the republic of trinidad and tobago in the...
TRANSCRIPT
Page 1 of 28
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2013-02881
Between
Cecilyn Legall-Busby
(by her Attorney and/or Agent James Legall)
Claimant
AND
Gail Valentine
First Defendant
Telecommunications Services of Trinidad and Tobago
Second Defendant
BEFORE THE HONOURABLE MR. JUSTICE A. DES VIGNES
Appearances:
Mr. Ronald A. Singh for the Claimant
Mr. Keston McQuilkin instructed by Ms. Sharlene Waterman for the Second Defendant
DECISION
INTRODUCTION
1. This action has been brought on behalf of the Claimant, Cecilyn Legall-Busby by James
Legall, her appointed Attorney and/or Agent (by Power of Attorney registered as
DE200902299396), against the First Defendant, Gail Valentine and the Second Defendant,
Telecommunications Services of Trinidad and Tobago for damages, interest and costs for
trespass and/or negligence and consequential loss arising out of acts of bullying and/or
harassment and/or assault on the Claimant by the First Defendant on the 14th
July 2009. The
Page 2 of 28
Claimant has also sought a declaration that the Second Defendant is liable to indemnify the
First Defendant in respect of any damages, interest and costs awarded to the Claimant and an
order that the Second Defendant pay to the Claimant the amount awarded in the action
against the First and Second Defendants together with interest and costs.
THE APPLICATION
2. By Notice of Application filed on 12th
September, 2014, the Second Defendant applied for
orders pursuant to Part 26.2(1)(c), Part 26.1(d) and Part 26.1(f) of the Civil Proceedings
Rules 1998 (CPR):
a. That the Claimant’s Claim Form and Statement of Case be struck out since it
discloses no grounds for initiating a claim against the Second Defendant;
b. That the Claimant pay the Second Defendant’s costs as it relates to the instant
application as well as the substantive matter;
c. That the directions for the Second Defendant to file and serve its Witness Statements
on or before September 12, 2014 be stayed pending the hearing and determination of
the application; and
d. Alternatively, that the Second Defendant be granted an extension of time to file and
serve its Witness Statements to a date to be determined by the Court.
THE ISSUES
3. There are two issues which arise for determination on this application:
a. Should the Claimant's claim against the Second Defendant be struck out on the basis
that it discloses no grounds for initiating a claim against the Second Defendant?
b. If not, should the Second Defendant be granted an extension of time to file and serve
its Witness Statements?
THE PROCEEDINGS
4. By Claim Form and Statement of Case filed on 11th
July, 2013, the Claimant alleges that on
14th
July, 2009, whilst performing her duties as Manager - Operator Services (Ag.), she was
discussing work related issues with the First Defendant when the First Defendant became
irritated and/or annoyed at her. Shortly thereafter, the First Defendant advanced and/or
lunged toward the Claimant in a threatening manner whilst using heated and offensive
Page 3 of 28
language but the First Defendant was restrained by a co-worker. The Claimant further
alleges that as a result she apprehended that the First Defendant was going to physically harm
her and she became extremely scared and/or afraid for her life and she suffered severe
mental and/or psychological injuries, losses and damages.
5. The Claimant also alleges that the First Defendant, whilst in the course of employment,
assaulted and/or harassed and/or bullied the Claimant on the premises owned and/or
occupied by the Second Defendant. The Claimant further alleges that the Second Defendant:
a. Failed to provide safe work environment and/or conditions;
b. Failed to provide adequate supervision;
c. Failed to take steps to prevent bullying, harassment and/or assault of workers
including the Claimant when aware of previous complaints;
d. Failed to remove and/or relocate the First Defendant who on previous occasions had
bullied and/or harassed the Claimant;
e. Failed to provide a safe system of work, to wit, the Second Defendant did not protect
the Claimant who it was foreseeable may suffer stress related and/or psychiatric
illness as a result of bullying and/or harassment at work.
6. Further, the Claimant alleges that on or about a week before 14th
July 2009, she indicated to
the Second Defendant, its employees and/or agents her concerns about supervising and/or
giving instructions to the First Defendant. Additionally, the Second Defendant, prior to 14th
July 2009, was well aware of the aggressive behaviour and/or conduct of the First Defendant,
having had previous knowledge of incidents.
7. By reason of these matters, the Claimant alleges that she suffered personal injury, loss and
damage, including special damages of $41,648.10, for which she claims, as against the
Second Defendant, damages for trespass and/or negligence and consequential loss, interest
and costs. Further, the Claimant claims a declaration that the Second Defendant is liable to
indemnify the First Defendant in respect of any damages, interest and costs awarded to the
Claimant in the action and an order that the Second Defendant pay to the Claimant the
amount awarded against the First and Second Defendants together with interest and costs.
8. By Defence filed on 4th
October, 2013, the Second Defendant avers that the Claimant’s case
against it should be struck out as it discloses no grounds for initiating a claim and is an abuse
Page 4 of 28
of process. Without prejudice to this plea, the Second Defendant, in response to the
allegations contained in the Statement of Case, pleaded as follows:
a. On the 14th
July 2009, the Claimant together with Ms. Chantal Rigaud (the Union
Shop Steward) met to discuss the First Defendant's absence from her post on that
morning. Shortly after the meeting began the Claimant left the meeting and returned
to her office. Thereafter, the Claimant was approached by Ms. Rigaud who requested
to speak with her in the absence of the First Defendant to resolve the issue concerning
the First Defendant. The Claimant consented to the request. During the course of the
conversation between Ms. Rigaud and the Claimant, Ms. Sharon Forde in the
Industrial Relations Department was telephoned and she advised that the First
Defendant should be given time off to seek medical attention and both the Claimant
and Ms. Rigaud agreed to the course of action;
b. Thereafter, the First Defendant was summoned to the Claimant's office and instructed
by the Claimant to seek medical attention and requested to write a report stating the
reasons for her absence. The First Defendant indicated that she had received
permission from Ruby Lalla. Ms. Lalla was also summoned to the Claimant's office.
Thereafter, discussions between the parties continued and the First Defendant
indicated to the Claimant that she was being treated unfairly by the Claimant and that
God would deal with the Claimant. The Claimant then left her office and requested
her secretary call Security to remove the First Defendant from her office since the
First Defendant threatened to kill her;
c. The Claimant then returned to her office and began exhibiting symptoms of a panic
attack. An ambulance and the Claimant's brother were summoned and shortly
thereafter the Claimant's brother took her to seek medical attention;
d. Any assault and/or harassment and/or bullying that the Claimant may prove was
caused and/or occasioned by the First Defendant was not (a) a wrongful act
authorised by the Second Defendant; (b) a wrongful and unauthorised mode of doing
some act impliedly and/or expressly authorised by the Second Defendant; (c) a
wrongful exercise of a discretion conferred on the First Defendant by the Second
Defendant; (d) an act authorised by the Second Defendant; (e) an act which was
closely connected with the First Defendant's employment; (f) an act which was
Page 5 of 28
reasonably incidental to the First Defendant's employment; (g) in the course of the
First Defendant's employment;
e. The alleged acts of the First Defendant do not give rise to a cause of action for assault
and/or harassment and/or bullying;
f. The Second Defendant is not vicariously liable for the alleged actions of the First
Defendant and the Claimant is not entitled to the alleged and/or any of the reliefs
claimed against the Second Defendant;
g. The Second Defendant's duty to provide a safe place of work extends only to acts
which may put other employees at risk if they are foreseeable by the Second
Defendant; in the event that the Claimant may prove any injury to her which was
occasioned by an assault and/or harassment and/or bullying by the First Defendant,
the injury or the alleged actions of the First Defendant were not foreseeable by the
Second Defendant;
h. The Second Defendant was not negligent or in breach its common law duty to the
Claimant in that at all times it had taken all reasonable practicable steps to provide
adequate supervision and a safe place of work and to ensure that its employees
including the Claimant were safe during the course of their employment which
included but was not limited to bullying, harassment and assaults;
i. The injuries suffered by the Claimant were not as a result of the negligence and/or
breach of a common law duty by the Second Defendant;
j. Any injury and/or disability that the Claimant may prove was caused by a pre-exising
weakness or susceptibility in the Claimant which was not known to the Second
Defendant prior to the alleged incident and the Claimant failed to make same known
to the Second Defendant; further, the alleged incident was not likely to cause that
kind of injury to an otherwise fit and able-bodied person not suffering with Major
Depression;
k. The medical reports attached to the Statement of Case are not admitted or denied and
the Second Defendant requires the Claimant to produce the authors of the reports for
cross-examination;
l. Any consequential losses and/or damage suffered by the Claimant were not as a result
of any negligence or breach of a common law duty of the Second Defendant; and
Page 6 of 28
m. The Claimant's present earning capacity is not affected as she is still employed by the
Second Defendant and has been placed on extended leave for up to five years or until
such time as she is certified by a physician as being fit to resume work. Further, the
Claimant's future earning capacity has not been affected since she is able to sustain
employment with her pre-existing condition prior to the alleged incident and there is
no certain medical information and/or diagnosis that her earning capacity would be
affected.
ISSUE 1: APPLICATION TO STRIKE OUT
The Law:
9. Rule 26.2(1)(c) of the CPR states:
“The court may strike out a statement of case or part of a statement of case if it appears
to the court …that the statement of case or the part to be struck out discloses no grounds
for bringing or defending a claim…”
10. According to Zuckerman on Civil Procedure Principles of Practice:1
“The Claimant must state in the particulars of claim facts that establish a complete cause
of action. The test is whether the facts relied upon would, if proved, entitle the Claimant
to the remedy he seeks, or possibly to a different remedy… where a party advances a
groundless claim or defence it would be wasteful to put the case through such processes
since the outcome is a foregone conclusion. A more appropriate response in such cases
would be to strike out the groundless claim or defence at the outset and spare the
unnecessary expense and delay that the employment of the normal process would
involve.” [emphasis mine].
11. In Metivier v The Attorney General of Trinidad and Tobago, Evolving Technologies
and Enterprise Development Company Limited (E-TECK) and Hoyte,2 Kokaram J in
considering an application to strike out a statement of case as disclosing no reasonable cause
of action, stated as follows:
“[4.1] … The statement of case is a fundamental pillar to the Claimant accessing justice
under the CPR. It must be carefully drafted so as to properly articulate the facts in
1 Zuckerman on Civil Procedure Principles of Practice, 2
nd Edition, Paras 6.17 at page 240 and 8.30 at page 279.
2 H.C.387/2007 – Delivered February 10, 2010.
Page 7 of 28
support of the cause(s) of action or the basis on which the claim is being made against
the Defendant. This duty is reinforced by rule 8.6(1) and (2) CPR which mandates that
the claimant include in his claim form or statement of case, a short statement of all the
facts on which he relies and to identify or annex a copy of any document which the
claimant considers necessary to this case.
[4.2] The principles of proper pleading has not been jettisoned by the general wording
of rules 8.6(1) and (2) CPR. The duty to state material facts necessitates a careful
attention to the details of the case that are material to establishing a claim…
[4.6] It stands to reason therefore, that a Claimant’s case must be properly pleaded in
his statement of case as it provides the structure for defining the legal issues to be
determined. It also assists the Court in determining the best method of managing the case
and allocating the Court’s resources for the appropriate resolution of the claim.”
12. In the more recent case of The University of Trinidad and Tobago v Julien and Others,3
Kokaram J. again considered an application to dismiss a claim against five of the six
defendants, pursuant to Rule 26.2 (c) on the basis that there was no ground for bringing the
claim or alternatively, pursuant to Rule 15.2 (b) on the basis that there was no realistic
prospect of success on the claim. He stated as follows:
“[5] Essentially, at the risk of over simplifying the relevant tests and the nuances of
interpretation of the respective rules, the primary caveat in considering these
applications is that the Court should not conduct a mini trial without giving the parties
ample opportunity to present their evidence through witness statements, the process of
disclosure and further information. In considering these applications … the Court is
engaged in an exercise of discretion to give effect to the overriding objective. In so doing
it seeks to achieve what is just in the circumstances of the case which invariably is to
arrive at a decision which is not only economical in light of saving expense and properly
allocating the parties’ and Court’s resources, but also giving due regard to equality of
arms and proportionality of orders in the overall management of a case… A court is
therefore always anxious not to strike out a claim prematurely… Both parties must be
protected: the Claimant from being prematurely driven from the seat of judgment when
3 CV No. 2013-00212 – Delivered April 11, 2014
Page 8 of 28
its case deserves fuller investigation or the Defendants from expending unnecessary
resources in defending a claim which is unmeritorious.” [emphasis mine].
13. In respect of the application to dismiss the claim on the basis that it did not disclose a
ground for bringing the claim, Kokaram J. went on to state:
“[6] … If a claim discloses some ground for a cause of action it is not “unwinnable” and
should proceed to trial. It may be a weak claim but not necessarily a plain and obvious
case that should be struck out and the claimant “slips past that door”… [emphasis mine]
[33] It is indeed worthy of note of this soft approach, especially in the context of this case
that a case will not be struck out in an area of developing jurisprudence and where the
facts need to be to be investigated before conclusions can be drawn about the law. Farah
v British Airways plc and the Home Office (2000) Times 26 January. Partco Group Ltd v
Wragg [2002] EWCA Civ. 594. This “soft approach” is further explained in Zuckerman:
“A strike out decision may also be criticized on an entirely different ground: that
the court was in error in deciding that the issues did not require investigation by
the normal procedural process. In certain circumstances it would be appropriate
to allow an issue to be aired at the trial even if the court believes that the claim or
defence is groundless. For instance, even though the court considers an
allegation of sexual abuse farfetched, it may be desirable to allow the allegation
to be tested at the trial. See S v Gloucestershire County Council. Similarly the
court may allow proceedings to go forward in order to enable the court to clarify
an uncertain point of law.”…”
14. In Real Time Systems Limited v Renraw Investments Limited, CCAM and Company
Limited and Austin Jack Warner,4 the Privy Council upheld the decision of the Court of
Appeal of Trinidad and Tobago in finding that the trial judge was plainly wrong to strike out
the appellant's statement of case pursuant to CPR - Rule 26.2. At para. 17, Lord Mance,
delivering the opinion of the Board, stated:
“There is no reason why the court, faced with an application to strike out, should not
conclude that the justice of the particular case militates against this nuclear option, and
that the appropriate course is to order the claimant to supply further details, or to serve
an amended statement of case including such details, within a further specified period.” 4 Privy Council Appeal No 0056 of 2012
Page 9 of 28
15. In the judgment of the Court of Appeal delivered by Jamadar J.A., he expressed the
following opinion with regard to a purposive reading and interpretation of the CPR:5
“[8] Part 8, Rule 8.6 requires a claimant to set out “a short statement of all the facts
on which he relies” to establish his claim. This rule establishes an objective standard. It
is not what a claimant wants (subjectively) to set out that is required; but rather it is what
a claimant is required (objectively) to set out in order to establish his claim. However,
even this formulation of a claimant’s responsibility may be somewhat understated.
Clearly fairness and justice require, that if a defendant is to be able to discharge the duty
on him to also set out all of the facts on which he relies to dispute a claim made against
him, then a claimant must set out fully (without being prolix) the facts which underpin his
case so as to have the legitimate and relevant issues that he reasonably knows will arise
on his claim raised and responded to. Such an approach is consistent with the purpose
and mandate for the use of pre-action protocols under the CPR, 1998.
[9] The thrust of the CPR, 1998 is towards litigation with full disclosure at the
earliest opportunity and against tactical non-disclosure for the purposes of gaining
strategic advantages in the conduct of litigation.
[10] Moreover, the duty on both claimant and defendant to set out fully all facts which
ought to be stated in the statement of case and defence respectively, is also so as to allow
a judge to properly manage a matter in the context of the CPR, 1998, with its court
driven mandate and the extensive case management powers and responsibilities bestowed
on judicial officers. Thus, a court is responsible for “identifying the issues at an early
stage,” and “deciding promptly which issues need full investigation and trial …”, and
“ensuring that no party gains an unfair advantage by reason of his failure to give full
disclosure of all relevant facts …” The first two of these duties are given priority by
placement in the order of responsibilities set out at Rule 25.1, CPR, 1998. Discharging
this duty is only possible if both a claimant and a defendant set out fully all relevant facts
in support of and in denial of a claim and of the issues that they reasonably know will
likely arise.
[23] … case management, which necessarily includes issue management, is central to
achieving the Overriding Objective of the CPR, 1998, which is to deal with cases justly.
5 Civ App No. 238 of 2011 – paras 8-10, 23-24.
Page 10 of 28
And, to achieve success in this task the court is given certain general wide ranging
powers of management. These are listed at Rule 26.1, CPR, 1998. Among these powers
are several which are directly related to identifying issues and determining whether they
should be heard and if so when and how. And critical to these powers of management is
the specific power to: “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.”
[24] This specific power includes the power to order the delivery of ‘further and better
particulars’ on either a statement of case or a defence. And, in exercising this power the
court can act on its own initiative, pursuant to its duty and power to actively manage
cases. Clearly this is a necessary power, because there will always be matters in which a
‘pleading’, whether a statement of case or a defence, is defective by reason of the
inadequacy of facts disclosed, but not to the extent to make it an abuse of process or to
constitute such a non-compliance with Parts 8 or 10 to reasonably or proportionally
justify striking it out pursuant to Part 26.2. In such cases a court ought to be able to
manage the matter so as to properly identify the issues to be responded to, in say a
defence, by making an appropriate order for the supplying and serving of ‘further and
better particulars’ as directed. In my opinion, a purposive reading and interpretation of
the CPR, 1998 reveals this intention.”
16. In Export-Import Bank of Trinidad and Tobago v Water Works Limited and Others,6
Jones J., applied the decision of the Court of Appeal in Real Time Systems (supra) and
stated:
“[10] The Real Time decision, therefore, requires the court to perform a delicate
balancing act so as to determine whether the facts presented establish a complete cause
of action but are merely lacking sufficient particulars to allow a Defendant to properly
defend the case or whether the lack of particularity has resulted in the Claimant failing to
establish a complete cause of action.
[11] It would seem to me that what is required is a consideration of whether the facts
pleaded by the Claimant establish a cause of action with respect to the various claims. If
a cause of action is established but the claim lacks particularity, then an order for further
and better particulars is usually appropriate. If, however, no cause of action is
6 CV No. 2010-03594 – Delivered May 1, 2012
Page 11 of 28
established or the claim is groundless, in the sense of having no merit or being doomed to
fail in any event, then particulars of the pleading will not assist and an order for further
and better particulars is inappropriate.” [emphasis mine]
Analysis and Findings:
17. The Second Defendant’s application to strike out the Claimant’s claim is based on the
following grounds:7
a. The Second Defendant is not vicariously liable for the alleged actions of the First
Defendant for the following reasons:
i. That any assault and/or harassment and/or bullying that the Claimant may
prove was caused and/or occasioned by the First Defendant was not:
1. A wrongful act authorized by the Second Defendant;
2. A wrongful and unauthorized mode of doing some act impliedly and/or
expressly authorized by the Second Defendant;
3. A wrongful exercise of a discretion conferred on the First Defendant
by the Second Defendant;
4. An act authorized by the Second Defendant;
5. An act which was closely connected with the First Defendant’s
employment;
6. An act which was reasonably incidental to the First Defendant’s
employment; or
7. In the course of the First Defendant’s employment.
b. The Claimant has not pleaded that the First Defendant’s alleged actions form part of
her contract of employment or that the Second Defendant has given expressed or
implied authority for her actions to form part of her contract of employment.
c. The alleged actions of the First Defendant as averred by the Claimant, do not form
part of the employer’s duty for the provision of a safe place of work, safe system of
work or adequate supervision.
7 Notice of Application filed on behalf of the Second Defendant on September 12, 2014, Paras 3-6.
Page 12 of 28
d. The alleged acts of the First Defendant do not give rise to a cause of action for
assault and/or harassment and/or bullying.
Ground 1: The Second Defendant is not vicariously liable for the alleged actions of the
First Defendant
Ground 2: The Claimant has not pleaded that the First Defendant’s alleged actions form
part of her contract of employment or that the Second Defendant has given
expressed or implied authority for her actions to form part of her contract of
employment.
Ground 3: The alleged actions of the First Defendant do not form part of the employer’s
duty for the provision of a safe place of work, safe system of work or adequate
supervision.
18. In its submissions, the Second Defendant dealt with these three grounds together.
19. The Second Defendant submitted that the Claimant’s pleaded case is not sufficient to
establish that the alleged assault was committed by the First Defendant in the course of her
employment. The Second Defendant submits that in order to establish a cause of action in
vicarious liability against the Second Defendant, the Claimant is required to plead that the
alleged acts were either expressly or impliedly authorized by the Second Defendant, were a
wrongful way of performing an authorized act, were closely connected to her employment,
were reasonably incidental to her contract of employment or formed part of her contract of
employment.
20. Further, the Second Defendant submitted that a bare assertion, as appears in the Claimant’s
particulars of negligence, that the First Defendant was in the course of her employment is not
correct in law; the fact that the alleged acts occurred during working hours or whilst the First
Defendant was supposed to be working, does not by itself signal that the acts were performed
in the course of her employment: Irving and Irving v The Post Office.8
21. In response, the Claimant submitted that the Statement of Case has sufficiently disclosed
grounds for bringing a claim against the Second Defendant in vicarious liability since the
pre-requisites for a proper pleading have been fulfilled and the relevant facts in support of
her allegation have been stated. The Claimant submitted that the factual matrix surrounding
8 (1987) IRLR 289
Page 13 of 28
the incident in question was pleaded and the particulars in support are listed. Further, the
Claimant submitted that the First Defendant had a duty to report to her and she had a duty to
supervise in turn and it was not necessary to plead any matter of fact which the law
presumes in the Claimant’s favour, namely that reporting was an act committed in the course
of the First Defendant’s employment.
22. In Halsbury’s Laws of England, the law on vicarious liability is summarised as follows:9
“Vicarious liability is not strictly confined to acts done with the employer's authority but
extends to acts so closely connected with acts the employee was authorised to do that, for
the purpose of the liability of the employer to third parties, the wrongful conduct may
fairly and properly be regarded as done in the ordinary course of the employee's
employment. An employer is liable for the wrongful acts of his employee authorised by
him or for wrongful modes of doing authorised acts. The liability may therefore arise
where the act is one which, if lawful, would have fallen within the scope of the employee's
employment as being in the discharge of his duties or the preservation of the employer's
interests or property, or otherwise incidental to the purposes of his employment…”
23. In the House of Lords decision of Lister and others v Hesley Hall Limited,10
it was held
that in determining whether an employer should be held vicariously liable for an employee’s
wrongful act, the court ought to focus on the relative closeness of the connection between the
nature of the employment and the particular tort. Essentially, a broad approach was required
as it related to the nature of the employment by asking, what was the job on which the
employee was engaged for his employer. In delivering his judgment, Lord Steyn stated as
follows:
“[14] Vicarious liability is legal responsibility imposed on an employer, although he is
himself free from blame, for a tort committed by his employee in the course of his
employment…
[15] For nearly a century English judges have adopted Salmond's statement of the
applicable test as correct. Salmond said that a wrongful act is deemed to be done by a
"servant" in the course of his employment if "it is either (a) a wrongful act authorised by
the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the
9 Tort - Volume 97 (2010) 4 para 692.
10 (2001) UKHL 22.
Page 14 of 28
master": Salmond on Torts, 1st ed (1907), p 83; and Salmond and Heuston on Torts, 21st
ed (1996), p 443… He said (Salmond on Torts, 1st ed, pp 83-84) that "a master . . . is
liable even for acts which he has not authorised, provided they are so connected with acts
which he has authorised, that they may rightly be regarded as modes - although improper
modes - of doing them" …”
24. In his judgment in Lister (supra), Lord Millett put it this way:
“[65] Vicarious liability is a species of strict liability… The theoretical underpinning of
the doctrine is unclear. Glanville Williams wrote ("Vicarious Liability and the Master's
of Indemnity" (1957) 20 MLR 220, 231):
"Vicarious liability is the creation of many judges who have had different ideas of its justification
or social policy, or no idea at all. Some judges may have extended the rule more widely or
confined it more narrowly than its true rationale would allow; yet the rationale, if we can discover
it, will remain valid so far as it extends".
… Atiyah, Vicarious Liability in the Law of Torts wrote to the same effect. He suggested,
at p 171:"The master ought to be liable for all those torts which can fairly be regarded as
reasonably incidental risks to the type of business he carries on". These passages are not
to be read as confining the doctrine to cases where the employer is carrying on business
for profit. They are based on the more general idea that a person who employs another
for his own ends inevitably creates a risk that the employee will commit a legal wrong. If
the employer's objectives cannot be achieved without a serious risk of the employee
committing the kind of wrong which he has in fact committed, the employer ought to be
liable. The fact that his employment gave the employee the opportunity to commit the
wrong is not enough to make the employer liable. He is liable only if the risk is one which
experience shows is inherent in the nature of the business.
[66] While this proposition has never, so far as I am aware, been adopted in so many
words as a test of vicarious liability in any of the decided cases, it does I think form the
unspoken rationale of the principle that the employer's liability is confined to torts
committed by an employee in the course of his employment. The problem is that, as
Townshend-Smith has observed ((2000) 8 Tort Law Review 108, 111), none of the
various tests which have been proposed to determine this essentially factual question is
either intellectually satisfying or effective to enable the outcome of a particular case to be
predicted. The danger is that in borderline situations, and especially in cases of
Page 15 of 28
intentional wrongdoing, recourse to a rigid and possibly inappropriate formula as a test
of liability may lead the court to abandon the search for legal principle.”
25. Of particular importance is the decision of the Court of Appeal in the cases of Weddall v
Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd11
which were
heard together. Both cases addressed the issue of the vicarious liability of an employer for the
violent acts (assault) of an employee against another employee. In Weddall, the employer
was not held to be vicariously liable for the act of its employee who left home, came back to
work and assaulted his manager following a telephone request for the employee to work a
night-shift. In Wallbank, however, the employer was held vicariously liable when an
employee was asked to do something while at work and immediately responded by throwing
the manager onto a table. Pill LJ, stated:
“[43] The distinguishing feature of the present cases, though they are very different from
each other on their facts, is the violent response to a lawful instruction. The essence of
the appellants' cases is that, since employees must receive instructions and respond to
them, an improper form of response, even a violent one, is an act within the course of
employment. A broad view is to be taken of an employee's duties and the scope of
Brown's employment as a powder coater, it was submitted, included a duty to respond to
instructions given to him as a powder coater. A violent response may be an improper one
but it is closely connected with the employment as a powder coater. Similarly in Weddall,
the violent act was a response, at the place of work, to a request to take on a voluntary
shift.”
26. In Wallbank Pill LJ continued as follows:
“[52] However, as Lord Millett recognised in Lister, the circumstances in which an
employer may be vicariously liable for his employee's intentional misconduct are not
closed. Not only was the violence closely related to the employment in both time and
space, it was a spontaneous and almost instantaneous, if irrational, response to an
instruction. Undoubtedly, reaction to instructions, normally by way of carrying them out,
is a part of an employment, whether as a powder coater or in any other capacity. Recent
authorities (Fennelly and, since Lister, Mattis, Brown and Gravil) have demonstrated the
11
(2012) EWCA Civ 25.
Page 16 of 28
need to take a broad view of the nature of an employment and what is reasonably
incidental to the employee's duties under it.
[53] Mr Cleeve puts it broadly: an employee who reacts to an instruction with violence
towards the instructing employee is inevitably acting in the course of his employment. To
accept that broad proposition would, in my judgment, be to go too far. The policy reasons
for limiting the operation of the principle of vicarious liability are sound.
[54] On the other hand, as a matter of loss distribution (Lord Millett in Lister), it may not
be fair and just (Lord Steyn in Lister, Judge LJ in Mattis, Sir Anthony Clarke MR in
Gravil) to deprive of a remedy (except against the fellow employee), an employee who is
assaulted by way of reaction to an instruction he has given. The possibility of friction is
inherent in any employment relationship, but particularly one in a factory, even a small
factory, where instant instructions and quick reactions are required. Frustrations which
lead to a reaction involving some violence are predictable. The risk of an over-robust
reaction to an instruction is a risk created by the employment. It may be reasonably
incidental to the employment rather than unrelated to or independent of it.
[55] I am far from saying that every act of violence by a junior to a more senior
employee, in response to an instruction at the workplace, would be an act for which the
employer is vicariously liable. In the case of Wallbank, however, I am persuaded, not
without hesitation, that the employer should bear vicarious liability for the spontaneous
force by which the employee reacted to the instruction given to him. On the facts, this
may be a step beyond what emerges from the facts of the cases cited but, applying the
principles established in those cases, it is in my view a step that should be taken on the
facts of this case.”
27. In Wallbank Aikens LJ also stated:
“[67] Like Pill LJ, I have found the Wallbank appeal more difficult. However, I think a
close analysis of the facts leads inevitably to the conclusion that the tort committed by
Mr. Brown on Mr. Wallbank was done in the course of Mr Brown's employment. It is
clear on the facts that Mr. Brown attacked Mr Wallbank as a result of the instructions
given by Mr. Wallbank to Mr. Brown. Those instructions were lawfully given by Mr.
Wallbank, as the superior employee. Mr. Brown reacted to them almost immediately. To
my mind the tort flowed directly from the fact that Mr. Brown was given instructions by a
Page 17 of 28
fellow (but superior employee) in the course of Mr. Brown's employment. The tort was so
closely connected with what was expected of Mr. Brown, which was to carry out lawfully
given instructions, that it would be fair and just to hold his employer, Wallbank Fox
Designs Limited, vicariously liable for his tortious attack on Mr. Wallbank.
[68] I accept that, in reaching that conclusion, I have had to make a “value judgment”,
to use the phrase of Lord Nicholls of Birkenhead in Dubai Aluminum Co Ltd v Salaam
[2003] AC 366 at [24] and, obviously, this is a value judgment that is different from that
of Judge Elly who tried the case. But, as Lord Nicholls points out in the same paragraph,
the “value judgment” on whether an employer is vicariously liable for the tort of his
employee is a conclusion of law, based on primary fact and is not “a simple question of
fact”. Thus, with respect to Judge Elly, the more I have considered the facts of Wallbank,
the more I have become convinced that the judge's value judgment was wrong. In my
judgment Mr. Brown's tort against Mr. Wallbank was so closely connected, in time, place
and causation, to the instructions given to him by Mr. Wallbank as part of Mr. Brown's
employment that it is fair and just to hold Mr. Brown's employer liable for his tort.”
28. In Ramdath v Jaikaran and Others,12
the Court of Appeal found that an assault committed
by an employee against a third party was to be regarded as done during the course of his
employment. Accordingly, the decision of the trial judge was overruled and the employers
were held to be vicariously liable for the assault committed by their employee. In delivering
the judgment of the Court of Appeal, Mendonca JA, opined as follows:
“[21] … The question that remains, however, is whether the City is vicariously liable for
the conduct of Jaikaran in this matter. The test of vicarious liability where the tortfeasor
commits an intentional wrong is whether the wrongful conduct was so closely connected
with acts the tortfeasor was authorized to do, that for the purpose of liability of the
employer, his wrongful conduct may fairly and properly be regarded as done by him
while acting in the ordinary course of his employment (see Lister v Hesley Hall Ltd.
[2001] UK HL 22 and Attorney General of British Virgin Islands v Hartwell [2004] UK
PC 12). To relate that specifically to this case the applicable test is whether Jaikaran’s
assault on the Appellant was so closely connected with the acts he was authorized to do
that for the purposes of liability of the City, his conduct may fairly and properly be
12
Civ App 154 of 2005 – Delivered November 27, 2013.
Page 18 of 28
regarded as done by him while acting in the ordinary course of his employment as a
Municipal Police Officer.
[22] We are of the view that the facts in this matter clearly demonstrate the close
connection required to establish the vicarious liability of the City. Jaikaran was a
municipal police officer. His jurisdiction extended to the place that the tort was
committed. He was lawfully issued with a firearm in the performance of his duties and it
is reasonable to infer that this was done with the authority of the City which thought him
a fit and proper person to have access to and to be entrusted with a weapon. He was in
the service of the corporation and carrying out the duties and functions of a municipal
police officer while he interacted with the Appellant which led to the shooting of the
Appellant. Those in our view are sufficient connecting factors to establish vicarious
liability.”
29. I am of the opinion that the case of Irving (supra) relied upon by the Second Defendant does
not support the submission that the Statement of Case should be struck out at this stage on
the basis that the Claimant has failed to disclose a ground for bringing this claim. It is clear
from the decision of the Court of Appeal in that case that the County Court and the Court of
Appeal considered carefully the evidence adduced at trial to determine whether the
defendant was acting in the course of his employment.
30. Upon a careful review of the Statement of Case, I am of the opinion that, while the Claimant
has not expressly pleaded that the First Defendant’s alleged actions form part of the First
Defendant’s contract of employment or that the Second Defendant gave expressed or implied
authority for the alleged actions to form part of the First Defendant’s contract of
employment, the facts contained in the Statement of Case describe the working arrangement
and reporting relationship between the parties. The Claimant has set out a factual matrix to
the incident and expressly alleged that she was performing her duties as Manager- Operator
Services and was discussing work related issues with the First Defendant when the incident
occurred. Further, the Claimant alleged that "whilst in the course of employment" the First
Defendant assaulted and/or harassed and/or bullied her on the Defendant's premises. Further,
the particulars in support of the allegation of trespass and/or negligence are wide enough for
the Claimant to argue that the Second Defendant should be held vicariously liable for the
actions of the First Defendant.
Page 19 of 28
31. Based on the authorities cited above, therefore, I consider that there is a sufficient pleading of
facts in the Statement of Case to permit the Claimant to bring this claim against the Second
Defendant. The Second Defendant has not been embarrassed or otherwise prejudiced by the
pleading and has pleaded in its Defence its own version of what transpired on 14th
July 2009.
Although the Second Defendant may hold the view that the Claimant has a weak case, the
striking out of a Statement of Case before a claimant has had an opportunity to adduce
evidence at a trial has been described by the Privy Council as a nuclear option. The
authorities are also clear that the Court, in the exercise of its discretion, should be slow to
drive a claimant from the judgment seat except in circumstances where the case is
"unwinnable" or otherwise “a plain and obvious case".
32. The law is also clear that in considering this application to strike out, I must assume that the
facts alleged in the Statement of Case are true to represent the Claimant's best case.
Therefore, based on the facts pleaded by the Claimant, I am of the opinion that the Claimant's
case against the Second Defendant cannot be described at this stage as unwinnable and that
the Claimant has an arguable case against the Second Defendant on the pleadings.
Ground 4: The alleged acts of the First Defendant do not give rise to a cause of action for
assault and/or harassment and/or bullying.
33. The Second Defendant also submitted that the alleged actions of the First Defendant and the
pleadings in support of same do not amount to harassment and/or bullying in law and should
be struck out. For the offence of harassment, the Second Defendant relies on Section 30A of
the Offences Against the Person Act, Chapter 11:08 which prescribes certain acts which
may constitute harassment. However, Section 30A (2) provides that a "course of conduct"
involves conduct of the kind referred to in paragraph (a) carried out on at least two
occasions."
34. In this jurisdiction, there is no statutory footing for the act of bullying. The Second
Defendant has submitted that the case of Green v DB Group Services (UK) Ltd13
is
instructive in this regard. In that case, Owen J, dealt with the allegation of bullying at work
and stated as follows:
“[151] The question is whether his behaviour amounted to bullying within the ordinary
meaning of that term. Bullying can take many forms. As I have already observed, and as
13
(2006) EWHC 1898
Page 20 of 28
was acknowledged by the Claimant, the incidents upon which she relies when viewed
individually are not of major significance. It is their cumulative effect that is of
importance. His behaviour to her was domineering, disrespectful, dismissive,
confrontatory, and designed to undermine and belittle her in the view of others. I am
satisfied that such a course of conduct pursued over a considerable period amounted to
bullying within the ordinary meaning of the term. The Claimant was correct to describe it
as such in her confrontation …”
35. Therefore, the Second Defendant submits that since the Claimant has not pleaded more than
one incident nor has she pleaded the cumulative effect of several actions committed by the
First Defendant, the Statement of Case fails to disclose a cause of action for harassment or
bullying.
36. The Claimant has alleged at paragraph 8 of the Statement of Case that a week before 14th
July 2009, she indicated to the Second Defendant’s employees and/or agents her concerns
about supervising and/or giving instructions to the First Defendant. Further, she alleged that
prior to 14th
July, 2009, the Second Defendant was well aware of the aggressive behaviour of
and/or conduct of the First Defendant, having had previous knowledge of incidents.
37. In my opinion, this paragraph does not contain any facts as to the basis for the Claimant's
concerns about supervising and/or giving instructions to the First Defendant. Further, the
allegation that the Second Defendant was well aware of the First Defendant's aggressive
behaviour and/or conduct and the Second Defendant had previous knowledge of incidents
does not in any way link or connect the alleged aggressive behaviour and/or conduct of the
First Defendant or incidents to the Claimant.
38. In the circumstances, I am of the view that on the facts as pleaded the Claimant has failed to
disclose a cause of action for harassment and/or bullying against the First Defendant. As a
consequence, the Claimant has also failed to disclose a ground for bringing a claim against
the Second Defendant to make it vicariously liable for harassment and/or bullying by the
First Defendant.
39. Accordingly, the Claimant's claim against the Second Defendant for damages "arising out of
acts of bullying and/or harassment of the Claimant by the First Defendant" is hereby struck
out.
Page 21 of 28
40. However, insofar as the Claimant has sought to make the Second Defendant vicariously
liable for the alleged assault committed by the First Defendant, the Second Defendant is not
entitled to succeed on its application to strike out the Statement of Case and the same is
hereby refused.
ISSUE 2: APPLICATION FOR AN EXTENSION OF TIME
The Law:
41. According to Rule 26.1(1)(d) of the CPR:
“The court (including where appropriate the court of Appeal) may extend or shorten the
time for compliance with any rule, practice direction or order or direction of the
court;…”
42. As it specifically relates to the discretion of the court in relation to applications for the
extension of time, the authorities are clear that the strict threshold requirements of Rule 26.7
of the CPR are not applicable. The learning in Trincan Oil Limited v Keith Schnake14
is
instrumental here. Therein Jamadar JA, opined as follows at para 18:
“Thus, to the extent that the judge meant or could be interpreted as saying that in any
application for an extension of time after an appeal has been filed, the requirements of
Part 26.7 must be satisfied, I am of the opinion that such an approach is too restrictive.
In my opinion, in applications for an extension of time made before a sanction is imposed
the strict requirements of Part 26.7 do not apply. In such a situation the court has to
exercise its general discretion in determining whether or not to grant an extension of
time. In such a case it may very well be that all of the factors stated in Part 26.7, CPR,
1998 will need to be considered and weighted (without any thresholds), including the
merits of the appeal and questions of prejudice. However, this question does not arise for
determination in this case and I make no definitive suggestions as to what the proper
approach should be.”
43. Accordingly, the court has to exercise a wide and general discretion in determining whether
or not in all the circumstances of the particular case an extension of time should be granted.15
In my view, the approach to be adopted is as follows:
14
Civ App 91 of 2009 – para 18. 15
Trincan Oil Limited v. Keith Schnake, Civil Appeal No. 91 of 2009; Rowley v .Ramlogan, Civil Appeal No. P215
of 2014; Civil Appeal No. 44 of 2014, Roland James v. The Attorney General of Trinidad and Tobago.
Page 22 of 28
a. Consider the Rule 26.7 factors without the mandatory threshold requirements as well
as the overriding objective of the CPR [Rule 1.1 (2)]. It is to be noted that these
factors do not present an exhaustive list and accordingly the court must also consider
all the relevant circumstances of the case;
b. Consider the prejudice likely to be suffered by either party to conclude where the
greater risk of prejudice would lie if the extension of time is granted or refused; and
c. Weigh up the material considerations that favour the granting the extension as against
those which favour its refusal to give effect to the overriding objective of dealing with
cases justly.
44. For ease of reference, the applicable Rule 26.7 factors are listed without the threshold
restriction:
a. Whether the application was made promptly;
b. Whether the failure to comply was not intentional;
c. Whether there is a good explanation for the breach;
d. Whether the party in default has generally complied with all other relevant rules,
practice directions, orders and directions;
e. The interests of the administration of justice;
f. Whether the failure to comply was due to the party or his attorney;
g. Whether the failure to comply has been or can be remedied within a reasonable time;
and
h. Whether the trial date or any likely date can still be met if relief is granted.
45. Rule 1.1 of the CPR sets out that the overriding objective of the CPR is to enable the courts
to deal with cases justly. Dealing justly with the case includes:16
a. Ensuring, so far as is practicable, that the parties are on an equal footing;
b. Saving expense;
c. Dealing with cases in ways which are proportionate to –
i. the amount of money involved;
16
Rule 1.1 (2), Civil Proceedings Rules 1998.
Page 23 of 28
ii. the importance of the case
iii. the complexity of the issues; and
iv. the financial position of each party;
d. Ensuring that it is dealt with expeditiously; and
e. Allotting to it an appropriate share of the court’s resources, while taking into account
the need to allot resources to other cases.
Analysis and Findings:
46. The Second Defendant’s application to strike out the Statement of Case filed on 12th
September, 2014, included, in the alternative, an application for an extension of time to file
and serve its witness statements to a date to be determined by the Court. The original
deadline for the filing and exchange of witness statements was 18th
August, 2014 and a
sanction was imposed that, in default, no evidence could be led from any witness who had
failed to file a witness statement. However, on 18th
August, 2014 the parties filed a consent
application for an extension of time to file witness statements and statements of issues. On 5th
September, 2014, this application was granted without a hearing and time was extended for
so doing until 12th
September, 2014.
47. In exercising my discretion in determining whether or not in all the aforementioned
circumstances an extension of time should be granted, I will now consider the relevant
factors.
Promptitude
48. In the instant matter the Second Defendant’s application was filed on 12th
September, 2014,
which was also the deadline date given for the filing of witness statements. Accordingly, the
sanction imposed by my Order dated 5th
September, 2014 had not yet taken effect. In Rowley
v. Ramlogan,17
Mme. Justice Rajnauth-Lee J.A., in dealing with the factor of promptitude
provided the following guidance:
"Where an application for an extension of time is made before the sanction takes effect, it
should be regarded generally as a prompt application. I am mindful however that there
may be circumstances where the applicant, knowing full well that the order of the court
cannot be complied with, may yet delay the making of the application. In that event, it
17
Civil Appeal No. P215 of 2014 at para. 20, pg. 11
Page 24 of 28
would be for the trial judge to consider how such a delay would impact on the exercise of
the court's discretion."
49. In the circumstances of this case, I am of the view that the Second Defendant’s application
was prompt.
Intentionality
50. Based on the Notice of Application filed by the Second Defendant on 12th
September, 2014,
the Second Defendant failed to file and serve its witness statements based on the primary
application to have the claim struck out which, if granted, would bring an immediate end to
matter and preclude the requirement to file witness statements. In the circumstances I am of
the view that the Second Defendant’s non-compliance with the Order for the extension of
time to file its witness statements by 12th
September, 2014 was not intentional.
Good Explanation
51. As alluded to earlier, the Second Defendant’s explanation for its non-compliance was hinged
upon the application to strike out.
52. In Rowley v. Ramlogan (supra), Mme. Justice Rajnauth-Lee, J.A. stated:
"[24] An explanation that connotes real or substantial fault on the part of the person
seeking relief cannot amount to a good explanation for the breach. Further, a good
explanation does not mean a complete absence of fault: See Mendonca J.A. in Rawti
Roopnarine and another v. Harripersad Kissoo and Others, Civil Appeal No. 52 of 2012,
paragraph 33. What is required is a good explanation not an infallible one. Mendonca
J.A. went on to observe that when considering the explanation for the breach, it must not
be subjected to such scrutiny as to require a standard of perfection."
53. I am of the opinion that in the circumstances of this case, the Second Defendant has provided
a good explanation for its non-compliance.
General Compliance
54. I am of the view that since the commencement of this action the Second Defendant has
generally complied with all other relevant rules, practice directions, orders and directions.
Page 25 of 28
The Interests of the Administration of Justice
55. In order to determine whether this factor has been satisfied, the court has to consider the
needs and interests of the parties as well as other court users.18
As it relates to the parties, the
interests of the administration of justice favours the grant of the application for an extension
of time to file and serve witness statements. The fact remains that in the event that this
application is refused, the Second Defendant has the option to apply for relief from sanctions
and should that application fail, the Second Defendant would be unable to adduce any
evidence in support of its Defence. Further, the Second Defendant would likely be held liable
to pay damages to the Claimant. Conversely, should the application be granted, a Pre-Trial
Review (“PTR”) could be scheduled after the Second Defendant’s witness statements have
been filed and both parties have exchanged same. The parties would then have an
opportunity to consider any evidential objections and a trial date can be fixed.
56. As it relates to other court users, while time has been spent in dealing with this application, I
do not consider that the time consumed has had any significant impact on other court users.
Was failure to comply the fault of the party or his Attorney-at-Law
57. The reason for the Second Defendant’s failure to comply has been previously stated. In the
circumstances, there is no evidence indicative of the fact that the non-compliance was the
fault of the Second Defendant.
Can the failure to comply be remedied in reasonable timeframe
58. In the event that this application is granted, fresh directions can be given for the filing and
service of the witness statement on or before a specified date.
Can trial date be met if relief is granted
59. Owing to the fact that no trial date has yet been set for the hearing of the substantive matter,
once this application is determined, the matter can proceed to a further Pre-Trial Review and
the fixing of a trial date.
The Overriding Objective Factors
60. The factor of placing parties on an equal footing is not relevant in this matter. As it relates to
the saving of expense, it is noted that even if the Second Defendant had filed its Witness
18
Rowley v Ramlogan, Civ App No. P215 of 2014 at para. 34
Page 26 of 28
Statements on time, the costs associated with hearing the application to strike out would still
have been incurred. Accordingly, I do not consider that there would been any significant
saving of costs if the Second Defendant had filed its witness statements by 12th
September,
2014. In fact, if the application to strike out had been successful, the costs incurred by the
Second Defendant in preparing the witness statements would have been unnecessarily
incurred.
61. As it relates to proportionality, this claim is important to both parties and the issues for
consideration in the substantive matter are not simple. The claim is for damages and
consequential loss which could be substantial if the Claimant succeeds. There is no evidence
before me of any disparity between the financial positions of the Claimant and the Defendant
but I am prepared to conclude that the Claimant is in an inferior financial position relative to
the Second Defendant. Inherent in overriding objective is the consideration of proportionality
of the trial judge's decision in relation to an action before him. There must be a comparison
of the consequences of refusing such an application, in which case the Second Defendant
would be required to make an application for relief from sanctions or face the possibility of
having judgment entered against it in default of leading any evidence to support its defence.
Should the application be granted, the Second Defendant will be given an opportunity to
defend its claim and to have the court adjudicate on the issues raised on the pleadings and the
Claimant would also be entitled to adduce evidence at the trial in support of her claim in
respect of the alleged assault committed by the First Defendant.
62. On the factor of expedition and allotting an appropriate share of the court's resources to the
matter, I am of the view that if the application is refused, it is more than likely that the court
will be faced with either an appeal against the court's decision or an application for relief
from sanctions which would further delay this matter. Conversely, should the extension be
granted, the matter will take the usual course since the matter is at the stage of a Pre Trial
Review and the next steps in the process will be for the Second Defendant to file witness
statements and for the parties to exchange witness statements shortly thereafter. There will
also be an opportunity given to both parties to take evidential objections, if any, and fix a
trial date.
Page 27 of 28
Prejudice
63. A refusal of this application would certainly be prejudicial to the Second Defendant as it
would then have to seek relief from sanctions which will require it to satisfy the mandatory
threshold requirements of Rule 26.7 (1) and (3) of the CPR. Further it is anticipated that the
Claimant would resist any such application. This would result in further delay and the accrual
of further legal costs on both sides. Should the Second Defendant apply for relief from
sanctions and fail or, in the alternative opt not to, the Second Defendant would again be
prejudiced as it would not be in a position to defend its claim or put forward a positive case.
64. Conversely, should the application be granted, the prejudice to the Claimant would be
proceeding to trial and thereby incurring legal costs. Although this application has caused a
delay in fixing a trial date, I am of the opinion that this delay presented no prejudice to either
party. In the circumstances, the question of prejudice should be decided in favour of the
Second Defendant.
CONCLUSION
Striking Out Application:
65. As it relates to the application to have the Claim Form and Statement of Case stuck out, I am
of the view that in the interest of justice such a nuclear option should be avoided. On the
facts, the Claimant has an arguable case against the Second Defendant in vicarious liability
for the alleged assault of the First Defendant and it would be premature to dismiss her entire
case at such an early stage.
66. That being said, the specific allegation that the First Defendant harassed and/or bullied the
Claimant has no basis in law based on the facts pleaded and I accordingly rule that this
allegation be struck out.
Extension of Time Application:
67. As it relates to the application for an extension of time, I am of the opinion that the following
material considerations favour the grant of the application:
a. the application was filed promptly;
b. the failure to file the witness statement on time was not intentional;
c. there was a good explanation for the breach;
Page 28 of 28
d. there was general compliance by the Second Defendant with the rules, orders and
directions of the court;
e. the administration of justice favours the grant of the application;
f. the failure to comply was not due to the fault of the Second Defendant;
g. the non-compliance can be remedied in a reasonable timeframe;
h. since no trial date had yet been fixed, the matter may now proceed expeditiously to
trial if the application is granted;
i. the overriding objective factors favour the grant of the application; and
j. the Second Defendant is likely to suffer substantial prejudice if it is not permitted to
give evidence at the trial.
68. In the premises, I am of the view that the Defendant's application for an extension of time to
file his Witness Statements should be granted.
ORDER
69. Having regard to the aforementioned, this Court orders as follows:
a. The Application of the Second Defendant filed on 12th
September, 2014 to strike out
the Claim Form and Statement of Case of the Claimant is dismissed;
b. The Claimant claim for damages and consequential loss arising of acts of bullying
and/or harassment by the Second Defendant on the 14th
July, 2014 is hereby struck
out;
c. The Second Defendant is hereby granted an extension until 10th
April, 2015 to file
its witness statements and the parties are directed to exchange witness statements by
17th
April, 2015.
d. Having regard to the terms of the Orders made herein, I will order the Second
Defendant to pay to the Claimant two-thirds of the costs of this application, to be
assessed in default of agreement.
Dated this 16th
day of March, 2015
……………………………….
Andre des Vignes
Judge