CIVIL PROCEDURE AND PRACTICE
11
SANCTIONS
AND
RELIEF FROM SANCTIONS.
WHAT IS A SANCTION?
According to the Oxford English dictionary a sanction
is a threatened penalty for disobeying a law or rule.
The court has the power to impose sanctions under the
Civil Proceedings Rules (CPR) to encourage obedience
to the Rules, Practice directions and Orders and
Directions of the court.
STRIKING OUT PLEADINGS
In the exercise of its case management powers the
court may strike out a statement of case or part of a
statement of case if it appears to the court-
a) that there has been a failure to comply with a rule,
practice direction or with an order or direction given
by the court in the proceedings; (not part of the B’dos
CPR).
STRIKING OUT CONT’D
b) that the statement of case or the part to be struck
out is an abuse of the process of the court;
c) that the statement of case or part to be struck out
discloses no grounds for bringing or defending a claim;
or
d) that the statement of case or the part to be struck
out is prolix or does not comply with the requirements
of Part 8 or Part 10.
See Guy. Order 12 C Rule 3; T&T Pt. 26.2; OECS and
B’dos Pt. 26.3.
SANCTIONS--- UNLESS ORDERS
Where a party has failed to comply with any of these
Rules or any court orders in respect of which no
sanction for non-compliance has been imposed the
other party may apply to the court for an “unless
order”.
The relevant Rule in B’dos does not expressly provide
for an “unless order” but the Rule has the same effect
as in the other jurisdictions.
UNLESS ORDERS CONT’D
Where there is such a failure any other party may move
the court on notice for an order that the step in the
proceedings be taken within the time limited in that
order or for relief of a kind referred to in sub-rules (1),
(2), (3) and (4) of rule 26.3 or any other order the court
thinks fit.
See Guy. Order 12C Rule 4; OECS Pt. 26.4 (1); T&T 26.4
(1) and B’dos Pt. 26.3 (5).
UNLESS ORDERS- THE PROCEDURE
The application for an “unless order” is to be made by
Notice pursuant to Part 11 of the CPR. The Notice must
be supported by affidavit evidence. A draft order
should accompany the application.
In Guyana the application is made by an interlocutory
summons supported by affidavit.
SANCTIONS-WHERE THERE IS
NON-COMPLIANCE
Where a party has failed to comply with any of these
Rules, a direction or any court order, any sanction for
non-compliance imposed by the Rules or the court
order has effect unless the party in default applies for
and obtains relief from the sanction.
RELIEF FROM SANCTION
Relief is sought by Notice (interlocutory summons in
Guyana) supported by affidavit.
The application must be made promptly.
The court may grant relief only if it is satisfied that-
a) the failure to comply was not intentional;
b) there is a good explanation for the breach;
The party in default has generally complied with all
relevant rules, practice directions, orders and
directions.
RELIEF FROM SANCTIONS CONT’D
In considering whether to grant relief the court must have
regard to-
a) the interest of the administration of justice;
b) whether failure to comply was due to the party or
his attorney;
c) whether the failure has been or can be remedied
within a reasonable time; and
d) whether the trial date or any likely trial date can
still be met if relief is granted; and
e) the effect which the granting of relief or not would
have on each party (this requirement is only applicable in
Guyana and the OECS).
RELIEF FROM SANCTIONS CONT’D
The court may not order the respondent to pay the
applicant’s costs in relation to any application for relief
unless exceptional circumstances are shown.
THE COURT’S POWERS TO RECTIFY
ERRORS
Where there are no consequences expressly stated for
failure to comply with a rule, practice direction or court
order, the court may under its general powers of case
management make an order to rectify the error or failure.
An error of procedure or failure to comply with a rule,
practice direction or court order does not invalidate any
step taken in the proceedings, unless the court so orders.
See Pt. 26.4 B’dos; Pt. 26.8 T&T; Order 12C Rule 9 Guy. and
Pt. 26.9 OECS.
RELIEF FROM SANCTIONS- THE
BARBADOS POSITION
The requirements for relief from sanctions are not,
strictly speaking, applicable in Barbados. Pt. 26.4(3) of
the B’dos CPR states:
“Where there has been an error of procedure or
failure to comply with a rule, practice direction, court
order or direction, the court may make an order to
rectify the error or failure.”
Pt. 26.4(4) further states that the court may make such
an order on or without an application by a party.
RELEVANT CASES
In the case of Biguzzi- v – Rank Leisure Plc [1999] 1 WLR
1926 Lord Wolf made the point that by a proper exercise of
its case management powers under the CPR, a court should
be able to ensure that the parties do not disregard time
tables, while at the same time seek to produce a just and
fair result.
In the case of Woodward-v- Finch [1999] CPLR 699 the
court had to make an unless order where the
claimant/plaintiff had failed to serve his witness statement
in accordance with the directions of the court. The
claimant/plaintiff had to apply for relief from striking out
and was granted the relief.
RELEVANT CASES CONT’D
Barrow JA however, in the case of Nevis Island
Administration –v- La Copropriete du Navire St.
Christopher and Nevis Civil Appeal No. 7 of 2005
refused the application for relief from sanction on the
grounds that the application was not made promptly
(5 months had expired), no good explanation was
offered for the failure to comply and there was non-
compliance with other orders and rules.
RELEVANT CASES CONT’D
In the case of J.R. O’Neal and GA Cobham Ltd. –v- Cliff
Williams, Civil Appeal No. 1o of 2006 the defendant
failed to give reasons in his Defence for denying an
allegation made in the statement of claim contrary to Part
10.5 of the CPR.
The defendant failed to comply with an order of the Master
to amend within a specified time and he failed to attend an
adjourned case management conference.
Judgment was entered against the defendant by the Master.
The defendant sought an extension of time to appeal the
Master’s decision.
RELEVANT CASES CONT’D
In seeking relief from sanction the Appellant was unable to
satisfy the court that he had complied with other rules and
orders of the court. The relief was refused.
The above decisions were all approved by the full court in the
case of Dominica Agricultural and Industrial Development
Bank Ltd. – v- Mavis Williams No.1 Civil Appeal No. 20 of
2005.
In this case the court found that there was an abuse of the
court’s process for the appellant to await the outcome of
assessment of damages before appealing a judgment on liability
in disregard of the time limit fixed by the rules. Application for
an extension of time was refused.
RELEVANT CASES CONT’D
1. Andrew Khanhai –v- Prison Officer Darryl Cyrus
and The AG of T&T Civil Appeal No.158 of 2009;
2. Ramesh Seebalack-v- Charmaine Bernard (Legal
Personal Representative of the Estate of Reagan
Nicky Bernard) Civil Appeal No. 261 of 2008;
3. Privy Council Appeal No. 33 of 2009( Seebalack);
4. Roopnarine –v- Kissoo and Ors. Civil Appeal No.
52 of 2012 on the meaning of promptitude;
5. AG of T&T-v- Miguel Regis Civil Appeal No. 79
2011.
RELEVANT CASES CONT’D
6) Trincan Oil Civil Appeal No. 65 of 2009;
7) Trincan Oil 2 Civil Appeal No. 91 of 2009;
8) AG of T&T-v- Universal Projects Ltd. Civil Appeal
No. 104 0f 2009;
9) AG of T&T –v- Universal Projects Ltd. PC No. 67 0f
2010;
10) AG of T&T –v- Keron Mathews PC No. 68 of 2010
(extension of time for filing defence no relief
necessary).
THE END
END
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