republic of trinidad and tobago in the court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL (CHAMBER COURT)

Civil Appeal No. P381 of 2019

Claim No. CV2017-01036

BETWEEN

VIJAY SAMAROO

Intended Appellant/Defendant

AND

INSHAN ISHMAEL

TRADING AS THE ROLL ON ROLL OFF CENTRE

Intended Respondent/Claimant

BEFORE THE HONOURABLE JUSTICE VASHEIST KOKARAM, J.A. Appearances: Mr. Shodan Mahabir instructed by Ms. Zenitaa Singh, Attorneys at Law for the Intended Appellant. Mr. Ravindra Nanga, Attorney at Law for the Intended Respondent. Date of Delivery: Wednesday 6 May 2020

JUDGMENT1

1. The window of time for filing an appeal by Mr. Vijay Samaroo2, against a judgment which

1A virtual hearing was convened on 27th April 2020 pursuant to the Practice Direction-Hearings by Electronic Means 2020. By email sent to the parties I determined that this matter was fit for hearing pursuant to the Covid-19 Practice Directions- Emergency Direction 2020. The parties complied with the Court’s directions to file their affidavits and written submission electronically pursuant to the Practice Direction-Filing by Electronic Means. The parties agreed that this judgment can be delivered to them by email. 2 The Intended Appellant

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ordered him to pay a significant sum as damages to Mr. Inshan Ishmael3 closed on 25th

November 2019. Mr. Samaroo failed to meet his deadline to file his appeal prescribed by Rule

64.5(b) of the Civil Proceeding Rules 1998 (CPR). He has now made a stirring and sympathetic

plea to this Court by his two applications4 to re-open that window to extend time for him to

file his appeal and to stay the execution of the trial judge’s order pending the determination

of his appeal. That order was made at the end of the trial of Mr. Ishmael’s claim against Mr.

Samaroo for damages for negligence arising out of a fire at Mr. Ishmael’s business premises.

The trial judge had found among other things that Mr. Samaroo’s negligence was the cause

of Mr. Ishmael’s loss.

2. Mr. Samaroo intended to appeal that decision but unfortunately his father passed away soon

after the judgment was delivered. Overcome with grief he became distracted and the

deadline for the filing of the appeal passed by. Later his sister in law also died. The

applications referred to Mr. Samaroo’s attempt of trying to get funds to pay the judgment

debt, and only rousing to action to file the appeal after the time expired. To compound his

misfortune he has revealed that he is a man of very little assets and is indebted to other

creditors. He feels aggrieved over some of the trial judge’s findings of fact and has been

advised by his attorneys that his chances of success in an appeal to reverse those findings are

good.

3. While Mr. Samaroo like any other litigant has to bear the scourge of life’s unexpected

challenges and the risks attendant with negative litigious results, a Court must also weigh in

the balance the anguish of Mr. Ishmael. His premises were destroyed by a fire resulting in

millions of dollars in losses in 2013. The trial judge has found that the fire broke out as a result

of Mr. Samaroos’ negligence. Some seven (7) years after that fire, Mr. Ishmael has finally

obtained judgment. Subjecting himself to the discipline of the CPR he has waited this long for

finality in his dispute. An extension of time to appeal would translate a final judgment into

the uncertainty, anxiety and risks attendant on the appellate process. A Court must always

3 The Intended Respondent 4 Before the Court are his two applications dated 21st February 2020 Before the Court are two applications dated 21st February 2020 for an extension of time to file the Notice of Appeal and for a stay of execution of the orders of the Madame Justice Kangaloo made on 14th October 2019.

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be sensitive to the real plight of litigants and it is for this reason I reserved judgment in this

matter due to the enormity of the claim and the vast consequences of this matter for both

men. Ultimately, the humanism with which the Court treats litigants must meet the discipline

of case management embodied in the simple yet profound maxim of the “overriding

objective” that is to deal with cases justly. To deal with a case justly requires the Court to be

mindful to its role in mediating the tension between the competing rights of disputants within

the context of proportionality, economy, equality and procedural fairness.5

4. Mr. Samaroo has painted a tragic picture. There was a serious bundling by his attorneys in

trying to file his appeal. While Mr Samaroo had to deal with his personal loss, Mr. Ishmael

had to endure his own tragedy as a result of the fire in 2013. The trial was the end result of a

long, hard, civil battle between these two gentlemen.

5. In exercising a wide case management discretion to extend time pursuant to Rule 26.1(1)(d)

CPR, the Court is equipped with a valuable checklist to guide its process in giving effect to the

overriding objective. The checklist includes those factors set out in Rule 26.7 CPR together

with prejudice and the merits of the appeal which must be carefully balanced and weighed

within the context of the overriding objective. Ultimately, after carefully balancing these

considerations, Mr. Samaroo’s application for an extension of time must fail for the reasons I

have set out in this judgment. Further, his application for a stay of execution was bereft of

the detail and evidence necessary to convince this Court that even if the window could be re-

opened to file an appeal, that it would be just to stay the execution of the judgment.

6. Of course independent of the demands of the CPR, lies the power of both men to find suitable

means to resolve their outstanding dispute, a conversation which I began with both parties

and which I hope can translate to further meaningful negotiations.

7. In this judgment I will briefly examine the main dispute and brief facts leading to these two

applications and examine the applicable principles that govern them to determine the main

issues:

5 Procedural Fairness: A Manual: A Guide to the Implementation of Procedural Fairness in the Court Systems of the Judiciary of the Republic of Trinidad and Tobago by the Judicial Education Institute (JEI).

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a) Should the Appellant be allowed an extension of time of 88 days to file its appeal? In

considering this issue this judgment will explore the role of the merits of the appeal

as a consideration to be taken into account by the Court in the exercise of its

discretion.

b) If the window of time is to be extended, whether in all the circumstances it is just to

grant a stay of execution pursuant to Rule 64.18(1)(b) CPR.

Brief Facts

8. In December 2012 Mr. Ishmael, a used car salesman, hired Mr. Samaroo to carry out

extensions on his building located at Bamboo #2 Valsayn in which Mr. Ishmael stored

automotive parts for his foreign owned vehicles and automotive parts business. On 27th

March 2013, while Mr. Samaroo and his workers were executing the works at the storage

depot, a fire broke out and demolished the building and its contents. On the premises were

Mr. Ishmael’s stock and trade, card board boxes in which motor vehicle parts were stored in

the stock room. He alleged that the fire came from sparks which flew from the metal saw

used by Mr. Samaroo’s crew. Mr. Samaroo denied that it did and alleged that the fire broke

out at a different part of the building and possibly from an electrical fault in Mr. Ishmael’s

building.

9. On 24th March 2017, Mr. Ishmael brought a claim in negligence against Mr. Samaroo as a

result of the fire that took place on the said premises claiming the sum of $7,215,516.00

representing the value of the stock destroyed in the fire. The matter was managed to a trial

which was largely a question of fact to determine whose version of the events as to the cause

of the fire was more credible. For the Intended Respondent were two witnesses: Mr. Inshan

Ishmael and Mr. Asim Mohammed and for the Intended Appellant were three witnesses: Mr.

Vijay Samaroo, Mr. Aaron Samuel and Mr. Neal Parasram. There were also agreed

documentation including a fire report6 which confirmed that the fire was accidental and

determined that “the area of origin was within the vehicle parts storage region located at the

eastern end of the building.” The estimated damage to the building according to the fire

6 Fire Report dated 5th November, 2013

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report was approximately $2,000,000.00 and the estimated damage to stock was

approximately $10,500,000.00.

10. On 14th October 2019, Kangaloo J. in an oral decision ruled in Mr. Ishmael’s favour and found

that Mr. Ishmael’s building and the contents in the building were destroyed by Mr. Samaroo’s

negligence. The learned Judge ordered that Mr. Samaroo pay Mr. Ishmael the sum of

$4,810,373.00 with interest at the rate of 2% per annum from 27th March 2013 to the date of

judgment and prescribed costs in the sum of $229,259.33. Mr. Samaroo pursuant to Rule

64.5(b) CPR had 42 days within which he could file an appeal that is up to 25th November

2019.

11. Mr. Samaroo contends that after the delivery of the judgment, his father died. Because of his

grief he was unable to deal with his matter until he passed his file to his current attorney on

25th November 2019. Unfortunately, his sister in law who had been sick passed away on 26th

November 2019. He met with his attorney on 28th November 2019. By that time the appeal

was already out of time.

12. On 29th November 2019, his attorneys prepared two applications for an extension of time to

file the appeal and a stay of execution of the trial judge’s order which Mr. Samaroo himself

attended on the High Court Civil Registry to file. There is no explanation from the attorneys

why they did not carry out the task of filing and serving the documents on Mr. Samaroo’s

behalf. The two applications were not filed in the Court of Appeal’s Registry but filed in the

High Court Civil Registry. The Notice of Appeal was, however, filed in the Court of Appeal’s

Registry. This administrative bungling is unusual to say the least for two reasons: First the

Notice of Appeal bears the intitulement of “The High Court of Justice” but someone has

corrected it by writing in manuscript changing it to read “Court of Appeal”. The other

documents were filed in the High Court as they appear to be intituled “In The High Court Of

Justice”. There is no explanation as to who made the manuscript changes and why similar

changes were not made to the other documents so that they could be filed in the Court of

Appeal. It therefore gives rise to the reasonable inference that while the Notice of Appeal

was filed in the Court of Appeal Registry, the other documents were, as Counsel for the

Respondent submitted, intended for the High Court. Although it would of course have been

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irregular for the High Court to grant an extension of time or stay (after the appeal was filed)

that would have been a matter for the trial judge to put right when it came to the judge’s

attention.7

13. Second, there is absolutely no mention by Mr. Samaroo of these documents being returned

to the filing attorney at law who is on record for the client who upon inspection would have

noticed the error immediately that the applications were not filed in the correct Registry.

Alternatively, they would have had to follow up on the applications to obtain the date of

hearing almost immediately upon their applications being filed.

14. Inexplicably, after some two months of delay, on 17th February 2020, Mr. Samaroo was

eventually informed by his attorneys at law that the Notice of Applications for extension of

time and stay of execution were incorrectly filed in the High Court Civil Registry. However,

this would have been painfully obvious to any diligent attorney after receiving the filed copies

on 29th November 2019. The applications were eventually only re-filed in the Court of

Appeal’s Registry on 21st February 2020 which are the applications before this Court. I first

consider Mr. Samaroo’s application for an extension of time.

EXTENSION OF TIME TO FILE AN APPEAL

15. Interestingly Counsel for Mr. Samaroo submitted that the failure to meet the deadline to file

the Notice of Appeal meant that an “implied sanction” was imposed and therefore the criteria

set out in the relief from sanctions provisions of Rule 26.7 are relevant to the exercise of the

discretion. It is trite that the “implied sanction doctrine” is no longer good law. However,

there is some benefit in reviewing the development of the discretion to extend time to

understand the manner in which the discretion is now to be exercised, its purpose and the

place for considering the merits of the appeal when exercising this discretion.

16. The jurisdiction to extend time to file an appeal in the Court of Appeal under the CPR was first

comprehensively explored in 2009 by Soo Hon JA sitting in Chamber and later Jamadar JA (as

7 A check on the GEMS system however revealed that these applications were withdrawn by the attorneys by notice filed on 12th March 2020.

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he then was) in the Full Court8 in Trincan Oil Limited v Keith Schnake C.A.CIV.179/2008. Two

important footnotes are worthy of mention in understanding the development in this

jurisdiction of the discretion to extend time to file an appeal over the last 11 years.

17. First, that while the pre-CPR case law on extensions of time are no longer of relevance9 a

fundamental concern is shared both in the pre-CPR case law and the modern authorities: That

applications for extensions of time in the appellate court are to be considered against the

backdrop of litigants already having a trial on the merits and the expectation of litigants to a

finite end to their litigation. To this end, an extension of time is the exception and not the

rule and the discretion is not easily exercised in favour of the non-compliant party.

18. Jamadar JA (as he then was) noted in National Lotteries Control Board v Michael Deosaran

Civil Appeal No. 132 of 2007:

“19. In Alloy Wong I also noted that requests for an extension of time under Order 3, rule

5 were to be treated differently in applications such as this one for two principal reasons:

(i) generally because an appellant has already had the benefit of a trial and lost.

(ii) specifically because the current Order 59, rule 12 (1) was introduced to place the

responsibility upon appellants to ensure that their appeals are prosecuted diligently.”

19. Applications for an extension of time to file an appeal are to be scrupulously interrogated.

There is no unfettered discretion to grant extensions of time and no unqualified right to an

extension of time. The time-table for the conduct of litigation must be respected. See Martin

v Chow [1985] 34 WIR 379 and Ratnam v Cumarasamy [1964] 3 All ER 933 (JCPC). In Ratnam,

the Court of Appeal dismissed the Appellant’s application to appeal the decision of the lower

court. By the rules of the Supreme Court of the Federation of Malaya, Ord 58, r 22(6), the

record of appeal was required to be filed within six weeks after the entry of the appeal “or

within such further time as the Court of Appeal may allow”. Under Ord 64, r 7, the Court of

Appeal had jurisdiction to extend the time even though the application was made after the

expiry of the time allowed. The Appellant’s attorneys applied to the Court of Appeal for an

8 P. Jamadar JA sitting with W.Kangaloo JA and N. Bereaux JA 9 Barrow JA Dominica Agricultural and Industrial Development Bank v Mavis Williams Civil Appeal No. 20 of 2005

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extension of time for filing the record of appeal after the expiration of the six weeks. The

Appellant stated that he had hoped to compromise the claim which was why he had not

instructed his attorneys to file the record of appeal earlier. The Respondent disputed this and

stated the Appellant never indicated his intention to compromise the claim. The Court of

Appeal dismissed the application without giving any reasons. On appeal to the Privy Council

dismissed the appeal. Lord Guest stated at 935:

“The rules of court must, prima facie, be obeyed, and, in order to justify a court in

extending the time during which some step in procedure requires to be taken, there must

be some material on which the court can exercise its discretion. If the law were otherwise,

a party in breach would have an unqualified right to an extension of time which would

defeat the purpose of the rules which is to provide a time table for the conduct of

litigation. The only material before the Court of Appeal was the affidavit of the appellant.

The grounds there stated were that he did not instruct his solicitor until a day before the

record of appeal was due to be lodged, and that his reason for this delay was that he

hoped for a compromise. Their lordships are satisfied that the Court of Appeal were

entitled to take the view that this did not constitute material on which they could exercise

their discretion in favour of the appellant. In these circumstances, their lordships find it

impossible to say that the discretion of the Court of Appeal was exercised on any wrong

principle.”

20. The pre-CPR case law, “which saw a relatively lax climate with respect to compliance with

timeliness”10 still expressed concerns with curbing delay and dealing with cases expeditiously.

The ethos of the CPR introduced among other things a discipline of rule compliance, where

the timeliness of parties’ actions in a court managed process became a paramount focal

point.

21. In Deosaran Jamadar JA (as he then was) classically dealt with pre-CPR law in an application

to extend time under Order 3 in the prevailing climate of the new CPR. His analysis of the

considerations to be taken into account to exercise the discretion was made against the

10 J. Jones JA Moonideo Ramkelewan v Rena Singh FHP 0026/2016

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backdrop of the new demands of procedural justice ushered by the CPR:

“21. This then is the cultural, legislative and jurisprudential context in which the issue to

be determined in this matter arises. Culturally, the courts have recognized the problem

of a pervasive culture of non-compliance with rules and orders relating to time, all too

often due to the inadvertence or negligence of attorneys; legislatively, the Rules of the

Supreme Court have been amended to place the onus on appellants to prosecute appeals

diligently and to penalize them with dismissal of their appeals if they fail to do so; and

jurisprudentially, the courts have adopted a relatively strict attitude to delay as

demonstrated above.

22. All of these interventions have arisen because of the particular circumstances that

exist in this jurisdiction at this time and the specific intention to effect a change to a more

effective and efficient civil justice system. In this regard attorneys have to take

responsibility for their inadvertence and negligence and litigants have to be vigilant. What

is at stake is not simply justice between parties to a single case, but the entire

administration of the civil justice system.”

22. Jamadar JA (as he then was) developed the following checklist to guide the exercise of the

discretion to extend time to file an appeal. He stated:

“53. I am of the opinion that in Trinidad and Tobago, even though Order 3, rule 5 does

confer a wide discretion in applications for extensions of time which necessitates a

consideration of all the circumstances of a case with the overriding objective that justice

be done, in doing so the following factors must be particularly considered where there

has already been a determination of a trial on the merits and judgment has been

delivered.

(i) The length of the delay and whether it is inordinate. The longer the delay the less likely

a court would find that there is reason to extend time.

(ii) The reasons for the delay and whether there is an acceptable explanation for it. The

cogency of the explanation should be greater the longer the delay.

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(iii) Whether the application for the extension of time was made promptly. This

assessment should at least be made in relation to the default and the reasons for it, but

could also include all other relevant circumstances.

(iv) The degree of prejudice to the respondent caused by the delay and that may result if

an extension is granted. The greater the prejudice the less likely a court would find that

there is reason to extend time.

(v) The merits of the appeal, which are to be evaluated in a comparative way relative to

the length of delay, the reasons for the delay and the degree of prejudice to the

respondent. The stronger the merits of an appeal the more likely a court would find that

there is reason to extend time.

(vi) Special cases or exceptional circumstances.

(vii) The bona fides of the application and whether the party seeking the extension has

generally complied with the rules and any orders and directions. A lack of bona fides is a

matter of serious concern.

(viii) The interests of the administration of justice. Doing justice is not limited to justice

between parties to particular litigation, but includes larger considerations of the

administration of justice. One important aspect of this is the recognition that time

requirements laid down in the rules of procedure or by orders of the court are to be

observed if there is to be meaningful change and sustainability in the efficiency and

effectiveness of the administration of justice and in public trust and confidence in it.

Litigants are entitled to have their matters determined according to the rules and with

reasonable expedition. Attorneys are obliged to know the relevant rules and conduct their

matters in accordance with them. Doing justice includes doing it according to the

established rules, and litigants who are in breach of the rules are not entitled to complain

that justice has not been done.”

23. The second footnote I should mention is that the early development of the discretion to

extend time to file an appeal was born from a view that a failure to meet the deadline in filing

an appeal imposed an “implied sanction” on the defaulting party that no appeal can be filed

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“without permission” See Trincan. However in The Attorney General v Keron Matthews

[2011] UKPC 38, the Privy Council rejected the “implied sanction” doctrine. Lord Dyson noted:

“20. Nevertheless, if the language of the rules admits of only one interpretation, it must

be given effect. For the reasons set out above, the Board cannot accept that, where a

defendant fails to file a defence within the period prescribed by the rule, it is subject to

an implied sanction imposed by the rules. Rule 13.3 sets out the conditions that a

defendant must satisfy if he wishes to have a default judgment set aside. If the Rules

Committee wishes to impose the rule 26.7(3) conditions as additional requirements for

the setting aside of a default judgment, then this should be done expressly by an

appropriate amendment of rule 13.3.”

24. An appeal against a final judgment pursuant to Rule 64.5(b) CPR must be filed within 42 days.

There is no express sanction imposed by the rule for non-compliance. In applications for an

extension of time where no sanction is expressly imposed the Court would exercise a wide

discretion pursuant to Rule 26.1(d) CPR. The strict application of the relief from sanctions

regime, with its threshold test of rule 26.1(a)(b)(c) CPR is no longer applicable. To this extent,

Counsel’s submissions for Mr. Samaroo which was premised on meeting the threshold

requirements in a relief from sanction regime is misconstrued, although I recognise her

attempt to meet the much higher threshold that the law requires.

25. However, the relief from sanctions provisions of Rule 26.7 CPR has served specifically two

main purposes in the context of the revolution in our civil process under the CPR. First, it

introduced a cultural shift in rule compliance in preparing cases for resolution. Second, in

introducing a checklist of factors it provided a degree of clarity, certainty and transparency in

the exercise of the judicial discretion to extend time where the defaulting party was in breach

of an order or rule. The underlying purpose of the checklist in the relief from sanctions rule

made itself attractive to any modern CPR judge exercising a wide discretion in seeking to

enforce rule compliance.

26. Mendonca JA in Roland James v The Attorney General of Trinidad and Tobago Civ App No.

44 of 2014 would eventually fill the gap left by Matthews to explain how the discretion

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pursuant to Rule 26.1 ought to be exercised by reference to the Rule 26.7 checklist:

“22…In my judgment on an application for an extension of time, the factors outlined in

rule 26.7(1), (3) and (4) would generally be of relevance to the application and should be

considered. So that the promptness of the application is to be considered, so too whether

or not the failure to comply was intentional, whether there is a good explanation for the

breach and whether the party in default has generally complied with all other relevant

rules, practice directions, orders and directions. The Court must also have regard to the

factors at rule 26.7(4) in considering whether to grant the application or not.

23. In an application for relief from sanctions there is of course a threshold that an

applicant must satisfy. The applicant must satisfy the criteria set out at rule 26.7(3) before

the Court may grant relief. In an application for an extension of time it will not be

inappropriate to insist that the applicant satisfy that threshold as the treatment of an

application for an extension of time would not be substantially different from an

application for relief from sanction. Therefore on an application for extension of time the

failure to show, for example, a good explanation for the breach does not mean that the

application must fail. The Court must consider all the relevant factors. The weight to be

attached to each factor is a matter for the Court in all the circumstances of the case.

24. Apart from the factors already discussed the Court should take into account the

prejudice to both sides in granting or refusing the application. However, the absence of

prejudice to the claimant is not to be taken as a sufficient reason to grant the application

as it is incumbent to consider all the relevant factors. Inherent in dealing with cases justly

are considerations of prejudice to the parties in the grant or refusal of the application.

The Court must take into account the respective disadvantages to both sides in granting

or refusing their application. I think the focus should be on the prejudice caused by the

failure to serve the defence on time.”11

27. In Dr. Keith Rowley v Anand Ramlogan Civ App No. P215 of 2014, delivered on the same day

11 Roland James v The Attorney General of Trinidad and Tobago Civ App No. 44 of 2014 page 10 paragraphs 22-24

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of Roland James, Rajnauth-Lee J.A (as she then was) noted at paragraph 13:

“13. In the above cases, the Court of Appeal was disposed to the view, and I agree, that

the trial judge's approach in applications to extend time should not be restrictive. In such

applications, there are several factors which the trial judge should take into account, that

is to say, the Rule 26.7 factors (without the mandatory threshold requirements), the

overriding objective and the question of prejudice. These factors, however, are not to be

regarded as "hurdles to be cleared " in the determination of an application to extend time.

They are factors to be borne in mind by the trial judge in determining whether he should

grant or refuse an application for extension of time. The trial judge has to balance the

various factors and will attach such weight to each having regard to the circumstances of

the case. Of course, not all the factors will be relevant to every case and the list of factors

is not exhaustive. All the circumstances must be considered. In addition, I wish to observe

that this approach should not be considered as unnecessarily burdening the trial judge.

In my view, when one examines the principles contained in the overriding objective, it is

not difficult to appreciate the relevance of the rule 26.7 factors.”

28. While naturally in the early authorities heavy emphasis was placed on the threshold (or

mandatory) requirements for relief from sanctions, it must be remembered that in exercising

a general discretion to extend time all the Rule 26.7 factors12 are to be examined within the

context of the overriding objective. In any event, those early authorities poignantly reflect

12 “Rule 26.7 provides:

26.7 (1) An application for relief from any sanction imposed for a failure to comply with any rule, court order or direction must be made promptly. (2) An application for relief must be supported by evidence. (3) The court may grant relief only if it is satisfied that- (a) the failure to comply was not intentional; (b) there is a good explanation for the breach; and (c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions. (4) In considering whether to grant relief, the court must have regard to – (a) the interests of the administration of justice; (b) whether the failure to comply was due to the party or his attorney; (c) whether the failure to comply has been or can be remedied within a reasonable time; and (d) whether the trial date or any likely trial date can still be met if relief is granted.

(5) The court may not order the respondent to pay the applicant’s costs in relation to any application for relief unless exceptional circumstances are shown.”

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principles of litigation discipline in the appellate court which are still salutatory principles of

good practice.

29. To that end Soo Hon JA observed in Trincan:

“The Court is no longer empowered to use only its discretion to determine whether an

application for extension of time should be granted; the considerations set out in the rules

must be strictly followed; the appellant must satisfy the criteria in Rule 26.7”

and

“that parties seeking to challenge a judicial decision must move with great haste;

deliberate non-compliance threatens the very foundation of the 'new ethos' of the CPR

1998 and as a consequence cannot be tolerated.”

30. In the judgment of Jamadar JA (as he then was) in Trincan Oil Limited v Keith Schnake Civil

Appeal No. 91 of 2009 which reversed Soo Han JA’s finding on the approach still maintained

the philosophy of litigation discipline:

“54….It is therefore worth repeating, though it has been already stated by the Court of

Appeal, that at this time in the evolution of the new CPR, 1998 in Trinidad and Tobago

this approach is considered necessary if a meaningful shift is to occur in the way civil

litigation is practised here.

55. The overriding objective may be thought of as describing the purpose and intention

of the CPR, 1998 – which is to facilitate dealing with cases justly. However, this concept

of dealing with cases justly, in a modern civil litigation system which involves a non-

bifurcated docket system and an obligation on individual judicial officers to effectively

manage over one thousand cases in a single docket and to deal with all cases effectively

and efficiently, demands that generally one considers not simply individual cases but also

the integrity and efficiency of the entire civil litigation system. In the court of appeal,

though the circumstances are different, the integrity of the entire civil justice system

remains an important consideration.”

31. It is noted that in both judgments of Jamadar JA (as he then was) in Deosaran and Trincan,

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he noted the role of considering the merits of the appeal in the exercise of the general

discretion to extend time to file an appeal.

32. J. Jones JA in Moonideo Ramkhelewan v Rena Singh FHP 0026/20162018 would later map

the development of the exercise of the discretion of granting an extension of time in the

Court of Appeal and marrying the Deosaran principles with the Trincan pre Matthews

authorities and Roland James to comprehensively explain the discretionary exercise

undertaken by the Court of Appeal in extending time. While that decision dealt with the issue

of delay in making an application for directions under Rule 64.11 CPR, the Court examined

the general principles that should guide the Court of Appeal in extending time to comply with

the rules. The judgment of J. Jones JA deserves repeating:

“14. Even under relatively lax pre-CPR timetables therefore the court was concerned with

treating with delay and ensuring that cases were dealt with expeditiously and considered

that it lay within its power to dismiss a matter for want of prosecution. Even so courts

seemed reluctant to dismiss cases out of hand without a determination on the merits

particularly where the fault lay in someone other than the litigant and from whom the

litigant had no recourse unless there was certain prejudice to the defendant……

19. It is clear therefore that in treating with a failure to prosecute an appeal in accordance

with the time lines provided by the rules the Court of Appeal applied a much stricter

approach than that applied in the High Court……

27…Both James and Deosaran deal with the approach of the Court by considering the

overriding objective of doing justice. In my view therefore in treating with the exercise of

my discretion here the approaches adopted in both cases are relevant and provide

guidelines on how I should exercise my discretion under part 64.13.

28. Although the language used in both cases are slightly different, except for two

material differences, by and large the considerations identified by both cases are the

same. Of course items (g) and (h) of the factors identified in James clearly have no

relevance to appeals since a date for an appeal is only given after the record of appeal

has been filed and it is obvious that, under the CPR, the failure to make an application for

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directions can be remedied by simply making that application.

29. In particular both cases determined that of relevance was the promptness of the

application and/or delay; the explanation for such lack of promptness or delay; prejudice,

general compliance with relevant rules and orders and the interests of the administration

of justice. Insofar as the considerations of bona fides of the application is concerned this

is a consideration that could in the appropriate case be treated with under the

administration of justice, compliance with the rules or in the special circumstances of the

case under a separate head. What was key here is that the parameters for consideration

take all the relevant circumstances into account and include the considerations of length

of delay, reason for delay and prejudice to the other side which the earlier authorities on

want of prosecution determined to be relevant.

30. The only real difference between the approaches adopted by the courts in Deosaran

and in James material to the applications before me is the relevance of the merits of the

case and the weight to be attached to each criteria. In Deosaran the court was of the

opinion that a consideration of the merits was necessary. In James the Court was of the

opinion that under normal circumstances the applicant was not required to establish a

good defence on the merits……………..

33. In the applications before me it seems to me that there is benefit in having recourse

to the merits of the appeal. The parties here have already had the benefit of a trial and a

judgment on the issues between them. In addition, given the particular facts of this case,

the issues between the parties have been finally determined by the judgment given in the

matrimonial proceedings which has not been appealed. It therefore makes sense that in

exercising my discretion I have reference to the merits of the appeal as being another

relevant circumstance. In any event both parties accept that the merits of the appeal are

relevant and have addressed me on them.

34. With respect to the weight to be placed on each factor it seems to me that at this

stage of our jurisprudence, in the absence of any specific requirement in a rule, it is more

appropriate to adopt the position taken in James. Deosaran was decided at a time when

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the courts were engaged in a struggle to change the existing culture in litigation from one

of non- compliance and delay to that of strict time lines and expedition. The stance taken

in Deosaran was necessary to herald this change and appropriate in those circumstances.

It would seem to me that at this stage of our development, some 12 years after the

institution of the CPR, it is more appropriate that where the rules are silent the weight to

be attached to each factor be left to the judge to determine bearing in mind the

circumstances of the particular case.

35. At the end of the day however I must exercise my discretion having regard to all the

relevant circumstances and the justice of the case. In having regard to the justice of the

case I am required to bear in mind that this includes, where relevant, the factors identified

at part 1.1 (2) of the CPR. In the instant case a consideration of all the circumstances of

the case includes a consideration of the appellant’s duty under the CPR to make the

application for directions and the circumstances under which this was done.

36. Generally therefore the factors for my consideration here are those factors common

to both Deosaran and James, relevant to the facts of the case, with the additional

consideration of the merits of the appeal. Without attempting to provide an exhaustive

list, in the context of this case, the relevant circumstances include: the promptness in

bringing the application for directions or, as stated in the Jamaat case, the failure of the

appellant to conduct the appeal with proper dispatch, the explanation for the lack of

promptness - this latter factor may involve considerations of who was responsible for the

lack of promptness; the merits of the appeal- this may include considerations on the bona

fides of the application for directions; the prejudice to either party that may arise from

the delay and the exercise of the discretion and the interests of the administration of

justice. I must then examine these circumstances in the light of the requirements of the

overriding objective.”

33. This analysis by J. Jones JA usefully addresses the philosophy underlying the exercise of the

discretion to extend time in proceedings before the Court of Appeal as well as to rationalise

the template for the discretion to be exercised by the Court of Appeal:

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a) The question of delay and expedition are still important considerations.

b) The factors in Rule 26.7(4) (c) and (d) CPR may not be strictly relevant in the Court of

Appeal context.

c) As the parties’ dispute has already been determined, the merits of the appeal assume

more importance. This distinguishes the exercise of the discretion in the Court of

Appeal from that in the High Court.

d) The main factors that predominate the exercise of the discretion are delay, a good

explanation for the delay, prejudice, the impact on the administration of justice and

the merits of the appeal.

e) The overriding objective requires the judge to appropriately weigh these factors in

exercising its discretion.

34. A short excursion in the Commonwealth examining the approach of different appellate

jurisdictions reveal a common pattern in the approach to applications for an extension of

time to appeal. The exercise of the discretion to extend time is rules based and care must be

exercised before any reliance can be placed on authorities form other jurisdiction. However,

in the United Kingdom, Canadian and Australian jurisdictions, the discretion to extend time

to file an appeal is generally open-ended.13 However, much like our seminal judgment of

Roland James, those jurisdictions developed a checklist as an important guide for the Court

of Appeal in its exercise of a wide discretion essentially to do justice between the parties in

determining whether an extension is to be granted. Those authorities also demonstrate that

it is common ground that extensions are the exception and not the rule and the Court will

insist on compliance and not a breach of the appellate rules. However, trifling or minimal

delay ought not to pre-occupy the time of the Court. Indeed parties are encouraged where

there is minimal delay to arrive at a consensus and get the appeal on foot unless there is an

13 By way of example, Rule 13.5(2) of the Alberta Court Rules provides: “13.5(2) The Court may, unless a rule otherwise provides ... extend ... a time period that is

(a) specified in these rules ... .”

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exceptional reason not to do so. It also demonstrates the importance of the merits of the

appeal. Certainly the parties having already had their contest determined and having regard

to the finality of litigation, the successful party must expect when the time for appealing has

expired to rely on his judgment as one to be enforced. To allow the window to appeal to be

re-opened depends not only on a consideration of the main factors of compliance, good

reason and prejudice but also whether the appeal is meritorious to deserve this relief.

35. In the United Kingdom Sayers v Clarke Walker [2002] EWCA Civ 645 had first established in

that jurisdiction the use of the checklist of factors in their Rule 3.9 CPR to guide the exercise

of the discretion to extend time to appeal. In Australia, it was noted in Somers v Ettridge

[2019] FamCAFC 234 BC201950814:

“The grant of an extension of time under this rule is not automatic. The object of the rule

is to ensure that those Rules which fix times for doing acts do not become instruments of

injustice. The discretion to extend time is given for the sole purpose of enabling the court

or justice to do justice between the parties: see Hughes v National Trustees Executors &

Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can

only be exercised in favour of an applicant upon proof that strict compliance with the

rules will work an injustice upon the applicant. In order to determine whether the rules

will work an injustice, it is necessary to have regard to the history of the proceedings, the

conduct of the parties, the nature of the litigation, and the consequences for the parties

of the grant or refusal of the application for extension of time: see Avery v No 2 Public

Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott [1986] 12 FCR 187; 194–5; 70

ALR 185. When the application is for an extension of time in which to file an appeal, it is

always necessary to consider the prospects of the applicant succeeding in the appeal: see

Burns v Grigg [1967] VR 871 at 872; Hughes, at 263–4; Mitchelson v Mitchelson (1979)

24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon

the expiry of the time for appealing, the respondent has “a vested right to retain the

judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at

201. It follows that, before the applicant can succeed in this application, there must be

material upon which I can be satisfied that to refuse the application would constitute an

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injustice…”

36. In SZREW v Minister for Immigration and Citizenship [2013] FCA 289, the Federal Court of

Australia endorsed the following principles of general application:

whether the applicant has provided an acceptable explanation for the delay in

lodging the application;

whether the respondent would suffer prejudice in light of the delay should an

extension of time to lodge the application be granted; and

the merits of the substantial application.

37. Notably in CUF15 v Minister For Immigration & Border Protection [2017] FCA 1613

BC201711210, the Court noted that similar to Mendonca JA in Roland James that:

“[10] The mere absence of prejudice to the respondent is not enough to justify the grant

of an extension of time: Hunter Valley Developments at 349.”

38. These Australian cases establish the overall principle of an extension of time being the

exception to the rule, that the absence of prejudice is not a factor to be held against the

respondent and the importance of the merits of the appeal.

39. In Ontario Canada, in Travis v. D & J Overhead Door Ltd. [2016] A.J. No. 1080 it that even

exceptional circumstances over which they have no control and make it impossible for them

to protect the applicant's interests “does not eliminate the fundamental importance of the

principle of finality and the need to validate the unimpeachable character of a decision not

appealed within the prescribed appeal window or a relatively short time after it closes. There

comes a point when the second appeal window must close.”14

40. It is also noted in Travis the presumption is in favour of the litigant who has secured judgment

after the window for appealing is closed15.

14 Travis v. D & J Overhead Door Ltd. [2016] A.J. No. 1080, paragraph 21 15 See Travis v. D & J Overhead Door Ltd. [2016] A.J. No. 1080:

“50 Justice McGillivray wrote for a five-member panel. His judgment stands for four propositions. 51 First, a judgment that has not been appealed within the stipulated time frame is a valuable asset to the victorious party. "When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a

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41. R v Roberge [2005] 2 R.C.S. emphasises that applications such as these must be given urgent

priority:

“The affidavit filed in this case demonstrates, in our view, that much of the delay can be

ascribed to a failure to accord necessary priority to this application for leave to appeal.

Ultimately, an application for leave to appeal to this Court must be viewed as a matter of

priority that cannot be put off indefinitely until it can be accommodated within counsel’s

schedule.”

42. What these Courts have been consistently trying to achieve is to ascribe the right weight to

be attributed to a variety of factors in the exercise of a case management discretion in the

context of the overriding objective. Obviously matters with more merit deserved a better

chance. Fundamental issues have been shared in all these jurisdictions as to whether

'vested right to retain the judgment'." 52 Second, an unappealed decision is a final decision. Finality is so important that it ought to be disturbed only in extraordinary circumstances. Justice McGillivray held that "the holder of a judgment after the time for giving notice of appeal has expired, has a special right or interest which will not be set aside by the Courts, unless weighty reasons be given for asking the Court to interfere with that right". 53 Lord Justice James, in International Financial Society (Ltd.) v. City of Moscow Gas Co., an 1878 judgment that Justice McGillivray cited, made it very clear that an extension would seldom be granted:

The limitation of the time to appeal is a right given to the person in whose favour a Judge has decided. I think we ought not to enlarge that time, unless under some very special circumstances indeed ... . One case was where there was anything like misleading on the part of the other side or some mistake in the office itself, where a man was misled by our own officer, or possibly some sudden accident which nothing could have foreseen - some sudden death, or something of that kind, which accounted for the delay, or cases like that.

54 That is still the law in England 138 years later: "the law exceptionally allows appeals out of time". 55 It is also the current law in Alberta. 56 Third, Justice McGillivray favoured the view that misapprehension of the applicable rules by the applicant or counsel was not a valid ground - "a very special circumstance" - for an extension order. 57 Fourth, implementing the objective to secure the integrity of an order or judgment not appealed in time, Justice McGillivray held that it was "incumbent upon an applicant” to establish the six distinct conditions set out below:

(1) "to show a bona fide intention to appeal held while the right to appeal existed"; (2) "to account for the delay"; (3) "the failure to appeal was by reason of some very special circumstance which serves to excuse or

justify such a failure"; (4) "to show that the other side was not so seriously prejudiced thereby as to make it unjust having

regard to the position of both parties to disturb the judgment"; (5) "to show that he had not taken the benefits of the judgment from which he is seeking to

appeal"; (6) "to show that he had a reasonable chance of success if allowed to commence and prosecute the

appeal".

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extensions of time are necessary for the Court to do justice between the parties, adequate

reasons which explain the failure by the applicant to comply with the timeframe, prejudice

to the parties and the prospects of success of any of the proposed appeals.

43. Looking to the Caribbean apex Court, the Caribbean Court of Justice (CCJ), it warned that the

overriding objective is not to be invoked to assist a litigant that intentionally flouts the rules.

44. In The Attorney General of Guyana v Dipcon Engineering [2017] CCJ 17 (AJ) it was noted:

“[7] In Blackman v Gittens-Blackman the application for special leave to appeal was made

more than a year late when it should have been made within 42 days. There was no

application for an extension of time to seek special leave. The CCJ held that absent such

an application the Court had no jurisdiction to entertain the special leave application; see

[5].

[8] The Court stated at [6] “While this Court may in a proper case grant an extension of

time for compliance with the Rules or excuse delay, it does so in order to avert a clear

miscarriage of justice. Litigants are not free to ignore time limits and then seek refuge

behind the ‘overriding objective.’”

45. The CCJ adopted a merit based approach in extending the time for appealing in cases raising

important matters of law in Chandra Ramotar Singh v Bhagwantlall Mossai [2019] CCJ 1 (AJ)

and Arnold Sankar v Guyana Rice Development Board [2019] CCJ 11 (AJ). It reflects a similar

criteria of Jamadar JA (as he then was) in Deosaran of “special cases or exceptional

circumstances”.

46. Finally, it must be borne in mind that exercising a discretion to extend time for compliance

with the rules in the Court of Appeal is also to exercise an important discretion in case

management. This notion of effective case management is equally applicable in the Court of

Appeal. To discharge the duty of effective case management the Court must be mindful of

procedural justice.16

16The nine elements of procedural fairness: Voice, Respectful Treatment, Neutrality, Trustworthy Authorities, Accountability, Understanding, Access to Information, Availability of Amenities, Inclusivity. (See Exploring the Role of the CPR Judge, pages 46-47). See also pages 62-64:

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47. In Exploring the Roles of the CPR Judge it was noted:

“As stated in Her Worship Magistrate Marcia Ayers-Caesar and The Attorney General of

Trinidad and Tobago v BS Civ App No 252 of 2015:

“30.While it is accepted that in adversarial litigation judges must be cautious to always

preserve the core judicial values of independence and impartiality, it is equally clear that

the role of the judge under the Civil Proceedings Rules, 1998 is significantly different from

what previously obtained. This is apparent from the overriding objective and the

provisions of the CPR itself...

32.The CPR, 1998 have brought about a seismic shift in the roles, responsibilities and

powers of the court to manage and shape litigation, and to control its unfolding in terms

of issues and timing.”

This means that CPR Judges have more power over the control and shape of litigation and

greater consequential freedom to exercise their discretionary powers and functions.67

As a result of this increased freedom, and to ensure that the value of impartiality is

maintained, CPR Judges need to be ever more mindful of the principles of judicial conduct

discussed in this exploration of the role of the CPR Judge…..

The Judge as manager is ultimately responsible for the due administration of the CPR, and

for making sure that what needs to be done is done. The CPR Judge has to ensure that at

“Judicial Mindfulness is the ability to be fully present to what is happening at every moment in relation to all relevant considerations in the context of the civil court process (and not caught up in the past or future or with irrelevant or only some relevant considerations), with an attitude of openness and receptivity (non-judgmentally), and with the intention to deal with each case justly, fairly, effectively and according to the evidence, the law and the Constitution (purposively). Judicial Mindfulness requires the CPR Judge to have moment to moment awareness simultaneously in four quadrants: the individual interior and exterior, as well as the collective interior and exterior. …………. Judicial Humility is premised on the insight that, whereas we often assume that we see things as they are, we actually ‘see’ things as they appear to us. This insight, about the inherent subjective element in all perception, is equally true in relation to interpretation. …………. Judicial Compassion is another quality that a good CPR Judge ought to possess. It is the ability to rationally approach their responsibilities with positive care, consideration and due regard for all court users, court staff and attorneys, and as well for colleagues and the general public. Judicial Compassion is a rational, jurisprudential, cultural and societal sensitivity for the well-being of both people and the law as they intersect in the context of the CPR.”

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every stage and in every sphere of activity under the CPR, things are happening as they

should according to the scheme of the CPR and so as to meet qualitative and quantitative

performance standards and to further both the general and specific goals of the CPR.

Essentially, there are two core management goals of the CPR, dealing justly with and

facilitating the just disposition of all matters that come before the civil courts. The CPR

judge is called upon to be a Transformational Servant Leader, focused on both

‘production’ and ‘people’. The CPR must be interpreted and applied effectively, efficiently

and economically, so as to deal with each and every matter justly. In addition, all court

users— litigants, witnesses, attorneys (including court staff), must be treated with

respect, fairness, equality and with due regard for the inherent dignity of all people.

Additionally, inclusivity and meaningful participation must be facilitated for the benefit of

all court users. The CPR Judge must therefore ensure that the institutional goals of the

CPR are met, as well as the legitimate needs of the people who engage the civil courts.”17

48. Therefore to guide the upper Court on extensions of time, the Courts must then draw on a

synergy of Rule 1.1, Rule 26.1, and Rule 64.14. The discretion, as discussed above is not

unfettered and by no means have we encouraged the development of judicial checklists

which would have made the exercise of this discretion unwieldy and difficult to predict. The

fact that there is a final judgment on the merits provides valuable context in which to exercise

this discretion giving priority to the need to observe the appellate time rules. The discretion

is to be exercised therefore by considering all the factors of the Part 26.7 checklist which in

itself highlights the importance of the two broad issues of delay and the administration of

justice. The Court also considers prejudice and the merits of the appeal. The overriding

objective assists the Court to attribute the correct weight to these factors as well as to arrive

at a just result.

49. The onus is therefore on the Appellant to adduce sufficient evidence for the Court to exercise

this discretion to address these matters. With respect to merits it does not suffice to simply

state that there is merit in the appeal. The Appellant must, as it should with all the factors to

17 Exploring the Role of the CPR Judge, pages 20-21 and page 61.

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be considered, condescend to particulars to demonstrate at this stage why this is a deserving

appeal to let in through the compliance window. I now turn to consider these factors in turn.

Promptitude

50. The issue of promptitude is “fact driven and contextual” and is to be determined in the

“circumstances of each case”.18 Mendonca JA in Rawti Roopnarine v. Harripersad Kissoo Civil

Appeal No. 52 of 2012 stated at paragraph 24:

“24. I would not say, as the Judge did, that knowledge of the breach is not relevant to the

question of promptness under rule 26.7 (1). As I have said above, whether an application

is made promptly depends on the facts of each case. The knowledge that there was a

breach and hence the need for an application for relief must be a relevant factor. The

weight to be attributed to it would depend on the explanation as to the time the applicant

became aware of the breach.”

51. In this case the application for an extension of time to file the appeal was filed on 21st

February 2020. The time for filing an appeal expired on 25th November 2019. By no stretch

can a period of 88 days be considered prompt. Of course there was a reason advanced for

the late filing but these reasons fail on my opinion to constitute a sufficient context in which

to consider the application as being filed promptly or either a good reason for the delay,

which I shall now turn to.

Good Explanation for the Breach

52. Is there a good explanation proffered by Mr. Samaroo for the delay or his breach of the rules?

In my view there are two main reasons proffered for this 88 day period of delay: First, grief

over a private loss and second the inadvertence of his attorneys. The second is no longer

regarded as an excuse and even accepting that the grief over a private loss is a sufficient

excuse to miss a Court’s deadline, while not being unsympathetic to the litigant, it still cannot

explain away two months of inactivity of a continued flouting of the Court’s rules requiring a

Notice of Appeal to be filed within 42 days of judgment. While there is no express sanction in

18 Paragraph 13 of The Attorney General of Trinidad and Tobago v Miguel Regis Civil Appeal No 79 of 2011. Rule 26.7(1)

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the rules, a proper construction of our rules simply means that the Notice of Appeal that was

filed out of time can have no effect until the Court’s jurisdiction is invoked by a proper

application to extend the time to appeal.

53. Of course the reasons advanced for delay need not be perfect, the reasons need only be

good and acceptable. In Reed Monza, Kangaloo J.A expressed it as follows at page 13:

“It is always a judgment call as to whether the reason advanced for the delay in an

application seeking relief from sanctions is good enough. In this regard each case must be

considered in its own context. ... I want to make it abundantly clear that I am by no means

lowering the standard set by previous decisions of the Court of Appeal with respect to the

adequacy of the reasons which must be advanced by a person applying for relief from

sanctions. In the context of this case the Appellants have advanced a good reason, albeit

one that is not perfect, which it goes without saying, it need not be.”

54. In Rawti, Mendonca J.A did not accept that a good explanation is simply an explanation of

the delay:

“32. In the AG v Universal Projects Limited [2011] UKPC 37, the Privy Council rejected a

submission that a good explanation is one which properly explained how the breach came

about, but which may involve an element of fault, such as inefficiency or error in good

faith. The Privy Council in its judgment stated (at para. 23):

“The Board cannot accept these submissions. First, if the explanation for the

breach, i.e. the failure to serve a defence by March 13th, connotes real or

substantial fault on the part of the defendant, then it does not have a “good”

explanation for the breach. To describe a good explanation as one which

“properly” explains how the breach came about simply begs the question of what

is a “proper” explanation. Oversight may be excusable in certain circumstances.

But it is difficult to see how inexcusable oversight can ever amount to a good

explanation. Similarly if the explanation for the breach is administrative

inefficiency.”

33. An explanation therefore that connotes real or substantial fault on the part of the

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person seeking relief cannot amount to a good explanation for the breach. On the other

hand a good explanation does not mean the complete absence of fault. It must at least

render the breach excusable. As the Court of Appeal observed in Regis, supra, what is

required is a good explanation not an infallible one. When considering the explanation

for the breach it must not therefore be subjected to such scrutiny so as to require a

standard of perfection.”

55. While accepting that there may be some fault on the defaulting party, obviously as there was

delay, the explanation or a good reason ought not to condone substantial fault of that party

seeking relief. In this case the first period of 42 days expired when Mr. Samaroo was

presumably engulfed in grief. However, there is no evidence of whether he did obtain legal

advice, or whether his attorneys were reminding him of the deadlines. There is no evidence

whatsoever as to when he terminated the services of his previous attorney. It is presumed as

submitted by Counsel for the Respondent, that he was always represented by legal advisors.

While those advisors stood silent for the period of the first 42 days, to make matters worse,

there is a period of simple inertia by the new legal advisors for two months.19

56. This Court is very concerned that Mr. Samaroos’ new attorneys would draft an application for

a stay of execution to be filed before Kangaloo J in the High Court of Justice, then file an

application for an extension of time ambivalent as to whether they are to be filed in the High

Court or Court of Appeal. Then rely solely on the client to navigate the Court’s registries

without legal advice. Then simply sit back and wait for some information from the Registry.

Which Registry? The Court of Appeal Registry where no applications were lodged? What were

the attorneys waiting on? The rules are clear that with respect to applications a date of

appointment must be fixed. Usually the date is issued to the filing party as soon as the

application is filed. Without that date there is no application fixed for hearing and no

notification could be properly given to the Respondent. See Parts 64 and 11 CPR. This Court

rejects any inference made by the Appellant that the fault lay with the Court’s Registry. While

19 In Trincan Oil Limited v Keith Schnake Civil Appeal No.91 of 2009 Jamadar J.A (as he then was) observed:

“44………What is required by the rule is not simply an explanation, but a good explanation. 45. The Court of Appeal has been consistent in stating that, except in exceptional circumstances, default by attorneys will not constitute a good explanation for noncompliance with the rules of court.”

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there are help desks and a Registrar on hand to resolve queries, it should not be construed

that the attempts of the Judiciary to assist the public is meant to absolve litigants who are

legally represented from complying with the rules. If there is any complaint of delay by the

Registry, this should be taken up promptly with the Registrar. What is more egregious is the

attorney’s failure to simply check the document upon its return by the client would have

revealed immediately that an error was effected in the filing. If the client did not return the

document to the attorney it makes the attorney’s conduct worse for not properly maintaining

the Client’s files. The attorney’s failure to diligently seek its client’s interest is not to be

condoned but to be condemned.

Intentionality

57. In Trincan Oil Ltd v Keith Schnake Civil Appeal 91 of 2009 Jamadar JA (as he then was)

explained the issue of intentionality as follows at paragraph 41:

“In my opinion, to establish intentionality for the purposes of Part 26.7(3) (a) what must

be demonstrated is a deliberate positive intention not to comply with a rule. This

intention can be inferred from the circumstances surrounding the compliance. However,

where as in this case, there is an explanation given for the failure to comply with a rule

which, though it may not be a ‘good explanation’, if it is nevertheless as one that is

consistent with an intention to appeal, then the requirements of Part 26.7(3)(a) will more

than likely be satisfied.”

58. Mr. Samaroo indicated he had the intention to appeal. It is, however, noted that he allowed

his appeal window to close without making the simple enquiry as to his next step upon

receiving his judgment.

General Compliance

59. This criteria is not relevant in this instance as the appeal has not yet got off the ground.

However, there is evidence of non-compliance in the failure to file the correct applications in

November 2019.

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The Interest of the Administration of Justice

60. The authorities referred to clearly illustrate the discipline of the civil process that is integral

to the administration of justice. Both Roland James and Rena Singh considered the

administration of justice as requiring the Court to consider the effect on the parties as well

as the court system as a whole. J. Jones JA commented on the effect a party’s delay, such as

Mr. Samaroo’s, can have on the overall system of justice:

“54. Under the CPR, unlike the 1975 rules, courts are mandated to take into consideration

the general body of court users. The overriding objective requires that in dealing with a

case justly the court should ensure that it is dealt with expeditiously and that, while each

case should be allotted an appropriate share of the Court’s resources, I must also take

into consideration the need to allot resources to other cases. To allow the appeal to

continue in the circumstances of the delay in applying for directions and where there is

no obvious merit in the appeal merely serves to clog up the resources of the court,

resources that will be better served being employed in reducing the backlog of appeals,

unnecessarily. It also sends the wrong message to the users of the court by perpetuating

the casual approach in litigation that the CPR seeks to eradicate. Giving directions for the

continuation of this appeal will not further any of these requirements nor will it save

expense. In these circumstances allowing this appeal to continue will not be in the

interests of the administration of justice nor will it facilitate the operation of the

overriding objective.”20

61. The Court must always be mindful that a fundamental principle of common law is that the

outcome of litigation should be final, the law exceptionally allow appeals out of time. The

facts justifying the extension must be strictly proven. See Smith v Brough [2005] EWCA Civ

261. Indeed attorneys acting for appellants are expected to set standards of good practice

and not win prizes for incompetence. See Secretary of State for Work and Pensions v

Pridding [2002] EWCA Civ 30.

62. In the High Court a litigant ought to expect his determination of this claim within 18 months.

20 Moonideo Ramkhelewan v Rena Singh FHP 0026/20162018, paragraph 54

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In the Court of Appeal the expectation of the litigation is that this time period should be

shorter. Indeed the only steps in this chain required to have an appeal come on for hearing is

the compiling of the record of appeal, the filing of the record of appeal and written

submissions. Extensions of time unfortunately add to the system’s backlog and the Court

must be mindful of the impact this will have on its burdened docket as well on the expense

for the parties.

Whether the failure to comply was due to the party or his attorney.

63. In this case the failure was shared equally by both the party and his attorneys.

Whether the failure to comply has been or can be remedied within a reasonable time and

whether the trial date or any likely trial date can still be met if relief is granted.

64. J. Jones JA correctly observed that generally these two factors may not be relevant in the

Court of Appeal.21 However, the trial was completed in 14th October 2019 and we are now in

May 2020. If the appellate process begins now, this means that the appeal hearing window

would have been delayed by 6 months. There is no date of appeal but the likely target date

of 2020 is completely off the cards.

Prejudice

65. There is the relative prejudice to be weighed between Mr. Ishmael’s significant monetary loss

and Mr. Samaroo’s complaint that the trial judge made wrong findings of fact. It is Mr. Ishmael

in his affidavit who will continue to be prejudiced after securing his judgment, by the resulting

delay on an appeal which is not demonstrated to hold any high degree of success. The

question of the merits of the appeal would certainly carry some weight in determining where

the greater prejudice would lie.

Merits

66. As discussed above the merits of the appeal should be considered when exercising the

discretion to extend time to appeal. However, Mr. Samaroo has failed to convince this Court

that there is sufficient merit in this appeal which lie essentially on reversing the trial judge’s

21 See Moonideo Ramkhelewan v Rena Singh FHP 0026/20162018

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findings on fact. There is no material in the application itself to raise any significant errors on

the part of the trial judge. Mr. Samaroo simply points to his Notice of Appeal which states:

The trial judge erred in her finding by:

i. Finding fault where the burden of proof was not crossed by the Claimant.

There was no actual direct evidence of negligence on the part of the Defendant

or his employees- The Claimant attested to not seeing any fire starting.

ii. Ruling that the Claimant provided independent or sufficient proof of the value

of actual losses when there was no documents available to the Court to make

such a deduction.

iii. Failing to have an sufficient regard to the admission of the Claimant that he

doctored the video evidence to suit his case to prove liability.

iv. Failing to have regard that the Claimant did not take steps to mitigate any

potential fires after having admitted to having a fire prior to the date of the

incident complained off.

v. Wrongly utilizing a hearsay document, not advanced by the Claimant as proof

of loss, as the only basis upon which she quantified damages.

67. While the judgment delivered was an oral one, it is clear that the trial judge chose one party’s

version of the facts over the other. The determination of liability was open to the trial judge

to be made on the assessment of the evidence of the Intended Respondent. It is trite law that

the reversal of a trial judge’s findings of fact is notoriously difficult.

68. In Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014] UKPC 21, Lord

Hodge usefully explained that it is only in the rare case would the appeal court reverse a trial

judge’s findings of fact. The appellate court must be convinced by the plainest of

considerations, that it would be justified in finding that the trial judge had formed a wrong

opinion.

“Consequently, where a trial judge has reached a conclusion on the primary facts, it is

only in a rare case, such as where that conclusion was one (i) which there was no evidence

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to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no

reasonable judge could have reached, that an appellate tribunal will interfere with it. This

can also be justified on grounds of policy (parties should put forward their best case on

the facts at trial and not regard the potential to appeal as a second chance), cost (appeals

can be expensive), delay (appeals on fact often take a long time to get on), and practicality

(in many cases, it is very hard to ascertain the facts with confidence, so a second,

different, opinion is no more likely to be right than the first).”22

69. It also cautioned that the insight gained by the trial judge who has “lived with the case for

several days, weeks or even months may be far deeper than that of the Court of Appeal whose

view of the case is much more limited and narrow, often being shaped and distorted by the

various orders and rulings being challenged.”23

70. I also note the Caribbean Court of Justice’s observation of in Rodrigues Architects Limited v

New Building Society Limited [2018] CCJ 09 (AJ) which is equally apt in this case of the

difficulty appellants will face in convincing a Court of the merits of an appeal where the

decision is made orally:

“23… Judges must also appreciate that making orders, without at the same time delivering

a reasoned judgment, will make it very difficult for defendants to obtain a stay of

execution by showing a good arguable appeal except in rare cases where a court order

may be regarded as self-evidently revealing a reason against which a good arguable case

can be made. This may be the case where comparison of the claimant’s written

submissions with those of the defendant reveals that, for the judge to have made the

particular order, the judge must have rejected – arguably wrongly – certain submissions

of the defendant or must have accepted – arguably wrongly – certain submissions of the

claimant.”

22 Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014] UKPC 21, paragraph 13 citing In re B (A Child)(Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911. 23 23 Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014] UKPC 21, paragraph 15 citing McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477, 2014 SC (UKSC) 12 which adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235, para 14.

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71. I agree with Counsel for the Intended Respondent that nothing advanced by the Intended

Appellant has raised any merit in the appeal sufficient to warrant an exercise of the discretion

to extend time to appeal. The document relied upon by the trial judge of the fire report was

an agreed document. The trial judge made it clear that it had to evaluate the loss sustained

by Ms. Ishmael using the available evidence open to her. It was reasonable for her to assess

and evaluate the effect of the fire report on her decision on damages. There was no evidence

adduced in this application of the doctoring of evidence before the trial judge. The question

of where the fire emanated is entirely a matter of fact on which there was evidence from the

Intended Respondent of sparks emanating from the Intended Appellant’s saw and there is

the evidence of the Intended Appellant using a saw at the time that the fire broke out. There

is nothing exceptional raised by Mr. Samaroo in his application to characterise his appeal as

one of high general and public importance. It is indeed simply a question of having a second

guess of the trial judge’s assessment of the facts. This simply is not good enough on its own

to convince a Court to re-open the window to allow him to appeal that decision.

Overriding Objective

72. In considering the overriding objective the Court must contextualise the discretion and

determine the weight to attribute to the factors considered above in deciding whether parties

are to be kept on equal footing, making a proportionate decision and ensuring parties’

resources have been economised. Returning to the basic question, should the Court exercise

this discretion in favour of an appellant whose application was filed 88 days out of time? The

Court must weigh heavily in this exercise that Mr. Samaroo’s delay was inordinate, that the

delay was due to the inadvertence of his attorneys in the large part and an unacceptable

excuse. That the prejudice to the Intended Respondent is greater having considered that

there is no cogent evidence of the merits of this appeal. The question of the administration

of justice must be answered against the backdrop of the finality of litigation, the expectation

of Mr. Ishmael to his judgment, the length of the proceedings in the Court below, the

considerable expense incurred to arrive at that conclusion and increase in costs in continuing

with an appeal which already is at the disadvantage of being late off the blocks. It is one of

those applications which unfortunately for Mr. Samaroo does not rise to the standards

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expected for the exception to the rule of compliance with the appellate rules.

73. In refusing the extension both parties are kept in the equal footing on their judgment, both

parties are spared the expenses of the appeal and it is proportionate to the nature of the

matter and to the evidence advanced by Mr. Samaroo in his application.

74. For these reasons the application to extend time to file the appeal must fail. Of course not

extending the time for the appeal to be filed, renders the application for the stay of execution

moot. However, for completeness and in deference to the attorney for the Intended

Appellant, I will now consider that application which also requires the Court to weigh the

relative injustice between the parties in granting or refusing the stay.

STAY OF EXECUTION

75. An appeal does not operate as a stay of execution of the orders of the lower Court. A

successful litigant should not generally be deprived of the fruits of his litigation pending

appeal unless there is a good reason for this course. In short the normal rule is that there is

no stay. See Leicester Circuits Ltd. v Coates Brothers Plc [2002] EWCA Civ 47. The onus,

therefore, is firmly put on the applicant to make out its case for a stay. The test as to whether

a stay ought to be granted pending an appeal has been previously considered by the Court of

Appeal in National Stadium (Grenada) Ltd v NH International (Caribbean) Limited And

Others Civ App No 48 of 2011, Andre Baptiste v Investment Managers Ltd Civil Appeal No

181 of 2012 and more recently Robert Gormandy and Shaun Sammy v The Trinidad and

Tobago Housing Development Corporation Civ. Appeal No. S375 of 2018. The principles

expounded in those authorities relate to the exercise of the Court of Appeal’s jurisdiction to

grant a stay of execution pending an appeal to the Court of Appeal pursuant to Rule

64.18(1)(b) of the CPR. Useful guidance is also to be obtained from Hammond Suddard

Solicitors v Agrichem International Holdings Ltd [2001] All ER (D) 258 (Dec) and Rodrigues

Architects Limited v New Building Society Limited [2018] CCJ 09 (AJ).

76. The principles governing a stay of execution recently reviewed in A&A Mechanical

Contractors and Company Limited v Petroleum Company of Trinidad and Tobago Limited

Civil Appeal No. S-168 of 2014 in which the Court set out useful guides for litigant as to the

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evidence required on these types of applications to stay the execution of money judgments.

Those useful guides include the following:

The applicant in demonstrating that the appeal has good prospects of success must

not too baldly state that there are good prospects of success of an appeal. The

applicant must demonstrate its chances of success based upon the material before

the Court. Judges should be alert to applications for a stay being filed to achieve a

tactical delay to avoid paying the judgment debt or simply seeking extra time to

comply with the Court’s order.

There must be cogent, full and frank evidence in support of an application for a stay.

See Hammond. The onus is on the applicant to make its financial position clear and it

should not leave the Court speculating or trying to fill the gaps.

The applicant must condescend to particulars to assist the Court in determining where

the risk of injustice will lie. In particular, matters such as the stifling of an appeal, the

risks of enforcement, the inability to pay, financial ruin are not matters to be merely

listed, but should be supported by cogent and credible evidence.

77. Unfortunately, the evidence adduced by Mr. Samaroo falls woefully short of this gold

standard. First, he fails to elaborate on his bare statement that he stands a real prospect of

success in his appeal. Regrettably, it is only in the submissions made by his attorney can one

glean the basis for his belief. Even so, there is no material before this Court to properly weigh

in the balance the strength and relative prospects of these contentions. At best the grounds

merely articulate findings of fact which as discussed above imposes a high threshold on the

Appellant.

78. Second, Mr. Samaroo alleges that he is indebted to another litigant in High Court proceedings

but fails to exhibit that judgment. Worse there is no explanation why other creditors should

take precedence over this Respondent.

79. Third, he simply exhibits a pre-action letter of the First Citizen’s Bank24 which has foreclosed

24 Pre-action letter dated 21st June 2019

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on his personal mortgage. However, there is no explanation from him that he intends to repay

that debt or is in a position to refinance that mortgage.

80. Finally, at best, he paints a picture of a man with no means or unencumbered assets to pay

the debt. It simply leaves unanswered the question whether he would be in any better

position to pay the debt if the appeal is later dismissed.

81. The application is bereft of the details and particulars required as set out in A&A Mechanical

Contractors for the Court to properly exercise its discretion in favour of Mr. Samaroo.

82. The essential question in determining whether it is just to grant a stay of execution is whether

in all the circumstances there is a risk of injustice to one or the other party if a stay is or is not

imposed. It is ultimately a consideration of all the circumstances and as noted by J. Jones JA

in National Stadium an exercise of the Court’s overriding objective. The Court of Appeal in

A&A Mechanical commended a useful guide established in Rodrigues paragraph 2225. These

“Rodrigues questions” put the balancing exercise in determining whether it is just to grant or

refuse a stay in the correct context and this Court has adopted this approach as a convenient

self-check on the evidence adduced by the applicant:

“Guidelines for a decision on a stay of execution of a money judgment

C has obtained a money judgment against D who appeals and applies for a stay of

execution. C objects. The Court of Appeal Judge in Chambers must ask the following

questions.

Q1 Has D satisfied me that D’s appeal has a good prospect of success?

- If yes, proceed to Q2. - If no, a stay should not be granted.

Q2 Has D satisfied me that D will be ruined, or his appeal otherwise be stifled if forced

to pay C immediately instead of after the (unsuccessful) appeal?

- If yes, a stay can be granted subject to considering the answers to Q4. - If no, a stay

25 In Rodrigues Architects Limited v New Building Society Limited [2018] CCJ 09 (AJ) it is noted at paragraph 22:

“[22] A stay of execution is the exception rather than the rule26 and the onus is firmly on the applicant to make out the case for a stay, which requires the court to answer the essential question whether, in all the circumstances, there is a risk of injustice to one or other of the parties if it grants or refuses a stay.”

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should not be granted unless a positive answer is given to Q3.

Q3 Has D satisfied me that there is no reasonable probability that C will be able to

repay the monies paid to C by D?

- If yes, a stay should be granted, subject to considering the answers to Q4. - If no, a

stay should not be granted.

Q4 What are the risks that C will be unable to enforce the judgment if the stay is

granted and D’s appeal fails? Depending on the extent of that risk and other relevant

circumstances can there be a compromise solution: payment of all or part of the

relevant sum into court to await determination of the appeal; a stay only of part of the

judgment sum; provision of security for part of C’s payment to D? A compromise

solution should be a last resort, the basic rule being that a money judgment must be

complied with, so that a claimant is entitled to recover the money straightaway and

not to suffer further losses or lost opportunities in the period till the appeal is heard.”

I turn to consider these questions.

Good Prospect of Success

83. I have already examined the merits of the appeal above. Worse for Mr. Samaroo is that he is

unable to demonstrate a good prospect of success. There was material before the trial judge

to substantiate both the issues of liability and damages. Unfortunately, without a full written

judgment the Mr. Samaroo is hard pressed to demonstrate where these findings of fact went

wrong. See Rodrigues. There is no good prospect of success advanced by Mr. Samaroo.

Appeal Not Stifled

84. Again the application suffers from proper evidence. In Rodrigues it was noted:

“[24] The second issue is can the defendant establish he would be ruined or his appeal

otherwise be stifled if forced to pay out the judgment sum immediately, instead of after

an unsuccessful appeal? If not, prima facie a stay should not be granted unless an

affirmative answer is given as to the third issue. The onus is on the defendant to provide

full, frank and clear details of his financial position.”

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85. There is no evidence adduced by Mr. Samaroo to suggest that the appeal would not be able

to be prosecuted by his attorneys. Indeed the picture that is painted is that Mr. Samaroo has

no money. Yet he has been able to obtain legal representation. There is nothing to suggest

that these services would evaporate if the stay is not granted.

Respondent’s Inability to Repay the Appellant

86. Mr. Samaroo fails to adduce any evidence to deal with the inability of Mr. Ishmael to repay

the sums. In Rodrigues it was again noted:

“[25] The third issue is can the defendant establish that there is no reasonable probability

that the claimant will be in a position to repay the monies paid to him by the defendant

to satisfy the money judgment if the defendant’s appeal succeeds?29 If the defendant

can affirmatively establish that no such probability exists, prima facie a stay should be

granted. The onus is on the defendant to produce a measure of evidence of the claimant’s

financial weakness sufficient to make it necessary for rebuttal by the claimant who has

easily available personal knowledge of the claimant’s own detailed financial position. If

the claimant’s financial position is sound then no stay should be granted. Moreover, a

stay should not be granted only upon terms whereby the claimant’s assets of

corresponding value are frozen, not to be encumbered or disposed of in any way without

the leave of the court, unless the claimant consents or the claimant’s connection with the

jurisdiction is tenuous or his circumstances particularly precarious. In the case of a

company claimant in a weak financial position, it may be that no stay should be granted

if a director or shareholder is prepared to guarantee any repayment needed to be made

by the company if the defendant’s appeal succeeds, and the defendant cannot show that

there is no reasonable probability that such guarantor will be able to pay the guaranteed

amount. It must, however, be noted that in the present case it is only because the

Company’s director, Mr Albert Rodrigues, keen for the Company to reap the fruits of its

successful claim, offered his personal guarantee and undertaking referred to in [13]

above, that we made the order in [29] below, requiring such guarantee and undertaking

(by consent), rather than simply discharging the stay of execution.”

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87. Without addressing that issue it simply placed no onus on Mr. Ishmael to respond to

demonstrate his own means to pay if the appeal is successful and the stay was not granted.

Injustice to the Respondent

88. From the evidence adduced there is a greater risk that Mr. Ishmael would be deprived of the

fruits of his judgment if a stay is granted and the appeal fails. There is no evidence that that

financial status of Mr. Samaroo would improve over time. Worse there is evidence to suggest

that other creditors may be paid before Mr. Ishmael can receive his judgment sum. In

Rodrigues it was highlighted:

“[26] A fourth issue that may arise is what are the risks that the claimant will be unable

to enforce the judgment if a stay is granted and the defendant’s appeal fails? Here it may

be that the just solution is for the defendant to pay the judgment sum into court to await

the outcome of the defendant’s appeal, assuming that such payment would not stifle the

appeal and that payment to the claimant (rather than into court) might well lead to the

monies being irrecoverable by the defendant from the claimant. This, however, ought to

be a last resort so that the claimant if possible can have the monies available for

entrepreneurial or investment opportunities.”

89. The inescapable conclusion is that Mr. Ishmael would be worse off in his ability to enforce his

judgment at a later date if the stay is granted and the appeal fails.

90. To summarise then, regrettably the Intended Appellant has fallen short of the mark in

responding to “Rodrigues questions” from the analysis above:

Q1 Has the Appellant satisfied this Court that its appeal has a good prospect of success?

- No. That brings an end to the application and a stay should not be granted. The other

questions only arise if there is a positive answer to Q1. In any event, even if the other

questions are to be considered, this Court’s answers are as follows.

Q2 Has the Appellant satisfied this Court that it will be ruined, or its appeal otherwise be

stifled if forced to pay Respondent immediately instead of after the (unsuccessful)

appeal?

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-The answer is no. A stay will not be granted unless there is a positive answer to Q3.

Q3 Has the Appellant satisfied this Court that there is no reasonable probability that the

Respondent will be able to repay the monies paid to it by the Appellant?

-The answer is no. A stay should not be granted. The fourth question only arises if there

is a positive answer to Q3.

Q4 What are the risks that the Respondent will be unable to enforce the judgment if the

stay is granted and its appeal fails?

-There is a high risk that Respondent will not be able to enforce its judgment.

91. For these reasons even if the time was extend for Mr. Samaroo to file his appeal, there would

have been no stay of execution of the judgment of the trial judge.

Conclusion

92. Litigants are reminded that after obtaining judgment, strict compliance of the appellate rules

are necessary and exceptionally will there be an extension of time granted to appeal. The

new ethos of the CPR commends discipline and not causal indifference to the timelines to

prepare a case for trial or appeal. This shift in approach is necessary for the civil process to

remain reliable and trustworthy to yield predictable results for litigants. Having dug their

heels into a litigated outcome, litigants are to expect the trial to be their battle ground to win

the ultimate prize. That prize can only be returned to its cabinet if the losing party acts within

time to file its appeal or properly address the checklist of factors discussed in this judgment

to convince a Court that the time-window once closed can be re-opened.

93. Litigation may be regarded by litigants as brutish and not for the faint hearted. For this reason

the rules themselves promote ADR processes for parties to suitably seek an amicable joint

resolution to their disputes. In doing this parties avoid the risks and anguish of the litigation

process itself, least of which results from the Court’s insistence on rule compliance. For Mr.

Samaroo, in the balance of the emotional “roller coaster of life” with the demands of the

litigation system his time-window to file his appeal will remain closed.

94. The Intended Appellant shall pay to the Intended Respondent the assessed costs of the

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application. I have heard both parties’ in their submission on the question of costs together

with quantum and I have considered one attorney at “Band C” to be a reasonable fee earner.

I have taken into account the materials that had to be perused and prepared by the Intended

Respondent. The issues of law are not novel. I would discount the hourly rate to $2000.00

per hour as a reasonable fee. I have considered four hours as a reasonable time for the

attorney to have prepared for both applications and present the case for the Intended

Respondent. The Intended Appellant shall pay to the Intended Respondent assessed costs in

the sum of $8,000.00.

Vasheist Kokaram

Justice of Appeal

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