Commonwealth Caribbean Civil Procedure

Gilbert Kodilinye, Vanessa Kodilinye

• Publisher: Routledge-Cavendish
• Year: 2016
• ISBN:
  9781317694144
• Edition: 4
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This new fourth edition of a well-established book is a timely response to the continuing development of the new rules of civil procedure in force in most of the jurisdictions of the English-speaking Caribbean. The new edition has been substantially revised to cover amendments to, and recent case law interpreting and applying, the Civil Procedure Rules of the various territories. It is essential reading for law students and legal practitioners in the region.

Chapter 1
Introduction

The procedure in civil actions in the Supreme Courts, High Courts and Courts of Appeal in most Commonwealth Caribbean jurisdictions is now governed by the new Civil Procedure Rules (CPR). The several (very similar) versions of these Rules are in force in the Eastern Caribbean States (OECS) (since October, 2000), in Jamaica (since January, 2003), in Belize (since April, 2005), in Trinidad and Tobago (since September, 2006), and in Barbados (since October, 2009). In the other jurisdictions (The Bahamas, Guyana, Cayman Islands and Bermuda), the ‘old’ Rules of the Supreme Court (RSC) remain in force, though The Bahamas has adopted some of the case management features of the CPR. It can thus be seen that the CPR now dominate the procedural landscape virtually throughout the Caribbean.

The Caribbean versions of the CPR are broadly modelled on, but differ in many of their details from, the English CPR, which came into force in April, 1999. The genesis of the English Rules was Access to Justice, the Report of a committee chaired by Lord Woolf, MR, which was published in 1996. The English Rules, which are generally referred to as the ‘Woolf Rules’, were designed to remedy the perceived defects of the system of civil litigation under the RSC as identified in the Woolf Report, namely, an excessively adversarial environment, excessive and unaffordable costs, undue delay and over-complexity.¹

The main feature of the CPR is the system of ‘case management’, which aims to ensure that disputes ‘progress as expeditiously and economically as possible to a fair settlement (by negotiation or mediation or some other system of alternative dispute resolution (ADR)) or trial’.² Whereas, under the RSC regime, the progress of an action was very much in the hands of the litigants’ attorneys, under the CPR the management of cases is placed firmly in the hands of the judges and masters, whose function it is to set the agenda for interim applications, preparation for trial, and the trial itself.

Now that the CPR have been in operation for several years, it is apparent that the case management system has been largely successful in curing two of the main ills of the old regime, namely undue delay and excessively adversarial environment, as the judges have been commendably active and innovative in the application of the new Rules. On the other hand, ‘front loading’ of costs, brought about by the need for considerably more preparatory work on the part of attorneys, has proved problematic for less financially well-endowed litigants, and is likely to remain a problem for the foreseeable future. It is also significant that there is a constantly expanding body of case law focusing on many aspects of the new Rules, with positive consequences for the development of a distinct and solid jurisprudence in the area of civil procedure in the Caribbean.

The Overriding Objective

Rule 1.1 of the Jamaican Civil Procedure Rules contains the words:

These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

The reference to a ‘new procedural code’ is clearly intended to emphasise that the Jamaican CPR replaces the former Judicature (Civil Procedure) Code in its entirety. It may also serve to support the view that, in applying the new Rules, judges should not ‘look over their shoulders’ to the former Rules and the case law interpreting them, and that cases decided under the old Rules are ‘no longer generally relevant’ to the CPR – a point that Lord Woolf himself made in Biguzzi v Rank Leisure plc³ when considering the similar wording of the English CPR. It is submitted, however, that the courts in Caribbean jurisdictions need to take a somewhat different approach from that advocated by Lord Woolf and other English judges, for a number of reasons. First, although the Jamaican and other Caribbean Rules are broadly modelled on the English CPR, they differ from the latter in many important respects, and judicial pronouncements on the effect of the English CPR will not necessarily be useful, even as persuasive authorities, in the Caribbean context. Second, the radical approach to civil procedure reform in England and Wales was driven to some extent by the need to bring the approach to civil justice in the UK into line (in admittedly limited respects) with the inquisitorial method of adjudication employed in the civil law systems of the UK’s European Union partners – a factor which is not present in the Commonwealth Caribbean. Third, some of the case law on civil procedure in Caribbean jurisdictions that developed under the old Rules was concerned with situations that are unique to Caribbean jurisdictions and, in the absence of evidence that those situations have changed in material respects, some of the decisions of Caribbean courts under the old Rules may well retain their validity under the new CPR regime. Fourth, if, in their wisdom, the Rules Committees in the Caribbean decided to use in a particular new Rule wording that was almost identical to that of the equivalent provision in the old Rules, there would be a strong argument for treating Caribbean case law interpreting the old Rule as being of at least persuasive authority in interpreting the new. Fifth, unlike in England and Wales, where dozens of practice directions have been handed down in order to supplement and to give detailed guidance as to the application of the new English Rules, so far there are relatively few practice directions on the Caribbean Rules; accordingly, in the absence of such practice directions, guidance as to the application of the new Rules could be sought from case law decided under the equivalent sections of the old Rules. Lastly, it is worth bearing in mind that many of the most important powers of the court in matters of civil procedure are derived not from the Civil Procedure Rules but from statute, or from the inherent common law or equitable jurisdiction of the Supreme Court. Examples are the power to award security for costs against impecunious corporate claimants under the companies legislation,⁴ and the jurisdiction to grant interim,⁵ Mareva (‘freezing’),⁶ and Anton Piller (‘search’) injunctions,⁷ and Norwich Pharmacal orders.⁸ Moreover, civil procedure is significantly affected by many rules of substantive law developed by the common law courts, such as the doctrine of forum conveniens,⁹ the ‘cheque rule’,¹⁰ ‘without prejudice’ communications,¹¹ and legal professional privilege.¹² The significance of this in the present context is that case law dealing with any such powers or principles, which are derived from sources other than the CPR, is unaffected by the introduction of the new Rules, and decisions that were considered binding or persuasive before the introduction of the CPR will remain binding or persuasive to the same extent.

Interestingly, in Quarrie v C&F Jamaica Ltd,¹³ one of the first cases decided under the Jamaican CPR, Mangatal J expressed the entirely sensible view that Lord Woolf’s statement in the Biguzzi case, to the effect that cases decided under the old RSC were no longer generally of any relevance under the CPR:

… does not, and cannot mean that there is a complete abandonment of old authorities … the emphasis must be on the word ‘generally’ no longer of any relevance. It seems to me that where the provisions being considered are the same or substantially the same, or where the previous authorities deal with certain basic procedural principles that repeat themselves in the CPR, then they may be of some use.

A similar view was expressed in another Jamaican case, Manning Industries Inc v Jamaica Public Service Co Ltd,¹⁴ by Brooks J, who admitted that ‘some guidance can be gleaned from the old authorities’. This case was of particular significance as it concerned an application for security for costs against a foreign claimant. Brooks J quite rightly noted that little guidance could be gained from recent cases decided under the equivalent provisions of the English CPR, as the UK courts were, under the European Convention on Human Rights, obliged to consider matters that did not concern the Jamaican courts. He therefore held that the principles to be applied in Jamaica were those stated in earlier cases decided under the RSC.¹⁵

More recently, Alleyne J, in the Barbados High Court, expressed the view that:

… while it is important that the CPR are not hidebound by authorities relating to the old rules, it does not follow that all such authorities are redundant. Decisions relating to provisions of the RSC may provide useful guidance where they interpret a rule, the content and context of which is not dissimilar to a rule in the CPR.¹⁶

Significantly, the ECS Rules do not contain any reference to a ‘new procedural code’, their draftsman being content to refer simply to the overriding objective. It may be argued that the omission of any reference to a new code shows a desire not to make a complete break with the past but rather to modernise the system of civil procedure, while retaining as much of the extensive Caribbean jurisprudence developed under the old Rules as would be compatible with the overriding objective. Indeed, in Boyea v Eastern Caribbean Flour Mills Ltd,¹⁷ Pemberton J opined that ‘where the pre-CPR authorities mesh with the overriding objective, they can be highly persuasive in arriving at a decision’. Also, as noted above, although several basic concepts in the n...