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Lessey v Premchand; Motor One Insurance Company Ltd;

Ramsook and Capital Insurance Ltd

Id. vLex Justis VLEX-794053625

Link: https://justis.vlex.com/vid/lessey-v-premchand-motor-794053625

Text

High Court

Rajkumar, J.

CV 188 of 2013

Lessey
and
Premchand; Motor One Insurance Company Limited; Ramsook and Capital Insurance Limited

Appearances

Mr. Asaf Hosein for the claimant

Ms. Aruna Mohan for the Second defendant

Mr. Reshard Khan for the Third and Fourth defendants

Civil practice and procedure - Extension of time to file witness statement — Whether an amended
witness statement should be allowed where no permission was sought and it inserted a
purported policy of insurance which was not agreed to by the parties or whether it was an abuse
of process to allow it — Consent Order — Whether the original draft witness statement could be
accepted — Amended witness statement struck out but the consent order which provided for
original draft applied.

Rajkumar J.

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This matter came on for hearing on the following dates:

i. October 30th 2013

ii. April 9th 2014

iii. June 25th 2014

iv. October 22nd 2014 – no appearance second def

v. October 31st - no appearance second def

vi. November 5th 2014

November 21st 2014

On August 4th 2014 an application was filed seeking an extension of time for the filing of the
witness statement of Shareeza Doolar on behalf of the second named defendant. A draft was
attached. This was consented to by attorneys at law for the claimant and third and fourth
defendants.

On October 22nd 2014 the matter was listed for case management. Attorneys at law for the
claimant indicated that the policy point that had been taken by the second defendant in its
defence was not supported by a policy. Attorney at Law for the second defendant was not
present.

The matter was adjourned to hear from Attorney at Law for the second defendant. On October
31st 2014 again Attorney at Law for the second named defendant was not present. However
Attorney at Law from the same firm of attorneys was present and indicated that she would
communicate to attorney with conduct of the matter and inform her of any adjourned date. In the
circumstances the matter was adjourned to November 5th 2014.

On November 5th 2014 no one appeared from the firm, nor once again, was there any
representative on behalf of the second named defendant. The matter was stood down to enable a
call to be made to the firm on record. At 10.30 a.m. Attorney for the second defendant finally
appeared, but indicated that she had no instructions on the issue of whether the second
defendant was in a position to prove the policy upon the basis of which it claimed its liability was
exempted.

Permission was formally granted for the extension of time that had been sought for the filing of
the draft witness statement of Shareeza Doolar and the matter was adjourned to enable Attorney
at Law for the second defendant to obtain instructions as to whether the witness statement was
sufficient to enable it to sustain its defence.

The clear understanding – (see transcript of hearing of November 5th 2014 attached), was that
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the draft witness statement that had been filed would be re-filed in compliance with the court's
order, consent having already been obtained by the other parties, and that the matter would
proceed on that basis.

It was clear that as at that point in time, that, despite this being the basis of the defence of the
second defendant, that the draft witness statement did not purport to exhibit any such policy of
insurance.

No permission was sought to file a witness statement supplemented by the purported policy of
insurance.

10 No indication was provided to the court, or to the other parties, that such a policy would be
exhibited.

11 On November 21st 2014 the matter once again came on for hearing, again for the second
defendant to indicate its position on the issues which had been repeatedly raised by Attorney at
Law for the claimant. The court was then informed that, once again, the second defendant had
still not obtained instructions, though attorney claimed to have issued a letter requesting such
instructions. Yet again there was no representative of the second defendant present.

12 Attorney at Law for the claimant indicated that he had been served with a witness statement filed
on November 6th 2014, which simply attached a purported policy of insurance to what appeared
to be the draft witness statement in respect of which consent had been provided originally, and
for the filing of which permission had been granted.

13 That draft witness statement does not purport within its body to annex, attach, or exhibit any
policy of insurance. The purported policy of insurance was simply stapled onto the draft witness
statement and filed, in pretended compliance with the court's permission to file a witness
statement in terms of the original draft to which all parties had consented.

14 It was ordered that that purported witness statement be struck out. It was a clear abuse of the
court's process. A filing of the original draft witness statement is unobjectionable. Consent was
obtained to it since August 4th 2014.

15 The parties and the court in the several case management conferences all operated on the basis
that it was in evidence.

16 The unusual multitude of case management conferences were occasioned by the repeated non
attendances of the second defendant, and the failure to obtain instructions to make any
meaningful contributions to management or progression of the case.

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17 It is not for the court to edit the witness statement that was filed. Its filing with the insertion of a
purported policy of insurance, slipped in under the pretence that it was contemplated under the
permission given, though it had never been referenced as being annexed or exhibited to the
original draft witness statement, veered on an abuse of process. It was therefore ordered that that
the purported documemt filed on November 6th 2014 be struck out.

18 The consent which had been provided for the original draft filed under application dated August
4th 2014 still applies. The permission which had been granted for the filing of a draft in those
terms still applies. However the purported witness statement filed on November 6th 2014
constitutes a disregard of court time and resources despite the several indulgences and
concessions afforded to second defendant, and an abuse of process.

Dated this 2nd day of December, 2014

PETER A. RAJKUMAR

JUDGE

TRANSCRIPT OF PROCEEDINGS

/11/p14 POS 19

:54.15 -10:05

I think on the last occasion someone from Devesh Maharaj and Company had turned up who did
not have conduct who promised to communicate to someone (from the firm) who did have
conduct. Has that happened?

A: I am not aware.

Ct: Has that happened?

A: I am not aware

Ct: You haven't heard anything from them?

A: I don't know if the claimant heard anything.

Ct: This is the third I am waiting for somebody from Devesh Maharaj and Company.
Could you call the matter outside please. Could you make sure it is called properly
please.

The reason that it was adjourned each time was to get someone from Devesh
Maharaj and Company to find out if they have considered their position on the
documents that I ordered to be filed and whether or not they could prove the policy
point. It is a question of evidence. The evidence is supposed to be in by now.

A: The witness statement was filed but nothing was attached to the witness statement,
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no hearsay notice.

Ct: So there is no documentary evidence to prove the policy point and that is what the
Case management Conference is about. It doesn't make sense for me to proceed to a
trial if you are taking a policy point that you cannot prove. But I am talking to myself, I
am talking to you and I am not talking to the party who is supposed to be here. How
long are you going to be here for?

A: I do have another matter at 12.00 in Port of Spain so I am here for at least some
time.

Ct: I am ordering that someone from Devesh Maharaj and Company turn up this
morning. This is the third time that the matter has been called and if they don't turn up
whatever orders I have to make I will make. The matter is stood down for 20 minutes.
Court is to call Devesh Maharaj and Company and indicate that it is ordered that
someone turn up for this matter. It is the third time nobody has turned up.

Break taken

Recalled: (Representative of DM Maharaj present)

Ct: This matter came up three times before and we wanted to find out what was Motor
one's position in light of the fact that the witness statement to which there is no
objection, nobody has any objection to the witness statement that has been filed, but
there is no document attached, and the lists of documents was to have been filed,
with copies of all documents on the list, on or before the 23rd of May 2014. Without
the policy, the onus is on the party alleging limitation on the policy to prove that
limitation - and without the policy there is no way apart from the oral evidence- which
is not the best evidence, for Motor One to establish that there was a limitation on the
policy at all. In light of that I want to know what is Motor One's position.

A: I will have to see the instructions from Motor One regarding that but I do not know
what they would be inclined to think, if they would want to settle the matter given all of
these

Ct: This would be the fourth adjournment for exactly the same purpose. We will grant
one last adjournment. This is on condition that somebody turns up and that somebody
from Motor One turns up and that we hear a clear position from Motor One because
that's what Case management is all about and we have all been here on each
occasion. The 21st at 10.00 am Court Room POS 19/Sf06. Most parties are in Port of
Spain ok. 21st November POS 19/SF06 at 10.00 am. I'll probably be in San
Fernando.

Final adjournment of the Case management Conference. By the way there is no

objection to the witness statement really.

A: No.

Ct: So that for the witness statement leave is granted.

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A: I think it was filed a while but that is the position for my part. I don't know about the
claimant.

It was filed with an application by consent.

Ct: It was ordered that time is extended for the filing of the witness statement of the 2
nd named defendant to the 4th August 2014. I will extend the time of the filing of the

witness statement to tomorrow. I was going to say that it stands -but just to complete
the record Time is extended for the filing of that witness statement to – it is extended
to tomorrow 6th November 2014. That is exactly the same as this one, just to
complete the record.

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