Attorney General of Trinidad and Tobago v Matthews
| Jurisdiction | UK Non-devolved |
| Judge | LORD DYSON |
| Judgment Date | 20 October 2011 |
| Neutral Citation | [2011] UKPC 38 |
| Date | 20 October 2011 |
| Docket Number | Appeal No 0068 of 2010 |
| Court | Privy Council |
[2011] UKPC 38
Lord Phillips
Lord Brown
Lord Kerr
Lord Dyson
Sir Patrick Coghlin
Privy Council
Appellant
Peter Knox QC
David di Mambro
(Instructed by Charles Russell LLP)
Respondent
Aiden Casey
Aisha Serrette
(Instructed by Bankside Commercial Solicitors)
On 28 September 2009, the claimant issued proceedings against the defendant claiming damages for assault and battery. His case is that he was assaulted and beaten in prison by a prison officer called Garcia. The claim form and statement of case were served on 29 September 2009. The period for filing a defence expired on 11 November 2009 ( CPR 10.3(3)). On 15 October, the defendant filed a notice of appearance indicating an intention to defend the claim. Ms Patricia Cross was assigned as the attorney for the State. She asked for Prison Officer Garcia to attend a meeting on 9 November to give her instructions. He did not attend. The last date for filing the defence was 11 November. By that date, the defendant had neither filed a defence nor sought an extension of time for doing so.
On 7 December Ms Cross asked for Prison Officer Garcia to attend her office on 28 December. Once again he did not attend. By a letter dated 10 December to the claimant's attorney, the defendant requested the claimant's agreement to an extension of time of 48 hours from 13 November, since Ms Cross was still having difficulties in obtaining the necessary instructions for preparing the defence. On 11 December, the claimant's attorney replied refusing to agree to an extension of time, saying that the guidance of the Court of Appeal was that (since the request for an extension of time was made after the time for filing the defence had expired) the defendant had to apply to the court for relief from sanctions under CPR 26.7.
On the same day, the claimant filed an application for permission to enter judgment in default of defence. This application was served on the defendant on 29 December. On 13 January 2010, the Legal Department of The Prison Administrative Offices told Ms Cross that arrangements would be made for Prison Officer Garcia to meet her on 19 January. On 14 January, the defendant filed an application under CPR 10.3(5) and 26.1(1)(d) for an extension of time for the filing and service of the defence on the grounds that additional time was needed to obtain complete instructions. This application was served on 15 January.
On 18 January, Gobin J heard both the claimant's application for permission to enter judgment in default of defence and the defendant's application for an extension of time. She dismissed the claimant's application and granted the defendant an extension of time until 9 February to file and serve the defence (with judgment for the claimant in default). The claimant appealed to the Court of Appeal on 22 January. Gobin J gave her written reasons on 8 February. The defendant filed a defence on 9 February. On 12 February, the Court of Appeal (Kangaloo and Stollmeyer JJA, Narine JA dissenting) allowed the appeal against both of Gobin J's decisions and gave the claimant permission to enter judgment in default of defence.
Relevant provisions of the CPR
Rule 1.1 defines the "overriding objective" of the rules as being to enable the court to deal with cases justly. Rule 1.1(2) provides that this includes ensuring that a case is dealt with expeditiously. Rule 1.2(2) provides that the court must seek to give effect to the overriding objective when it "interprets the meaning of any rule". Part 10 contains rules in relation to defences and provides that a defendant may apply for an order extending the time for filing a defence (rule 10.3(5)). The general rule is that the period for filing a defence is 28 days after the date of service of the claim form and statement of case (rule 10.3(1)). But in proceedings against the State, the period for filing as defence is 42 days after that date (rule 10.3(3)). Part 12 contains rules in relation to default judgments. It provides that, if requested by the claimant to do so, the court office must enter judgment if the defendant fails to enter an appearance where the time for doing so has expired (rule 12.3) and the defendant fails to file a defence where the time for doing so has expired (rule 12.4). Part 13 deals with the setting aside or varying of default judgments. Rule 13.3(1) provides:
"The court may set aside a judgment entered under Part 12 if—
(a) the defendant has a realistic prospect of success in the claim; and
(b) the defendant acted as soon as reasonably practicable when he found out that judgment had been entered against him."
Part 26 sets out the court's powers of case management. It has the power to extend the time for compliance with any rule, practice direction or order or direction of the court (rule 26.1(1)(d)). Rule 26.6 provides:
"(1) Where the court makes an order or gives directions the court must whenever practicable also specify the consequences of failure to comply.
(2) 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 rule or the court order has effect unless the party in default applies for and obtains relief from the sanction, and rule 26.8 shall not apply"
Rule 26.7 provides:
"(1) An application for relief from any sanction imposed for a failure to comply with any rule, court order or direction must be made promptly.
(3) The court may grant relief only if it is satisfied that -
(a) the failure to comply was not intentional;
(b) there is a good explanation for the breach; and
(c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions.
(4) In considering whether to grant relief, the court must have regard to-
(a) the interests of the administration of justice;
(b) whether the failure to comply was due to the party or his attorney;
(c) whether the failure to comply has been or can be remedied within a reasonable time; and
(d) whether the trial date or any likely trial date can still be met if relief is granted."
Gobin J's reasons
In summary, the judge's reasoning was as follows. The court has a discretion to extend the time for compliance with any rule or practice direction (rule 26.1.1(d)) and to extend the time for serving a defence (rule 10.3(5)). In granting an extension of time pursuant to these rules, she placed significant weight on the fact that the extension would cause no prejudice to the claimant, whereas refusal of an extension would deprive the defendant of the opportunity to defend the claim. The defendant's failure to file a defence within the 42 day period fixed by the rules (rule 10.3(3)) did not automatically attract any sanction. Rather, it left the defendant exposed to the possibility of an application for judgment in default. That is not a sanction within the contemplation of the rules. Rule 26.7 has no application where no sanction has been imposed by a court order or by a rule.
The decision of the Court of Appeal
It was common ground before the Court of Appeal that this was a rule 26.7 case. There was binding authority in the Court of Appeal of Trinidad and Tobago which supported that view. Kangaloo and Stollmeyer JJA said that this was by implication a relief from sanctions case which fell to be determined in accordance with rule 26.7 and that the conditions of rule 26.7(1) and (2) had not been satisfied. Accordingly, the judge had erred. The time for serving the defence should not have been extended and the claimant's application for permission to enter judgment should have succeeded. Narine JA, dissenting, said that rule 26.7 did not apply. The matter fell to be dealt with under rule 10.3(5) and he saw no reason for interfering with the judge's...
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