from the Account. On 27th February 2014, the Attorney filed a witness statement (“the Witness Statement”) for and on behalf of the appellant. On 17th March 2014, the respondent applied to strike out various portions of the Witness Statement on the bases that they constituted hearsay evidence, are highly prejudicial and were of no probative or no sufficient probative value and therefore were inadmissible. In addition, on 1st April 2014, the appellant applied for permission to issue a witness summons (“the Witness Summons”) pursuant to Part 33 of the Civil Procedure Rules 2000 (“CPR 2000”) directed to one Garnet Ross, Retail Manager of the Bank, to bring various documents listed in the Witness Summons said to be pertaining to the Account to court on the date appointed by the court. The proceedings in the court below were reaching the pre-trial review stage, however, no date for trial had been fixed. The two applications were heard by the learned judge in the court below at the pre-trial review. The learned judge, in her decision made on 30th June 2014, struck out various portions of the Witness Statement and dismissed the appellant’s application for the issue of the Witness Summons. The appellant subsequently applied for and was granted leave to appeal the learned judge’s decision. Held: Allowing the appeal; setting aside the order of the learned judge made on 30th June 2014 in respect of paragraphs 31(b), (c), (f), (g), (h), (i), (j), and (m) of the judgment, with the exception of paragraphs 33 and 38 of the Witness Statement referred to at paragraph 31(m) of the judgment; setting aside the order of the learned judge dismissing the Witness Summons application and ordering that the same be issued subject to a judge in the court below fixing the time, date and place for the attendance of the witness for the purpose of producing the documents; and setting aside the costs orders made in the court below and ordering that the respondent pays the costs of the appellant below assessed in the sum of $2,500.00 in respect of both applications and costs on this appeal fixed at two thirds of that sum, that: 1. Section 36E(3) of the Evidence Act contemplates that the party who is served with a statement containing hearsay evidence should make known to the party serving the statement that the party so served will require the maker of the statements to be called as a witness. Thus, the party serving the statement, having knowledge of this requirement, has an opportunity to put before the court evidence which may satisfy one or more of the circumstances specified in section 36E(4) of the Evidence Act or evidence which engages the judge in a consideration of appropriate measures to be taken under CPR 33.7. Accordingly, section 36E(3) of the Evidence Act contemplates a step to be taken by the party served with hearsay evidence. The learned judge erred in concluding that the condition of section 36E(3) had not been met by the appellant. This was a step to be taken by the respondent and then, upon being met with a bare refusal or reasons which could not meet the requirements under section 36E(4), the respondent would have been justified in applying to strike out hearsay evidence from the Witness Statement. Section 36E(3) and (4) of the Evidence Act applied. 2. No provision in CPR 2000 dealing with witness summonses contemplates or requires that permission for a witness summons ought to be made at case management or before witness statements are filed. Having regard to the tenor and purpose of Part 33 of CPR 2000, the appellant’s application for permission to issue the Witness Summons could not be considered as not being expeditious. The proceedings were at the pre-trial review stage and no trial date had yet been fixed. Further, the learned judge overlooked the case management powers which were at her disposal at pre-trial review. Accordingly, she misapprehended the factual basis and had regard to irrelevant considerations when considering the application. 3. There is a distinction to be drawn between an order for disclosure made against a third party and a witness summons to produce documents. In substance, a witness summons to produce documents is nothing more than a subpoena duces tecum under the old rules regime and the difference between such summonses and an order for disclosure are reflected in the different procedures provided by CPR 2000. In this appeal, it does not appear that the learned judge addressed her mind to the entire regime dealing with witness summonses under Part 33 of CPR 2000. Had the learned judge given due regard to CPR 33.2 and 33.3, as well as the nature and purpose of the Witness Summons in the circumstances of the case, she would have avoided having regard to irrelevant considerations and generally misapprehending the very nature and purpose of the application. Accordingly, the learned judge’s conclusion that the application was one for specific disclosure was wrong. Rules 33.2 and 33.3 of the Civil Procedure Rules 2000 applied; Tajik Aluminium Plant v Hydro Aluminium AS and others [2005] EWCA Civ. 1218 applied. 4. In deciding whether to give permission to issue a witness summons, a court should seek to ensure that the application is not being abused; that it is utilised in good faith for the purpose of obtaining relevant evidence; and that it is not a fishing expedition, speculative, oppressive, does not offend against public interest immunity and such like considerations. This is not an exhaustive list, but the considerations will depend on the circumstances of each particular case. In this appeal, it does not appear that the learned judge addressed her mind to these types of considerations. This may have been as a result of her mischaracterizing the nature of the application and treating it as one seeking specific disclosure. The learned judge’s conclusion that it was an application for specific disclosure was a fatal error in principle and led her into error in having regard to irrelevant considerations. Harrison and another v Bloom Camillin (a firm) (1999) Times, 12 May applied. JUDGMENT

[1]PEREIRA CJ: This is an interlocutory appeal pursuant to leave granted by a judge of the Court on 23rd September 2014. Written submissions were filed by the appellant, Mable Phillips (“Ms. Phillips”) and the respondent on 14th and 27th October 2014 respectively. The appeal arises from the decision of the trial judge, Mohammed J, made on 30th June 2014, in which she ordered the striking out of various portions of a witness statement filed by the appellant’s attorney for and on behalf of the appellant on 27th February 2014 (“the Witness Statement”) and dismissed the appellant’s application for the issue of a witness summons (“the Witness Summons”) made pursuant to Part 33 of the Civil Procedure Rules 2000 (“CPR 2000”). The Witness Summons was directed to one Garnet Ross, Retail Manager of Republic Bank (“the Bank”) in St. George’s, Grenada to bring various documents specified in the Witness Summons said to be pertaining to account #11123778 ‘formerly held in the names of Mable Phillips and Corrine Clara’1 (the claimant and the defendant respectively in the proceedings below) to the court on the date appointed by the court.

The Background

[2]A background summary is necessary for the purposes of placing the issues raised on this appeal into context: (a) Nancy Mc Kenzie Greene (“the Attorney”), a step-daughter of Ms Phillips, acts on behalf of Ms. Phillips as her duly appointed attorney pursuant to two powers of attorney granted to her by Ms. Phillips on 11th and 18th March 2013. Ms. Phillips is said to be over 95 years old and physically frail. At the relevant times she resided at the St. Martin’s Home for the Aged in St. Andrews, Grenada. (b) In 2006, Ms. Phillips gave a power of attorney to the respondent to manage all her affairs in Grenada. That power of attorney recited Ms. Phillips as saying among other things, the following: “I Mable Phillip ………. at present residing at the St. Martin’s Home for the aged St. Andrews. Whereas I am now advanced in age and frail …... I hereby appoint Corrine Clara my lawful Attorney to act in and manage all my affairs in Grenada.”2 That Power of Attorney was revoked in March 2013. In the same month the Attorney herein was appointed. (c) The Attorney instituted the claim which is the subject of the proceedings below against the respondent in the name of Ms. Phillips. Ms. Phillip’s case, as recorded by the learned trial judge at paragraphs 2 and 3 of her judgment, is that the respondent withdrew large sums of money from her account #11123778 (“the Account”) at the Bank and did not apply or use it for her (Ms. Phillips). In 2004 Ms. Phillips had added the respondent to the Account as a joint holder of the Account for convenience of the respondent handling the financial affairs of Ms. Phillips. (d) Ms. Phillips pleaded that she had obtained from the Bank a statement of the Account for the period 1st January 2012 to 17th May 2013 and had also obtained a statement of account for the period 2006 to 2011. Ms. Phillips sought, among other relief, an order requiring the respondent to account for the sums so withdrawn from the Account. (e) The respondent denies that she withdrew large sums of money and denies liability to account to Ms. Phillips. The respondent also points at one Ruby Gilbert with whom she alleges that Ms. Phillips also operated an account, as the person who withdrew large sums of money from the Account, the implication being that it was Ruby Gilbert and not the respondent who withdrew the large sums of money. (f) The proceedings below were reaching the stage of pre-trial review. However, no trial date had been fixed and none has to date been fixed as far as this Court is aware. (g) On 17th March 2014, the respondent applied to strike out paragraphs 3, 4, 5, 6, 8, 9, 14, 16, 19, 21, 25, 26, 27, 28, 29, 33, 34, 36 38 and 41 or such parts thereof of the Witness Statement on the basis that they constituted hearsay evidence, are highly prejudicial and of no or no sufficient probative value and are therefore inadmissible. On 1st April 2014 the appellant applied for permission to issue the Witness Summons. Both applications came up for hearing at the pre-trial review. The Findings of the Judge Below

[3]In respect of the Witness Statement, the learned judge, after considering and reciting section 36E of the Evidence Act3 as well as the principles relating to ‘hearsay evidence’ as expounded in Halsbury’s Laws of England,4 opined: (i) At paragraph 11 of her judgment that: “The following statements are made from the direct knowledge of the witness Nancy Mc Kenzie Greene are therefore not hearsay: (a) The first two sentences in paragraph 3 (b) The entire paragraph 4 save and except the first sentence (c) The second sentence in paragraph 5 (d) The first and third sentences in paragraph 8 (e) The last sentence in paragraph 9 (f) Paragraph 19 (g) The third, fourth and fifth sentences in paragraph 29 (h) Paragraph 34 only the words “and having examined them with the Claimant I discovered that many large withdrawals were made by the Defendant” (i) Paragraph 41.” (ii) At paragraph 12: “The information containing first hand hearsay statements are: (a) last sentence of paragraph 3 (b) the first sentence of paragraph 6 (c) the second sentence in paragraph 8 (d) the first two sentences in paragraph 9 (e) paragraph 14, paragraph 25 (f) the last sentence in paragraph 26, 27, 28 (g) the first two sentences in 29 and (h) in paragraph 34 the words “a copy of the statement … 16th January 2014.”

[4]The learned judge also found at paragraph 13 that the appellant had satisfied the condition for notice in section 36E of the Evidence Act, ‘since the Witness statement was served long before the trial, and no trial date has been set...’ She was however, ‘not satisfied … that the other conditions in section 36E of the Act [had] been met which will deem the first hand hearsay admissible.’

[5]The learned judge went further. At paragraph 18 she held that: “The following parts of the witness statement are also struck out since they do not state the source of the information or belief (CPR 29.5): (a) The first sentence in paragraph 5 (b) Paragraph 6 save and except the first sentence (c) Paragraph 16 (d) Paragraph 21 (e) The first sentence of paragraph 26 (f) Paragraph 34 (g) Paragraphs 33, 36, 38.”

[6]In the end the learned judge struck out from the Witness Statement:5 “(a) The last sentence of paragraph 3 (b) The first sentence in paragraph 5 (c) Paragraph 6 (d) The second sentence in paragraph 8 (e) The first two sentences of paragraph 9 (f) Paragraph 14 (g) Paragraph 16 (h) Paragraph 21 (i) Paragraph 25 (j) Paragraph 26 (k) Paragraphs 27 and 28 (l) The first two sentences in 29 (m) Paragraphs 33, 34, 36 and 38.” The learned judge therefore struck out in their entirety, paragraphs 26, 27 and 28 of the Witness Statement, despite her express earlier finding at paragraph 12 of her judgment that only the last sentences of those paragraphs amounted to hearsay.

[7]With regard to the Witness Summons, the learned judge found at paragraph 25 of her judgment that the relief sought was in essence specific disclosure by a non- party. She then concluded, at paragraph 27, that the appropriate rule for the appellant to apply for disclosure from the Bank (absent a specific rule for disclosure by a nonparty) was CPR 33.16. The learned judge then went on to consider the factors to which she considered she ought to have regard in exercising her discretion under CPR 33.16. She opined, at paragraph 29 that CPR 33.16 was ‘designed to prevent the element of surprise at the trial’; that an application under CPR 33.16 ought to be made during case management ‘and certainly before the filing of witness statements.’ She opined that the only means for the representative from the Bank to produce the documents ‘for them to form part of the evidence is if he files a witness statement but the deadline for doing so has passed.’6 She concluded that the timing of the application placed the respondent at a distinct disadvantage if the purpose of the rule was to assist in clarifying the issues, as the appellant, she held, knew long before the case management directions that such an application was required. She concluded at paragraph 30 that the application had not been made expeditiously; had failed to explain why the application had not been made during case management or earlier; that the appellant was attempting to produce additional evidence after the respondent had filed her witness statement and thus was severely prejudicial to the respondent.

The Grounds of Appeal

[8]The appellant has some seven (7) grounds of appeal complaining of errors made by the learned judge. These may be summarised as follows: (1) that she erred in law in her treatment of hearsay evidence; (2) that she erred in her finding of fact that the witness had failed to state the source of her information; (3) that her striking out of the entirety of paragraphs 26, 27 and 28 was inconsistent with her earlier express ruling contained at paragraph 12 of her judgment; (4) that she made factual findings contrary to the evidence before her; (5) that she in essence misapplied CPR 33.16 and wrongly exercised her discretion in relation to a witness summons application under Part 33 of CPR 2000.

[9]The first three issues concern the Witness Statement while the remaining two relate to the Witness Summons. I propose to deal with them in that order.

Hearsay Statements Contained in the Witness Statement

[10]No issue has been taken with the learned judge’s conclusion that the Witness Statement has satisfied the 21-day notice requirement under section 36E of the Evidence Act. There is no counter appeal in relation to this or any other finding made by the learned judge. The appropriate starting point then must be with section 36E of the Evidence Act, which may be said to be a statutory relaxation of the common law rule against the admission of hearsay evidence. The relevant portion of section 36E states as follows: “(1) Subject to section 36G[7], in any civil proceedings, a statement made, whether orally or in a document or otherwise, by any person (whether called as a witness in those proceedings or not) shall, subject to this section, be admissible as evidence of any facts stated therein of which direct oral evidence by him would be admissible. (2) Subject to subsection (6), the party intending to tender such statement in evidence shall, at least twenty-one days before the hearing at which the statement is to be tendered, notify every other party to the proceedings as to the statement to be tendered, and as to the person who made the statement. (3) Subject to subsection (4), every party so notified shall have the right to require that the person who made the statement be called as a witness. (4) The party intending to tender the statement in evidence shall not be obliged to call as a witness, the person who made the statement if it is proved to the satisfaction of the Court that such person – (a) is dead; (b) is unfit, by reason of his or her bodily or mental condition, to attend as a witness; (c) is outside of Grenada and it is not reasonably practicable to secure his attendance; (d) cannot be found after all reasonable steps have been taken to find him; (e) is kept away from the proceedings by threats of bodily harm. (5) Where in any civil proceedings a statement which was made otherwise than in a manner and admissible by virtue of this section, by the person other than direct oral evidence by the person who made the statement or any person who heard or otherwise perceived it being made shall be admissible for the purpose of proving it. (6) The Court may, where it thinks appropriate having regard to the circumstances of any particular case, dispense with the requirements for notification as specified in subsection (2). (7) Where the party intending to tender a statement of evidence has called as a witness in the proceedings, the person who made the statement, the statement shall be admissible only with the leave of the Court.” (Emphasis added).

[11]It is always important to bear in mind one cardinal principle when considering the question whether statements are hearsay. That is, evidence is only ‘hearsay’ when tendered to prove the truth of the facts asserted. It is not hearsay when tendered simply to show that the statement was made.8

[12]The respondent in her written submissions says in essence that the learned judge was careful to strike out only those parts of the Witness Statement which violated legal principles.

[13]Before addressing the main arguments of the appellant challenging the bases on which the learned judge struck out the various parts of the Witness Statement as hearsay, I think it necessary to make this observation. It seems to me that once the learned judge had gotten to the stage where she decided that the 21-day notice condition had been satisfied, it would have triggered the question whether a strike out on the basis of hearsay could be sustained at that stage for failure to satisfy the other conditions under section 36E of the Evidence Act as the learned judge found. The Other Conditions Under Section 36E of the Evidence Act

[14]In relation to section 36E(3), the learned judge appears to accept, without more, the argument put forward by the respondent to the effect that section 36E(3) had not been met because, said the respondent in her strike out application, it requires the maker of the hearsay statements to be present since the respondent ought to be given an opportunity to test the veracity of the statements under cross- examination. Plainly, what section 36E(3) of the Evidence Act contemplates is that the party who is served with a statement containing hearsay evidence make known to the party serving the same that the party so served will require the maker of the statements to be called as a witness. Nowhere in the evidence in support of the strike out application is it even hinted that such requirement was made known to the appellant. Indeed, section 36E(3) of the Evidence Act contemplates a step to be taken by the party served with hearsay evidence. Accordingly, with the utmost respect to the learned judge, it is difficult to fathom the basis on which it could be concluded without more that condition 36E(3) had not been met by the appellant. In my view it was a step to be taken by the respondent and then, upon being met with a bare refusal or reasons which could not pass muster under 36E(4), the respondent would be justified in launching her nuclear attack on the Witness Statement by way of a strike out application.

[15]The learned judge concluded that the condition contained in section 36E(4) of the Evidence Act had also not been met. This appears to be on the basis of paragraph 6 of the Attorney’s affidavit in response to the respondent’s strike out application,9 where the Attorney states that ‘Mable Phillip herself would have been able to give evidence of [if] she was physically able to testify herself’ coupled with paragraph 41 of the Witness Statement and referred to at paragraph 15 of the judgment. The learned judge went on to point out at paragraph 16 that the deposition of a witness could be taken by an examiner prior to trial and could be done at a witness’s home or even a hospital, having regard to CPR 33.7. On this basis she ruled the statements inadmissible. The difficulty with this line of reasoning by the learned judge is that it seems to proceed on the assumption that (a) the respondent had made known to the appellant that she was being required by the respondent to be called as a witness and (b) that the appellant, armed with knowledge of this requirement, had an opportunity to put before the court evidence which may have satisfied one or more of the circumstances specified in 36E(4), or which may have engaged the learned judge in a consideration of appropriate measures to be taken under CPR 33.7, for example, arranging for the evidence of the appellant to be taken at a different time and place. But this is not what happened. Rather, the respondent’s approach was to launch what can only be considered as a pre-emptive strike against the Witness Statement without any regard for the way in which section 36E of the Evidence Act is intended to operate. The learned judge was persuaded and in my view was led into error by engaging in a premature consideration in respect of this aspect of the matter. The statements contained in paragraph 41 of the Witness Statement and paragraph 6 of the affidavit simply do not afford a sufficient basis entitling the learned judge at that stage to conclude that the appellant had not met conditions 36E(3) and (4). This led her to erroneously conclude that such of the statements that she found to be hearsay were inadmissible. This, in my view, would be sufficient to dispose of this part of the appeal.

Were the Challenged Statements Hearsay?

[16]The appellant contends that statements in paragraphs 6, 14 and 26 of the Witness Statement do not fall within the definition of hearsay.10 She says that the statement in paragraph 6 is not made in order to prove the truth of the statement but in essence merely to show that the statement was in fact made by way of explaining why the Attorney and her siblings did not interfere with the appellant’s financial affairs. As such, it ought not to be classified as hearsay. I agree.

[17]With respect to paragraph 14 of the Witness Statement, the appellant says that the statements therein contained cannot be classified as hearsay. I agree. There is nothing in paragraph 14 of the Witness Statement which fits the definition. There is nothing in that paragraph to suggest that the Attorney is there making statements of which she personally has no knowledge.

[18]With respect to paragraph 26 of the Witness Statement, the appellant contends that it was not being sought to give evidence of a statement made to the witness by someone else. Rather, the witness was merely reciting and relying on the citations made in a power of attorney duly recorded as a deed and disclosed on the appellant’s list of documents. This in my view does not fit the definition of hearsay. The Attorney witness seems to do no more than state the basis on which she says she knows that the appellant was in a home for the aged and could not transact banking business in person. The witness herself can be liable to be examined as to her basis for this knowledge. There is no indication that it is not intended to call the Attorney as witness at trial. I agree that this cannot be regarded as hearsay.

[19]With regard to paragraph 28 of the Witness Statement, the appellant contends that the same contains statements not only of information given to the Attorney by the appellant, but also gives the Attorney’s own observations of matters seen by her. I agree. It must also be remembered that the Attorney witness stands in the shoes of the appellant. She is the appellant’s attorney in fact or legal agent. I can see no basis for holding that the last sentence in this paragraph amounts to hearsay given the fact that the witness appears to be speaking as to matters in respect of which she has personal knowledge.

[20]With respect to the first two sentences in paragraph 29 of the Witness Statement, I reiterate the observations made at paragraphs 13, 14 and 18 above. Further, the Attorney also spoke as to her own observations as to the appellant’s general appearance as well as in reliance upon a medical report issued by Dr. Layne which was disclosed on her list of documents. I agree that no sound reason has been advanced for striking out any of the statements contained in paragraph 29 of the Witness Statement.

[21]In reference to paragraph 34 of the Witness Statement, I agree with the appellant that there is no basis for striking the statements contained therein as being hearsay. There the Attorney witness appears to speak from her own knowledge of what the appellant did and not what someone told her the appellant did.

Failure to Disclose Source of Information

[22]This basis for striking out was not specifically stated in the strike out application, but nonetheless various portions of the Witness Statement as set out above were struck out on this ground. The appellant contends and I agree that when the entirety of paragraph 5 is read, the inference is clear as to the source of the witness’s information and belief. She described how she kept in touch with the appellant. Accordingly the learned judge erred in striking out the first sentence in paragraph 5.

[23]In respect of paragraph 16 of the Witness Statement, it appears that the Attorney witness speaks from personal knowledge. Paragraphs of a witness statement are not to be read in isolation and subjected to sterile construction. Neither is it the role of the judge to speculate as to whether the basis of knowledge expressed or reasonably inferred is convincing or otherwise. That is the role of the examiner. Further, as the appellant contends, the foundation may be said to have been set beginning at paragraph 13 of the Witness Statement, where she says that the appellant was then staying with her.

[24]In respect of paragraphs 21 and 34 of the Witness Statement, I repeat the observations I have made in the preceding paragraph. I can see no basis for the learned judge assuming that the information contained therein is from a source other than the Attorney witness. In my view the learned judge was wrong to strike them out for this reason.

Striking Out the Entirety of Paragraphs 26, 27 and 28

[25]The appellant justifiably complains that the learned judge’s striking out of the entirety of paragraphs 26, 27 and 28 was inconsistent with her express finding where she found that only the last sentence in paragraphs 26, 27 and 28 was hearsay. No other reason has been given by the learned judge for striking out the entirety of the paragraphs. As such, the striking out of the entirety of those paragraphs at paragraph 31 of her judgment could only be treated as having been done in error. The Witness Summons – Unsupported Factual Finding

[26]The learned judge, at paragraph 30(a), said that it could not be ignored that the appellant stated that since February she was aware that she needed a production order in respect of the documents from the Bank to be produced; yet the appellant waited some five weeks after the deadline for serving witness statements and case management had passed. This delay was a factor which weighed against the appellant. The appellant says that this factual finding was incorrect as the evidence was that the request for the documents was made to the Bank on 21st February 2014 and it was not until the Friday before 24th March 2014 that the Bank responded to the effect that the documents requested would only be produced by court order.11 An application for permission to issue the Witness Summons was filed on 1st April 2014 – less than two weeks after the Bank’s response.

[27]The respondent in her submissions points to the fact that disclosure was ordered to be by 17th January 2014 and argues that the appellant must have known that the documents required from the Bank were crucial to her case from the start, yet she did nothing until 21st February 2014, by writing to the Bank to produce the documents in the possession of the Bank, by which time the respondent had presented her case.

Discussion

[28]CPR 2000 provides that a party’s duty to disclose documents is limited to documents which are or have been in the possession or control of that party.12 There is no indication that the appellant had failed to file her list of documents in respect of which she had possession and control. Indeed there were many references to the appellant’s list of documents. This is what would have been contemplated in the case management order for disclosure. Further, I have been unable to discern any provision in CPR 2000 dealing with witness summonses which contemplate or require that permission for a witness summons ought to be made at case management or in any event before witness statements are filed. As matters then stood, the proceedings were at the pre-trial review stage, but importantly, no trial date had been fixed. Part 33 of CPR 2000 allows for a witness summons to be issued without the court’s permission in certain circumstances. For example, a witness summons issued more than 21 days before the date fixed for trial would not require the court’s permission.13 In other instances, the court’s permission to issue a witness summons is required. One such instance is where it is to be issued less than 21 days before the day fixed for trial. Here no trial date was fixed. The other instance is where the requesting party wishes to have a witness attend court to give evidence or produce documents on a date different to the date fixed for trial.14 Normally the request is for a date prior to trial or on the date fixed for trial. In short, as was said by Lord Justice Moore Bick in Tajik Aluminium Plant v Hydro Aluminium AS and others15 ‘[a]lthough the form of the procedure is different … a witness summons requiring production of documents is in essence the same as the former writ of subpoena duces tecum.’ Having regard to the tenor and thus the purpose of Part 33 of CPR 2000, the application for permission to issue the Witness Summons could not be considered as not being expeditious. No trial date had as yet been fixed. The matter had reached only the stage of a pre-trial review. Further, the learned judge appears to have overlooked the plenitude of case management powers which were at her disposal on a pre-trial review.16 Accordingly, I am satisfied that the learned judge misapprehended the factual basis and further, had regard to irrelevant considerations. The Witness Summons – Exercise of Discretion [28] The respondent relies on the well-established principle that an appellate tribunal will only interfere with the exercise of a judicial discretion if the judge failed to consider relevant factors or considered irrelevant factors or misapplied the law. She says that none of these factors obtain in the present case. The appellant, on the other hand, says that the learned judge misdirected herself regarding the correct interpretation and application of the law in relation to a witness summons – in essence she made an error of principle and relies on the case of Tajik.

Discussion

[29]The learned judge concluded that the Witness Summons was an application for specific disclosure. No reason is provided for coming to that view. Here, the appellant was seeking to compel the Bank, a non-party, to produce specifically identified documents listed on the application to the court. In essence, what was being sought was nothing more than what under the old rules regime would have been a subpoena duces tecum. This had become necessary as it had become clear given the Bank’s response that it was not prepared to produce to their customer (the appellant), documents relating to the operation of her own account with them unless compelled by court order to do so.

[30]The learned judge quite correctly opined that CPR 28.5, which deals with specific disclosure in respect of a party, was inapplicable. Here, the appellant was not seeking specific disclosure from the respondent. She was seeking the production of specific documents from her bankers bearing on the operation of her own account which were clearly relevant to the issues joined in the case. In essence, the respondent did not appear to challenge the fact or size of the withdrawals from the Account. Indeed, her assertion is that she was not the person who made the withdrawals. The documents may very well have an adverse effect on the respondent’s case. It may be that the documents bolster the appellant’s case. Whichever of the two purposes they serve, the test of relevance is satisfied.

[31]It does not appear that the learned judge addressed her mind to the entire regime dealing with Witness Summonses under Part 33 of CPR 2000 save and except for CPR 33.16 dealing specifically with an early appointment to produce documents. This is notwithstanding the fact that the Witness Summons application stated on its face that it was made pursuant to Part 33 of CPR 2000 and the appellant’s submissions below placed reliance on CPR 33.2 and 33.3. Had the learned judge given due regard to CPR 33.2 and 33.3 as well as the nature and purpose of the Witness Summons in the circumstances presented, she would no doubt have avoided the pitfall into which she fell by having regard to irrelevant considerations and generally misapprehending the very nature of the application. Her conclusion that the application was one for specific disclosure, with utmost respect, was wrong. The Witness Summons application was precisely what it was stated to be – both in form and substance. In this regard, the statements of Lord Justice Moore Bick in Tajik,17 when considering the equivalent provisions in the English Civil Procedure Rules, are quite instructive and I adopt them: “Whatever may be the origin of the present rules, there are in my view clear distinctions to be drawn between an order for disclosure made against a third party and a witness summons to produce documents. An order for disclosure normally directs the person to whom it is addressed to carry out a reasonable search for documents in his possession falling within classes which are often broadly described and to list them for the information of the parties to the proceedings. Often the documents are described in terms which call for the exercise of a degree of judgment in determining whether a particular document does or does not fall within the scope of the order. Any order of that kind, being an order of the court, is one that must be strictly obeyed, but it would be extremely unusual for a penal sanction to be attached to it or for a failure to comply in some material respect to be treated as a contempt of court, save in the case of a contumacious refusal to obey. Moreover, although disclosure is usually a prelude to production for inspection, the person giving disclosure may resist production, if he has grounds for doing so, and in any event has no obligation to do more than make the documents available to the party who has obtained the order. A witness summons to produce documents, by contrast, involves the exercise of the court's coercive powers. The person to whom it is addressed is at risk of being in contempt of court if he fails to comply in any material respect, as the summons itself makes clear. He is obliged to bring the documents to which the summons refers to court, not simply to list them or make them available for inspection. In substance a witness summons to produce documents is no different from a subpoena duces tecum and the differences between such a summons and an order for disclosure are reflected in the different procedures provided by rr 31.17 and 34.2.”

[32]Lord Justice Moore Bick, drawing on earlier authorities, further provided useful guidance at paragraph 25 of his judgment as to the factors the court needs to keep in mind when exercising the jurisdiction. He opined that ‘the documents to be produced had to be specifically identified, or at least described in some compendious manner that enabled the individual documents falling within the scope of the subpoena to be clearly identified.’ The listing on the application met that criteria. The rationale for this is easily understood having regard to the coercive nature of a subpoena and in similar terms, a witness summons.18

[33]While it is true that CPR 2000 offers no guidance as to the considerations the court should have regard when considering whether to permit the issuance of a witness summons, it is helpful to consider the guidance given under the old rules in relation to subpoenas. Neuberger J in Harrison and Another v Bloom Camillin (a firm)19 approved this approach. I would adopt a similar approach in relation to a witness summons under our CPR 2000 which is silent in this respect. I would accordingly hold that the court, in deciding whether to give permission to issue a witness summons where permission is necessary, should seek to ensure that the procedure is not being abused, that it is utilised in good faith for the purpose of obtaining relevant evidence and is not a fishing expedition, speculative, oppressive, does not offend against public interest immunity and such like considerations. This is not intended to be exhaustive and much may depend on the circumstances of each particular case. In any event no circumstances have been put forward to suggest that any of these factors have been made out on the evidence before the judge.

[34]In the present case, it is fair to say that the learned judge did not address her mind to these types of factors. This may have been the result of the learned judge mischaracterizing the nature of the application and treating it as one seeking specific disclosure. The conclusion that it was an application for specific disclosure in my view was a fatal error in principle and further led the learned judge into error in having regard to irrelevant considerations. The criticisms levelled at the learned judge by the appellant in respect of matters to which she accorded much weight, such as prejudice to the respondent and delay, rather than focusing her mind on the considerations referred to at paragraph 33 above, are well founded. She exercised her discretion on wrong principles and her refusal to give permission cannot stand. Having regard to the fact that a trial date has not yet been fixed, I would remit the matter of the date, time and place in respect of which the Witness Summons should issue for the attendance and production of the documents by the Bank to a judge of the court below.

Conclusion

[35]Based on the conclusions I have reached above I would allow the appeal and set aside the order of the learned judge made on 30th June 2014 in respect of paragraphs 31(b),(c),(f), (g), (h),(i), (j) and (m) with the exception of paragraphs 33 and 38 of the Witness Statement referred to at paragraph 31(m) of the judgment. I would also, for the reasons I have given, set aside the order of the learned judge dismissing the witness summons application and order that the same be issued subject to a judge in the court below fixing the time, date and place for the attendance of the witness for the purpose of producing the documents. I would also set aside the costs orders made in the court below and order that the respondent pays the costs of the appellant below assessed in the sum of $2,500.00 in respect of both applications and costs on this appeal fixed at two thirds of that sum. Dame Janice M. Pereira, DBE Chief Justice I concur. Louise Esther Blenman Justice of Appeal I concur.

Mario Michel

Justice of Appeal

EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL ANTIGUA AND BARBUDA ANUHCVAP2014/0030 FRANCISCUS PETRUS VINGEHOEDT (also known as Frans Vingerhoedt) Appellant and STANFORD INTERNATIONAL BANK LIMITED (IN LIQUIDATION) (Acting by and through its Joint Liquidators, Marcus A. Wide and Hugh Dickson) Respondent Before: The Hon. Dame Janice M. Pereira, DBE Chief Justice The Hon. Mde. Louise Esther Blenman Justice of Appeal The Hon. Mde. Gertel Thom Justice of Appeal Appearances: Ms. E. Ann Henry, QC, with her, Ms. C Debra Burnette for the Appellant Mr. Malcolm Arthurs, with him, Ms. Nicolette Doherty for the Respondent 2014: November 24; 2015: January 26. Civil appeal – Hearsay evidence – Whether the learned trial judge erred in admitting transcript into proceedings – Whether the trial judge admitted hearsay evidence under section 29 of the Evidence (Special Provisions) Act, 2009 The respondent filed an application to adduce hearsay evidence from the transcripts of US criminal proceedings (“US Transcript”), in the case of United States of America v Robert Allen Stanford. It relied on sections 29 and 30 of the Evidence (Special Provisions) Act, 2009 (“the Act”). Alternatively, they sought to rely on the transcript as a non-hearsay record of what was said at the criminal trial and not for the truth of what was stated in order to show that the joint liquidator’s understanding of the fraud is consistent with the evidence given by witnesses in the criminal proceedings. The learned trial judge ordered that the US Transcript be allowed into evidence as evidence and proof of the words that were spoken in those proceedings and by whom they were spoken, but not as evidence of the truth of what was stated. The appellant filed an application for leave to appeal that order on the main basis that the probative value of the hearsay evidence is outweighed by the prejudicial effect. The application was treated as the appeal. Held: dismissing the appeal and awarding costs on the appeal to the respondent to be assessed unless agreed within 30 days, that: Section 29 of the Act does not make hearsay evidence admissible in circumstances where it would otherwise be inadmissible. It merely obviates the need for formal proof of its authenticity which was otherwise required by common law. Moreover, it does not provide an exception to the hearsay rule. The test as to whether the evidence falls within an exception to the hearsay rule so as to be admissible without formal proof under section 29 of the Act must still be applied. If the evidence is hearsay evidence not falling within any exception to the rule then such evidence will be inadmissible whether or not section 29 of the Act exists. Section 29 of the Evidence (Special Provisions) Act, 2009 applied; Merck & Co. Inc v Apotex Inc. (T.D.) [1998] 3 FC 400 applied. Evidence of a statement made to a witness by a person who was not himself called as a witness is not hearsay evidence and is admissible when it seeks to establish by the evidence not the truth of the statement but the fact that it was made. The learned trial judge explicitly stated that it was for that purpose he was admitting the US Transcript. Given that the US Transcript was not admitted as evidence of the truth of what is stated therein, but rather as evidence in proof of the fact of what was stated and by whom, there has been no breach of the hearsay rule. Subramaniam v Public Prosecutor [1956] 1 WLR 965 applied. JUDGMENT

[1]PEREIRA CJ: the appellant, sought leave to appeal the decision of the learned trial judge, in respect of an order made on 1st August 2014, in which on application of the respondent to adduce hearsay evidence, he ordered that the transcripts of the US criminal proceedings in the case known as United States of America v Robert Allen Stanford, which took place between 23rd January 2012 and 8th March 2012 the US Transcript”) are allowed into evidence as ‘evidence and proof of the words that were spoken in those proceedings and by whom they were spoken, but not as evidence of (“the truth of what was stated’. (“the trial window which was fixed for November was no longer feasible as the appellants, being dissatisfied with that order, sought leave to appeal on 15th August 2014 as well as a stay of (the proceedings in the court below pending the determination of the appeal.

[2]The application came on for consideration before a single judge of the Court on 23rd September 2014 whereupon the application was referred to the Full Court under rule 62.2(5) of the Civil Procedure Rules 2000. The Full Court at its sitting in November 2014, with the consent of the parties, treated the application for leave to appeal as the appeal. The appellant’s complaint

[3]the gravamen of the appellant’s complaint is essentially that the ‘hearsay evidence’ will be of no probative value (not being admitted as proof of “The truth of what was said) but on The other hand will be highly prejudicial to The appellant who will be unable to test the evidence by cross-examination “and that substantial excerpts from “The US Transcript are: included in the witness statement of Mr. Marcus Wide on which he has expressly relied as the basis on which he reached certain conclusions which are highly prejudicial to the appellant.

[4]As The basis supporting the application for a stay, the appellant says that the US Transcript is voluminous and if it is to be included in the bundle for trial it will considerably impact on the amount of time for the trial, and the attendant costs thereof. The stay was ‘not resisted by the respondent as it was considered the appropriate course pending the delivery of the Court’s decision as to the correctness of the learned trial judge’s decision.

[5]It is common ground between The parties that: “The common law rule against the admissibility of hearsay evidence subject to known exceptions represents the state of the law in Antigua and Barbuda. This is unlike the UK where The common law rule has been statutorily modified by the Civil Evidence Act 1995 of the UK which permits the admission of hearsay evidence in civil proceedings once certain procedures are followed. The decision of the trial judge

[6]the learned trial judge delivered an oral ruling which has been captured and produced from the transcript of The proceedings. He noted that the respondent had given notice of their intention to adduce The US Transcript (with a copy served on The appellant) and that The respondent wished to have the US Transcript admitted as evidence and proof of its contents and relied on section 29 of The Evidence (Special Provisions) Act, 2009 (“the Act”) as well as section 30 of the said Act. Of relevance, is section 29(1) which states as follows: “(1) Evidence of a proceeding or record of, in or before a court in Antigua and Barbuda, Great Britain, a British Overseas Territory or Dependency or a foreign country may be given in a proceeding by an exemplification or certified copy of The proceeding or record, purporting to be under the seal or hand of the court, without any proof of the authenticity of the seal or signature.” The learned trial judge opined, rightly in our view, that section 29 of the Act does not in terms say that evidence of such proceeding or record is evidence of the truth of such statements contained in the proceedings or record. He further opined that section 29 of the Act did more than merely provide for proof of the fact that a certain proceeding had occurred, as advanced by counsel for the appellant, as in his view, section 29 spoke not only to evidence of a proceeding but spoke also to evidence of a record.

[7]the learned judge also noted that the respondent had also contended that “If the Court is not persuaded of The claimant’s primary case, the Claimant will seek to rely on the transcript as a non-hearsay record of what was said at the criminal trial’; ‘and not for the truth of what is stated in order to demonstration (sic) that the joint liquidator’s understanding of the fraud is consistent with the evidence given by witnesses in the criminal proceedings.”

[9]The learned trial judge most carefully reminded himself that there is a distinction (and I agree) to be drawn between a statement as evidence of the proof of what a person said, on the one hand, and a statement as evidence of proof that what was said was true, on the other. After considering the Canadian case of Merck & Co. Inc v Apotex Inc. (T.D.) on which counsel for the appellant placed much reliance as to the construction to be placed section 29(1) of the Act which is said to be in pari materia to section 23 of the Canada Evidence Act, as well as having regard to other authorities such as Subramaniam v Public Prosecutor, Myers v Director of Public Prosecutions and other well-known texts on the law of evidence including Phipson on Evidence and the several common law exceptions to hearsay evidence therein stated, concluded thus: “Now the transcripts themselves have not been exhibited in regard to these proceedings so far… So the court cannot be certain either way whether or not any of the things reported to have been said in these transcripts fell within any of those exceptions. In particular, whether they amount to an admission or a confession such as — was allowed as an exception under the English Common Law. Where this leaves us, therefore, is that I will allow the transcripts into evidence as evidence and proof of the words that were spoken in the US criminal proceedings and who spoke them, in other words, as evidence of the record in those proceedings, but not as evidence for the truth of what was stated.” The arguments on Appeal

[8]The learned judge cited from the Irish decision of Peter Cullen v William Clarke relied upon by counsel for the appellant which gave the classic statement of principle in relation to the rule against hearsay. Kingsmill Moore J put it this way: in view of some of the arguments addressed to the Court, it is necessary to emphasise that there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross examination and has not the sanctity of an oath. This is the rule known as the rule against hearsay. … [E]vidence may properly be given of words uttered by persons who are not called as witnesses … where the utterance of the words may itself be a relevant fact, quite apart from the truth or falsity of anything asserted by the words spoken. to prove, by the evidence of- a witness who heard the words, that they were spoken, is direct evidence, and in no way encroaches on the general rule against hearsay”. (Emphasis added).

[12]My understanding of the decision in Merck is that section 23 of the Canada Evidence Act does not thereby make Hearsay evidence which would be inadmissible as a general rule, admissible. in essence, where the evidence would be hearsay then it remains hearsay and inadmissible unless it comes within one or more of the exceptions to the hearsay rule. Put another way, the section does not in and of itself create an exception to the hearsay rule. It merely obviates the need for formal proof so that the hearsay rule remains intact.

[10]the arguments on appeal were substantially a re-run of the arguments made to the learned judge. below. Counsel for The appellant again relied heavily on the Canadian case of Merck as being highly persuasive as to the interpretation which should be placed on section 29 of the Act. Section 23 of The Canada Evidence Act states in part as follows: evidence of any proceeding or record whatever of in or before any court in Great Britain, the Supreme Court … or of any other foreign country … may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal of The Court without any proof of the authenticity of the seal … or other proof whatever.”

[11]In Merck, the plaintiffs in the proceedings in the Federal Court sought to show why the defendant and its CEO should not be found in contempt of court and sought to introduce documents from a judicial review application in the Ontario Court. They relied upon the Canada Evidence Act sections 23, 24 and 30. They intended to use such evidence, particularly the evidence of the CEO among other witnesses, as evidence of the assertions then made. Among the issues for determination was the question whether section 23 of the Canada Evidence Act provided a gateway for the admission of hearsay. evidence. It was held That the evidence that the plaintiffs sought to introduce was precluded from admission by the hearsay rule unless admissible by some exception thereto. That the provisions of the Act relied upon merely facilitate admission of documentary evidence which meets the requirements for admission under some exception to the hearsay rule but do not themselves provide the exceptions except to the extent that they permit admission without formal proof that would otherwise be required at common law of the authenticity of the documents in question.

[13]Similarly, I do not consider that section 29 of the Act makes hearsay evidence admissible in circumstances where it would otherwise be inadmissible. Like the Canadian provision it merely obviates the need for formal proof of its authenticity which was otherwise required by common law. the test as to whether the evidence falls within an exception to the hearsay rule so as to be admissible without formal proof under section 29 of the Act must still be applied. If the evidence is hearsay evidence not falling within any exception to the rule then such evidence will be inadmissible whether or not section 29 of the Act exists. In short, the test for admissibility of evidence is a wholly different consideration to the question as to the formalities required for admission once The evidence has passed the test of admissibility. Did the trial judge admit hearsay evidence Under Section 29 of the Act

[14]Having concluded as to the scope of section 29 of the Act, I return to the question as to whether the learned trial judge’s decision in admitting the US Transcript in Evidence in the proceedings ‘as evidence and proof of the words… spoken… and by whom… but not as evidence of the truth of what was stated’ is, in essence, an admission into evidence of hearsay evidence under section 29 of the Act This requires a return to a consideration of the principles relating to the rule against the admission of hearsay evidence discussed In the cases and treatises on the subject referred to earlier.

[15]Learned Queen’s Counsel for the appellant sought to distinguish the position as it relates to the case at bar from the circumstances considered by the Privy Council in Subramamiam v Public Prosecutor relied on by the respondent. In Subramamiam, the appellant had been charged and found guilty of possession of ammunition without lawful excuse. At trial he had put forward the defence that he had been captured by terrorists and that at all material times he had been acting under duress. He sought to give evidence, in describing his capture, of what the terrorists said to him but the trial judge ruled the evidence of the conversation with the terrorists was not admissible unless they were called. In the end, the trial judge said he could find no evidence of duress with the result that the appellant was convicted and sentenced to death. On appeal, the Privy Council held that the trial judge was in error in ruling out peremptorily the evidence of conversation between the terrorists and the appellant. They ruled that evidence of a statement made to a witness by a person who was not himself called as a witness was not hearsay evidence and was admissible when it was proposed to establish by the evidence not the truth of the statement but the fact that it was made. Statements could have been made to the appellant by the terrorists which, whether true or not, if they had been believed by the appellant might reasonably have induced in him an apprehension of instant death if he failed to confirm to their wishes. Such evidence, their Lordships considered, might have afforded cogent evidence of duress. In their Lordships’ judgment the following passage appears: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that a statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.”

[19]For the foregoing reasons, I would dismiss this appeal and order that the appellant bears the respondent’s costs on this appeal to be assessed unless agreed within 30 days. Dame Janice M. Pereira, DBE Chief Justice I concur. Louise E. Blenman Justice of Appeal I concur. Gertel Thom Justice of Appeal

[16]This statement of principle was recently endorsed by The CCJ in Ganga Charran Singh v Ram Singh et al, an appeal from a decision of the Court of Appeal of Guyana. I have not been able to discern any reason for distinguishing the general principle enunciated in Subramanian from its application in the present case. I am more persuaded by the submissions of the respondent on this issue.

[17]Given the learned judge’s observations to which I have referred at paragraph 9 above, it is clear that the learned judge was meticulous in his ruling and made clear that the admission of the US Transcript was admitted into evidence not as evidence of the truth of any statements contained in the record but merely as evidence and proof of the words spoken and by whom. He was, as he stated, in no position to determine its admissibility for any other purpose at this stage. This will no doubt be an exercise to be carried out at the actual trial when he will be best placed to do so. His clear ruling makes it pellucid that he did not admit the US Transcript as hearsay. evidence under section 29 of the Act, but rather as direct evidence for the purpose stated. As such There has been no trampling of the rule against hearsay as explained in Subramaniam by his decision. Neither can it be said in any event that he disregarded the construction placed on section 29 of the Act by reference to Merck. Indeed the proposition of law contained in Merck in construing section 23 of the Canadian Act, is not at odds with the proposition of law for which Subramaniam stands. In my view, they complement each other.

[18]Given that the US Transcript has not at this stage been admitted as evidence of the truth of what is stated therein, but rather as evidence in proof of The fact of what was stated and by whom, there has been no offending of the hearsay rule. the learned judge was quite alive to this having regard to his conclusion reached as set out in paragraph 9 above. this leads me to conclude that the appellant’s complaint in respect of prejudice may at this stage be premature and may well be an argument for another day before the trial judge when the substantive matter comes on for trial. Conclusion