Page 1 of 20 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No. P 104 of 2016 Claim No. CV 2012 - 01144 BETWEEN ESTATE MANAGEMENT AND BUSINESS DEVELOPMENT COMPANY LIMITED APPELLANT AND SAISCON LIMITED RESPONDENT PANEL: P. JAMADAR, J.A. N. BEREAUX, J.A. J. JONES, J.A. APPEARANCES: Mr. V. Deonarine instructed by Ms. S. Narine for the Appellant. Mr. A. Sinanan, S.C. instructed by Ms. A. Hasnain for the Respondent. DATE OF DELIVERY: 26 th April, 2017.
Transcript
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civil Appeal No. P 104 of 2016
Claim No. CV 2012 - 01144
BETWEEN
ESTATE MANAGEMENT AND BUSINESS
DEVELOPMENT COMPANY LIMITED
APPELLANT
AND
SAISCON LIMITED
RESPONDENT
PANEL: P. JAMADAR, J.A.
N. BEREAUX, J.A.
J. JONES, J.A.
APPEARANCES:
Mr. V. Deonarine instructed by Ms. S. Narine for the Appellant.
Mr. A. Sinanan, S.C. instructed by Ms. A. Hasnain for the Respondent.
DATE OF DELIVERY: 26th April, 2017.
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JUDGMENT
Introduction
1. This appeal arises out of an application by the respondent, to amend its statement of case
and reply, that was filed on the 9th July, 2014. The action was commenced by claim form and
statement of case filed on the 19th March, 2012. On the 7th April, 2016, the trial judge granted
permission to the respondent to amend its claim form, statement of case and reply. Thus the
judge granted permission just over four years after the commencement of the claim and just
under two years after the filing of the application to amend.
2. The appellant challenges the trial judge’s exercise of his discretion on three main
grounds:
(i) the respondent was estopped from contending that the first case management
conference had not ended, based on representations made by its attorneys to the
court on the 27th February, 2014 that it had come to an end;
(ii) the first case management conference having in fact ended prior to the 9th July,
2014 (the date on which the application to amend was filed), the respondent was
required to satisfy the requirements of Rules 20.1(3) and 20.1(3A) of the Civil
Proceedings Rules, 1998 (CPR, 1998), which it has failed to do; and
(iii) in any event, the amendments sought to introduce in the statement of case new
claims that were statute barred, and to raise matters in a reply that could not have
been raised in a reply.
3. These are the three main issues in this appeal, but the core issue is really: When did the
first case management conference end for the purposes of Part 20, CPR, 1998? It is this issue
that I intend to address in this judgment, the trial judge having held that at the time of the filing
of the application to amend (July, 2014) the first case management conference had not as yet
ended and as a consequence the respondent was not required to satisfy the requirements of Rules
20.1(3) and (3A), CPR, 1998.
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Estoppel/Changes to Statement of Case and Reply
4. I have had the benefit of reading the carefully reasoned judgment of Jones, J.A., and
agree with her outcomes on all three issues in this appeal. Jones, J.A. has explained why ground
(i) in - relation to estoppel, fails and ground (iii) - in relation to the changes to the statement of
case and reply, succeeds1 and I agree with her reasoning and have nothing further to add.
However, in relation to the second ground of appeal, and though I agree with her decision that
this ground succeeds, I would like to articulate my reasons for doing so, as our approaches differ.
Rules 20.1(3) and (3A), CPR, 1998 (as amended)
5. This second issue may be considered the core issue in this appeal. The original Rules
20.1(1), (2) and (3) stated:
(1) A statement of case may be changed at any time prior to a case management
conference without the court’s permission.
(2) The court may give permission to change a statement of case at a case management
conference.
(3) The court may not give permission to change a statement of case after the first case
management conference unless the party wishing to change a statement of case can
satisfy the court that the change is necessary because of some change in
circumstances which became known after that case management conference.
6. In June 2011, Part 20 was amended by deleting Rule 20.1(3) and replacing it with two
new rules: Rules 20.1(3) and (3A), as follows:
(3) The court shall not give permission to change a statement of case after the first case
management conference, unless it is satisfied that -
(a) There is a good explanation for the change not having been made prior to that
case management conference; and
(b) The application to make the change was made promptly.
(3A) In considering whether to give permission, the court shall have regard to –
1 Paragraphs 17 to 18 and 106 – 113/114 – 116 of her judgment. By sub-rule 2.3, a statement of case includes a
reply to a defence. Therefore Part 20 also applies to changes to replies to a defence.
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(a) The interest of the administration of justice;
(b) Whether the change has become necessary because of a failure of a party or his
attorney;
(c) Whether the change is factually inconsistent with what is already certified to be
true;
(d) Whether the change is necessary because of some circumstance which became
known after the date of the first case management conference;
(e) Whether the trial date or any likely trial date can still be met if permission is
given; and
(f) Whether any prejudice may be caused to the parties if permission is given or
refused.
7. It would appear to be obvious and self-evident from a plain and literal contextual reading
of Part 20.1, that Rules 20.1(1), (2), (3) and (3A) create a structural and staggered approach to
when and how changes to a statement of case can be made,2 as follows:
(i) Prior to a case management conference (and therefore logically, prior to the ‘first
case management conference’), a statement of case may be changed (any amount
of times) without the court’s permission.
(ii) At ‘the first case management conference’ a statement of case may be changed,
but only with the court’s permission AND provided the criteria at Rule 20.1(3A)
are satisfied.
(iii) After ‘the first case management conference’ a statement of case may be changed,
but only with the court’s permission AND provided the criteria at Rules 20.1(3)
and (3A) are satisfied.
8. Rules 20.1(3) and (3A) are patterned (in structure and language) after Rule 26.7, CPR,
1998. The two criteria at Rule 20.1(3) are threshold requirements; and a court must therefore be
satisfied that the application to make the changes was made ‘promptly’ and that there is ‘a good
2 See also, Bereaux, JA in Civ. App. No. P 346 of 2016, The Trinidad and Tobago Housing Development
Corporation v Antoinette Alleyne, at paragraphs 10 and 11.
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explanation’ for the change having not been made prior to ‘the first case management
conference’.
9. Therefore by way of analogy, the jurisprudence on ‘promptitude’ and ‘good explanation’
developed by the courts in its interpretation and application of Rule 26.7 is apposite and to be
generally applied in relation to Rule 20.1(3), in so far as the principles have been developed by
the case law.3 Each case must of course be decided on its own circumstances, including the
stage at which the proceedings have reached under the CPR, 1998 regime.
10. It is therefore also apparent, that the CPR, 1998 make it increasingly onerous to change a
statement of case, given the stage of proceedings measured in relation to both time and case
management. Before ‘the first case management conference’ there are no Rule 20.1(3) or Rule
20.1(3A) limitations. At ‘the first case management conference’, the court’s permission is
needed and a court ‘shall have regard to’ at least six prescribed considerations (Rule 20.1(3A)).
After ‘the first case management conference’, the court’s permission is necessary and the court
“shall not give permission … unless it is satisfied that” the criteria of ‘promptitude’ and ‘good
explanation’ are met (Rule 20.1(3)), as well as the six other prescribed criteria (Rule 20.1(3A)).
11. In order to apply Rules 20.1(1), (2), (3) and (3A), parties, attorneys and courts must be
able to determine the following questions:
(i) What is a case management conference?
(ii) When does ‘the first case management conference’ start?
(iii) When does ‘the first case management conference’ end?
12. The CPR 1998 provide for two core case management functions in the context of the
non-bifurcated system that is currently in operation. First, case flow management. Second,
active judicial case management.
3 Civ. App. No. 44 of 2014 Roland James v Attorney General; Civ. App. No. 215 of 2014 Dr. Keith Rowley v.
Anand Ramlogan; Civ. App. No. P 263 of 2014 Crystal Roberts and Anor. v. Dr. Samantha Bhagan and Anor.
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13. The first refers to the general management of all of the cases in a CPR Judge’s docket
through the system, including the movement of individual cases, from filing to disposition. The
second, refers to the specific management of an individual case pursuant to the CPR, 1998 so as
to achieve the overriding objective of dealing with cases justly.4 In particular, active judicial
case management is governed predominantly by Parts 1, 25, 26 and 27 of the CPR, 1998, and has
as its ultimate goal the just disposition of each matter. However, case flow management is
relevant to active judicial case management, because in dealing with each individual case justly,
a court must take into account the need to allot its resources to all other cases.5
What is a Case Management Conference?
14. Part 25 of the CPR, 1998 explains the objectives of active judicial case management, as
follows:
25.1 The court must further the overriding objective by actively managing cases, which
may include -
(a) identifying the issues at an early stage;
(b) deciding promptly which issues need full investigation and trial and
accordingly disposing summarily of the others;
(c) encouraging the parties to use the most appropriate form of dispute
resolution including, in particular, mediation, if the court considers that
appropriate and facilitating their use of such procedures;
(d) encouraging the parties to co-operate with each other in the conduct of
proceedings;
(e) actively encouraging and assisting parties to settle the whole or part of
their case on terms that are fair to each party;
(f) deciding the order in which issues are to be resolved;
(g) fixing timetables or otherwise controlling the progress of the case;
4 Part 1, CPR, 1998. According to Dick Greenslade, Judicial Sector Reform Project, Review of Civil Procedure,
1998, at page 41: “Judicial Case Management proportional to the value and complexity of the case”. 5 Rule 1.1(2)(e), CPR, 1998.
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(h) considering whether the likely benefits of taking a particular step will
justify the cost of taking it;
(i) dealing with as many aspects of the case as is practicable on the same
occasion;
(j) dealing with the case or any aspect of it, where it appears appropriate to do
so, without requiring the parties to attend court;
(k) making appropriate use of technology;
(l) giving directions to ensure that the trial of the case proceeds quickly and
efficiently; and
(m) ensuring that no party gains an unfair advantage by reason of his failure to
give full disclosure of all relevant facts prior to the trial or the hearing of
any application.
15. Part 26 explains the powers of the CPR judge that can be exercised in performing the
duties of active judicial case management. In this regard Rule 26.1(1) states:
(1) The court (including where appropriate the Court of Appeal) may-
(a) transfer the whole or any part of any proceedings from one court office to
another;
(b) transfer proceedings to the family division;
(c) consolidate proceedings;
(d) extend or shorten the time for compliance with any rule, practice direction
or order or direction of the court;
(e) adjourn or bring forward a hearing to a specific date;
(f) stay the whole or part of any proceedings generally or until a specified
date or event;
(g) decide the order in which issues are to be tried;
(h) direct a separate trial of any issue;
(i) try two or more cases on the same occasion;
(j) direct that part of any proceedings (such as a counterclaim or other
ancillary claim) be dealt with as separate proceedings;
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(k) dismiss or give judgment on a claim after a decision on a preliminary
issue;
(l) exclude an issue from determination if it can do substantive justice
between the parties on the other issues and determining it would therefore
serve no worthwhile purpose;
(m) require the maker of an affidavit or witness statement to attend for cross-
examination;
(n) require any party or a party's attorney-at-law to attend the court;
(o) deal with a matter without the attendance of any parties;
(p) hold a hearing by telephone or use any other method of direct oral
communication;
(q) instead of holding an oral hearing deal with a matter on written
representations submitted by the parties;
(r) direct that any evidence be given in written form;
(s) where there is a substantial inequality in the financial position of each
party, order any party having the greater financial resources who applies
for an order, to pay the other party's costs of complying with the order in
any event;
(t) where two or more parties to the proceedings are represented by the same
attorney-
(i) direct that they be separately represented; and
(ii) if necessary, adjourn any hearing to a fixed date to enable separate
representation to be arranged;
(u) give the control of any proceedings to any person it thinks fit and make
any appropriate consequential order about costs;
(v) direct that notice of any proceedings or application be given to any person;
or
(w) take any other step, give any other direction or make any other order for
the purpose of managing the case and furthering the overriding objective.
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16. Part 27 prescribes the procedures that facilitate active judicial case management.
Significantly, for the purposes of this appeal, it prescribes the procedures in relation to the
following:
(i) fixing of a date for case management in relation to fixed date claims – Rule 27.2
(1) and (2);
(ii) fixing of a date for case management in relation to ordinary claims – Rule 27.3;
(iii) dispensing with case management – Rule 27.4;
(iv) varying a date which the court has fixed for a case management conference –
Rule 27.9;
(v) adjournments of case management conferences – Rule 27.8; and
(vi) orders that can be made at a case management conference – Rule 27.6.
17. Of significance are the following. First, case management can be entirely dispensed
with. Second, a case management conference can be adjourned or the date scheduled varied.
Third, the orders prescribed are not exhaustive of all the orders that can be made at a case
management conference – though they are an essential checklist of the general types of orders
that ought to be considered.6
18. Therefore, in answer to the question ‘what is a case management conference?’, the CPR,
1998 responds conceptually by way of Part 25. That is to say, a case management conference is
a court ‘hearing’7 at which a CPR judge actively manages a particular case in furtherance of the
overriding objective, by carrying out any of the thirteen (13) actions listed at Rule 25.1; and/or
any of the twenty two (22) actions listed at Rule 26.1; and makes such orders, and gives such
directions as are necessary, including those set out in Rule 27.6, all of which are not exhaustive
of the actions that can be taken, directions given or orders made in the exercise of active judicial
case management,8 so as to advance the matter towards a just disposition.
6 Rule 26.1(w) provides that a judge may, in addition to the twenty two (22) orders and directions listed in Rule
26.1(1), ‘take any other step, give any other direction or make any other orders …’. 7 There need not be an actual ‘face to face’ hearing; See Rule 25.1(j), CPR, 1998. 8 Rule 26.1(1) (w) states: The court … may - “take any other step, give any other direction or make any other order
for the purpose of managing the case and furthering the overriding objective”; And Rule 26.1(5) states: “The list of
powers in this rule is in addition to any other powers given to the court by any other rule, practice direction or
enactment.” See also Rule 27.6, which sets out some of the general orders that ought to be considered at a case
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19. In my opinion, active judicial case management occurs whenever a CPR judge
deliberately exercises any of the above stated actions (as per Rules 25.1 and/or 26.1 and/or 27.6
or otherwise), in purported management of proceedings properly before him/her and in
furtherance of the goal of a fair and just disposition of a matter.
20. A case management conference is therefore a court hearing specifically scheduled for the
purposes of exercising active judicial case management in relation to particular proceedings.
However, it is possible that at a court hearing of proceedings not specifically scheduled for
active judicial case management, that a CPR judge can actively exercise case management
powers. Such a hearing would, from a common sense point of view, also be, if only in part, a
case management conference. This is because, it is the substance of what in fact occurs that
matters, not the form that it takes. Thus, to determine whether or not there has been active
judicial case management, the question to be asked and answered, is: ‘Whether in fact there has
been active judicial case management of proceedings by a CPR Judge?’.
When Does ‘The First Case Management Conference’ Start?
21. The notion of ‘the first case management conference’ as it is used in Rule 20.1(3) is a
term of art. ‘The first case management conference’, for the purposes of Rule 20.1(3), takes
place on the first occasion that a court hearing has been specifically scheduled for the purposes
of exercising active judicial case management in relation to a particular matter and when there
has in fact been the occurrence (whether by orders, directions or otherwise) of active judicial
case management by a CPR judge (in any of its myriad aspects as provided for by the CPR,
1998).9 This is to be distinguished from an occasion when at a hearing of proceedings not
specifically scheduled for active judicial case management, a CPR judge for the first time
actively exercises any such case management powers.
management conference. And also, Dick Greenslade, Judicial Sector Reform Project, Review of Civil
Procedure, 1998, Chapter 13 – Case Management Conferences, pages 75 – 85. 9 In The Trinidad and Tobago Housing Development Corporation appeal, Bereaux, JA, put it this way (at
paragraph 10 (iii): “The first case management conference means precisely that. That is to say, it is that case
management conference which occurs, immediately upon the close of pleadings (subject to leave being granted
to file a reply per part 10.10) pursuant to the provisions of Part 27.3(1), (2) or (3) of the CPR.”
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22. In my opinion, for the purposes specifically of Rule 20.1 and in relation to changes to
statements of case, and so as to achieve the objectives of the CPR including the overriding
objective to deal with cases justly, ‘the first case management conference’ as a denotative event
marker, refers to the first specifically scheduled court hearing of a particular matter for the
purposes of active judicial case management; provided that at such an event there has in fact
been the occurrence of active judicial case management.
23. Thus, if ‘the first case management conference’ is scheduled for date ‘X’ and is
adjourned without any active judicial case management of the proceedings having occurred, then
that event is not for the purposes of Rule 20.1 ‘the first case management conference’ in those
proceedings. This is because we are concerned with substance, not form; with policy, not
protocol. There must be actual active judicial case management occurring – something(s) done
by a CPR judge with the intent to actively manage the particular proceedings so as to move the
process forward (towards a just disposition) in any of the myriad ways provided for by Rules
25.1 and/or 26.1 and/or 27.6 and/or otherwise.
24. Parts 26 and 27, CPR 1998 and Rules 27.2 and 27.3 offer guidance on when generally
(under the CPR, 1998 regime) such a first case management conference should occur. Part 27
also gives guidance when case management can be dispensed with (Rule 27.4), on the
adjournment of case management conferences (Rule 27.8), and on the variation of dates fixed for
case management conferences (Rule 27.9). However, the occurrence of ‘the first case
management conference’ for the purposes of Rule 20.1(3) is a question of fact, to be objectively
determined based on the actions taken (orders, directions or otherwise) by a CPR Judge in
relation to a particular matter.
When Does ‘The First Case Management Conference’ End?
25. Given the context of Rules 27.2 and 27.3 (and subject to Rules 27.4, 27.8 and 27.9), the
intention of the CPR, 1998 is, and the presumption must be, that the first case management
conference begins on the date and time that it is scheduled for, or alternatively, when in fact
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active judicial case management first occurs subsequent to such a scheduled time or date. Given
this, the logical inference is that ‘the first case management conference’ ends at the close of that
hearing and once there has in fact been the occurrence (whether by order, directions, or
otherwise) of a single act of active judicial case management (in any of its myriad aspects as
provided for by the CPR) by a CPR judge.
26. This is because active judicial case management is a process that can unfold over time
and several case management conferences.10 Indeed, in the scheme of the CPR 1998, case
management as a distinct stage in the process can be said to continue up until the denotative
event marker of the Pre-Trial Review.11 There can therefore be first, second, third etc. case
management conferences. However, the significance of ‘the first case management conference’
in the scheme of the CPR 1998, is, inter alia, in relation to both WHEN and HOW changes to a
statement of case can be made – Part 20, CPR, 1998.12
27. Part 20 incorporates in practical form a procedural policy that is considered critical to the
efficient, effective and economical management of civil litigation – there must be early
disclosure and identification of all issues in dispute, including all relevant and material facts and
documents. And, that the onus is on the parties to ensure that this is achieved.13
28. This policy is intended to take effect prior to the formal commencement of any legal
proceedings. The Practice Direction on Pre-Action Protocols states as follows, in its general
outline of intent:
1.3 Pre-action protocols outline the steps parties should take to seek information from
and to provide information to each other about a prospective legal claim.
1.4 The objectives of pre-action protocols are:
(1) to encourage the exchange of early and full information about the
prospective legal claim. 10 Rule 27.8, CPR, 1998 – a case management conference may be adjourned. 11 See Rules 27.6(3), 39.1 and 39.2, CPR, 1998. However, active judicial case management continues throughout
the process – Rules 26.1(1) and 64.17(1) apply to the Court of Appeal; and Rules 39.3 and 39.6 apply to pre-trial
reviews. 12 It is also relevant in relation to Rules 18.4(1) and 67.8(2). 13 Rule 1.3, CPR, 1998 – parties are required to help the court achieve the overriding objective.
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(2) to enable parties to avoid litigation by agreeing a settlement of the claim
before the commencement of proceedings.
(3) to support the efficient management of proceedings under the CPR where
litigation cannot be avoided.
29. In fact, the ‘early’ articulation of ‘full information’ about prospective legal claims, is
driven by the CPR, 1998 objective ‘that litigation should be a last resort’.14
30. Not surprisingly therefore, Part 25 which outlines the core objectives of case
management, states as the first two objectives (clearly indicating their importance):
(i) 25.1(a) – identifying the issues at an early stage.
(ii) 25.1(b) – deciding promptly which issues need full investigation.
31. The third and fifth objectives stated in Part 25 (also signifying their importance), mandate
active judicial encouragement of and assistance to parties to settle the whole or a part of any
matter.
32. Clearly, none of these prioritized objectives can be optimally achieved until the cases
‘pleaded’ (for the purposes of Part 20 the statement of case includes a claim, defence,
counterclaim, ancillary claim, defence to counterclaim and a reply to a defence)15 are in final
form – and everyone including the court knows what are all of the issues being raised (including
the relevant facts and documents). Indeed, pragmatically, settlement of a case can only be
actively encouraged and/or assisted, or occur, in the context of disclosure and identification of
the issues in dispute and of all relevant information (documentary or otherwise).
33. It is in this broader policy context that the rationality and reasonableness of Rules
20.1(1), (2), (3) and (3A) – indeed, of all of Part 20, become evident; especially given the onus
14 Practice Direction on Pre-Action Protocols – Clause 6. 15 Rule 2.3, CPR, 1998 – definition of ‘statement of case’.
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on all parties to assist the court in achieving the overriding objective of dealing with cases justly
as defined in the CPR, 1998.
34. If a CPR judge is to identify issues at the earliest phase of case management, and so
doing to actively encourage and assist settlement, or failing which decide ‘the order in which
issues are to be resolved’ (Part 25.1(f)), or give ‘directions to ensure that the trial of the case
proceeds quickly and efficiently’ (Rule 25.1(e)), or otherwise take action as mandated by Rule
25.1, then the final form of the ‘pleadings’ of all parties must be settled and determined at the
earliest phases in the process. As already explained, there is an onus on parties to ensure that
this is done. Or, if this is not the case, to seek an adjournment of16 or the variation of17 the date
set for a case management conference.
35. If a claimant and a defendant have complied with the requirements of the pre-action
protocols, then at ‘the first case management conference’ any necessary changes to ‘pleadings’
the need for which may have arisen, should be apparent and ought to be disclosed. The court’s
permission to effect these changes should be immediately sought. Failure to do so leads to the
inefficient, ineffective and uneconomical management of a matter – all anathema under the
CPR.18 At this point only the requirements of Rule 20.1(3A) have to be satisfied. Thereafter, the
requirements of Rule 20.1(3) must additionally be met. In the context of the CPR, 1998, this
staggered approach to how changes to ‘pleadings’ can be made is both reasonable and
proportionate.
36. For all of these reasons, ‘the first case management conference’ is presumed to have
ended at the close of the first hearing specified for that purpose, once there has in fact been the
occurrence of a single act of active judicial case management. The onus is always on the parties
to seek changes to their pleaded cases19 at the appropriate times, given the regime prescribed by
Part 20, CPR, 1998, and to stand the consequences of a failure to do so.
16 Rule 27.8, CPR, 1998. 17 Rule 27.9, CPR, 1998. 18 See Rules 1.1 and 39.6(1), CPR, 1998. 19 Rule 2.3 defines statement of case as including ‘a claim, defence, counterclaim, ancillary claim form, defence to
counterclaim and a reply to a defence’.
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37. This is subject only to one exception. That exception is if it has been specifically stated
and ordered/directed by the CPR Judge that ‘the first case management conference’ is adjourned
and a fixed date, time and place for the adjourned first case management conference are
scheduled.20
38. The reason for this exception, is to recognize that a case management judge is best placed
to determine whether or not the consequences of ending ‘the first case management conference’
are aligned with the overriding objective of dealing with cases justly. However, unless it is
specifically stated and ordered/directed that ‘the first case management conference’ is adjourned,
this is not to be inferred and the presumption of when it shall end, stated above, applies. This is
because, not only will there be too much uncertainty in the process with a more ambiguous
approach – such as in this case, but a less specific approach will also undermine the policy of the
CPR for the early articulation and identification of issues and the disclosure of relevant and
material facts and documents and all of the associated objectives of the CPR, 1998, as explained
above.
Facts
39. In accordance with Rule 27.3(1) ‘the first case management conference’ was duly
scheduled for the 26th July, 2012. At that first case management conference the respondent
sought and got the permission of the court to file and serve a reply (a defence having been filed
on the 31st May, 2012 and served prior to the first case management conference). The only other
endorsement and order of the judge that day, was simply that case management was adjourned to
the 15th November, 2012.
40. Had the first case management conference ended on the 26th July, 2012? Clearly it had.
Why? Because Rule 10.10 requires permission of the court to file a reply21 if it is not done
before a case management conference (when the consent of the defendant is required) – and “the
court may only give permission at a case management conference”.22 Therefore what took place
on the 26th July, 2012, was a case management conference (in fact the first scheduled specifically
for that purpose), and at that case management conference the CPR judge actively managed the
case by granting permission (in the exercise of his judicial discretion) to the respondent to file a
reply. That is to say, the judge completed a single act of active judicial case management. No
doubt this was done in furtherance of the overriding objective to deal with the case justly. The
permission granted was also no doubt in furtherance of the court’s duty to actively manage the
case by, inter alia:
(i) considering the benefits of permitting a reply given the costs of doing so;23
(ii) giving a direction to ensure timeliness and efficiency;24 and
(iii) taking a step for the purpose of managing the case and furthering the overriding
objective.25
41. Thus, once the respondent wanted to make any changes to its statement of case after the
26th July, 2012, it was necessary for it to satisfy the requirements of both Rules 20.1(3) and (3A).
As Jones, J.A. has explained in her judgment, neither of the two requirements for promptitude
and a good explanation have been met on the facts in this appeal. I completely agree with Justice
Jones’ analysis of the facts on this aspect of the appeal. I also agree with Jones, J.A., that the
threshold requirements of Rule 20.1 (3) having not been satisfied, there is no need to go further
in the analysis to consider the requirements of Rule 20.1(3A).
42. This conclusion on this aspect of the core issue is sufficient to dispose of this appeal.
However, it may be worth stating that the facts on this case demonstrate that by the 9th July, 2014
when the application to amend the statement of case and reply was filed – almost two years after
the first case management conference was held, there had been five more case management
conferences.26
23 Rule 25.1(h), CPR, 1998. 24 Rule 25.1(e), CPR, 1998. 25 Rule 26.1(1) (w), CPR, 1998. 26 On the 15th November, 2012; 21st February, 2013; 27th June, 2013; 7th November, 2013; and the 27th February,
2014.
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43. During this two year period the judge was also actively case managing the matter by
actively encouraging and assisting the parties to settle the whole or part of their dispute on terms
that were fair to both parties.27 Each of the directions given were completed acts of active
judicial case management. This role in encouraging and assisting parties to settle their disputes
is not peripheral to the duties and responsibilities of the CPR judge. Indeed, it is quite central,
especially if the objective ‘that litigation should be a last resort’ is to be taken seriously. The
judge was thus actively managing the matter to advance the aim of a just and fair resolution.
44. It is therefore beyond any doubt, that on the 27th February 2014 when an oral request was
made at that case management conference to amend the statement of case, and again on the 9th
July, 2014 when the formal application to do so was filed, ‘the first case management
conference’ for the purposes of Rules 20.1(3) and (3A) had long ended.
Distinguishing the Approaches
45. My approach to determining both when the ‘first case management conference’ begins
and ends, differs from Jones, J.A. as follows. For me, there must be some significance to the
notion of ‘first’28 and as explained above, a single act of active judicial case management is
indicative of both the beginning and the end of ‘the first case management conference’. The
initiation of such an act commences the conference and its completion ends it. If that act is not
completed (and no other act of active judicial case management is completed) and the conference
is adjourned, then (and only then) ‘the first case management conference’ is presumed adjourned
until the act is completed (or another act of active judicial case management is initiated and
completed). For example, if there is an application for permission to file a reply; once an order
or direction is made granting or refusing permission to do so, an act of active judicial case
management has occurred. If however the hearing of the application is adjourned and a decision
is rendered on another occasion (and there are no intervening other acts of active judicial case
27 Rule 25.1(c) and (e), CPR, 1998. The judge on the 15th November, 2012 recommended that an engineering firm
carry out a certification of the completed works; and on the 27th June, 2013 the judge, in the face of a difference of
opinion between the parties, recommended a meeting between the parties’ experts and how the costs of the
settlement discussion should proceed – recommending that they be agreed in advance and met by the appellant. 28 That is, ‘first’ must mean first in time; as that is the plain and ordinary meaning of the word, reinforced by the
context in which it is used in Part 20, CPR, 1998.
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management), then upon the making of the order or direction the act of active judicial case
management has occurred.
46. For Jones, J.A., the focus is on ‘stages’ (as opposed to a single act). She organizes her
framework around three discrete stages – issues, resolving issues, preparation for trial, and
appears to suggest that these, for the purposes of Part 20, must be analyzed sequentially.29 Thus,
since the identification of and dealing with issues is first in time, for her, ‘the first case
management conference’ can only begin when a court addresses its attention to the identification
of issues; and it only ends, when the process of dealing with the issues is completed – the ‘issue
stage’.30
47. At first instance for ordinary claim form matters, there are, broadly speaking, five (5)
main stages of activity: (i) the pre-action pleadings stage; (ii) the active judicial case
management stage; (iii) the pre-trial stage; (iv) the trial/determination stage and (iv) the
enforcement stage. Each builds into the other; and unless there is prior resolution of the matter,
the process culminates in a trial with a reasoned judgment and ends in enforcement. Active
judicial case management is thus the second stage of proceedings in this conceptualization of the
process. To this extent, I agree with a ‘stage’ analysis.
48. I also agree that during the active judicial case management stage, there are several
discrete events that can occur, and that conceptually and generally speaking these can be
categorized as: (i) identification, clarification and articulation of the issues; (ii) exploration of
settlement (of all or some of the issues); and (iii) preparation for trial of the issues, in the event
that there is no or only partial settlement. It must be noted however, that these are not exhaustive
of the events that can occur during active judicial case management – for example, there can be
interlocutory applications, for say injunctive relief, that may not fit neatly into any of these three
spheres of activity. It must also be noted, that there is no prescribed order or hierarchy to these
events. They are rather interrelated and interlocking events, that occur during the active judicial
case management stage of proceedings.
29 See paragraphs 48 – 56; 71 – 72. 30 See paragraphs 48 – 50 and 89.
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49. I thus prefer to conceptualize of the active judicial case management process in terms of
‘spheres’ of activity, as, for me, the idea of ‘stages’ can lead to a sequential rigidity that is not
intended or prescribed by the CPR, 1998,31 and that does not accord with the way in which first
instance courts in fact deal with ordinary claim form matters.
50. For example, at a Rule 27.3(1) court scheduled first case management conference; there
may be no discussion of issues per se, but the parties may nevertheless be actively encouraged to
try and settle the matter (whether on their or the court’s initiative). Or a court may actively
render its assistance to help settle a matter: particulars may be sought and directed to be
supplied; or the disclosure of certain information requested and ordered to be handed over – all
so as to try and justly dispose of the matter without resort to a court hearing. On a strict ‘stage’
approach, as explained by Jones, J.A., since “the identification of the issues therefore marks the
beginning of the case management process” (paragraph 48), in this scenario active judicial case
management would not have even begun and neither would ‘the first case management
conference’ have started.
51. Thus, while I agree that identifying and interrogation the issues is of great importance,
even to be given priority; in my opinion such a strict ‘stage’ approach is inconsistent with the
plain language of Rule 20.1(3). This is because there is nothing that qualifies ‘the first case
management conference’, to suggest that ‘first’ means when the issues in the case are first dealt
with. Further, such an approach can lead to greater uncertainty, rather than certainty; as
attorneys, parties and courts will have to determine when was the ‘issues stage’ in the case
commenced, and, maybe even more challenging, when did it end.
52. Rule 67.8(2) prescribes that “an application for a costs budget must be made at or before
the first case management conference”. What happens if at a Rule 27.3(1) court scheduled first
case management conference, an application is made for a costs budget – and the ‘issues stage’
31 See Rule 25.1: The court must further the overriding objective by actively managing cases, which may include –
(i) “dealing with as many aspects of the case as is practicable on the same occasion.” See also, Dick Greenslade,
Judicial Sector Reform Project, Review of Civil Procedure, 1998, at page 78, “The Content of a Case Management
Conference: There can be no single procedure to be adopted at a case management conference”.
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inquiries and determinations are never engaged? Was that ‘the first case management
conference’ for the purposes of Part 20? On the ‘issues stage’ analysis, it would not have been.
53. Further, what if a judge is actively managing a case in accordance with Rule 25.1(i) –
“dealing with as many aspects of the case as is practicable on the same occasion”; and that
occasion happens to be the first case management conference scheduled by the court office, but
the judge does not complete the ‘issues stage’, though s/he does make several orders relating to
the preparation and/or progression of the case (such as, say, joining parties, fixing a costs budget,
ordering disclosure). Has ‘the first case management conference’ ended? On the ‘issues stage’
analysis, it would not have ended.
54. In my opinion therefore, a strict ‘stage’ approach and analysis as a means to determine,
for the purposes of Part 20, whether or not ‘the first case management’ has begun or ended, will
create more uncertainty and more satellite litigation than the ‘single act’ analytical approach that
I have proposed. An approach which, in my opinion, accords with the language and intention of
the CPR, 1998 and with the lived experiences of first instance judges in Trinidad and Tobago.
Conclusion
55. In these circumstances, this appeal is allowed. The trial judge’s orders granting
permission to the respondent to change its statement of case are set aside. In relation to the
proposed changes to the reply, I also agree with Jones, J.A. on her analysis and conclusion on
this point. The trial judge’s orders on this aspect are therefore also set aside.
