One of the factors which make Trinidad and Tobago attractive to foreign investors is the fact that they can expect any disputes in which they may become involved to be determined impartially by a judiciary whose independence is protected by the Constitution of Trinidad & Tobago.
In this Chapter, Debra Thompson and Catherine Ramnarine, Partners in Hamel-Smith’s Dispute & Risk Management Practice Group, provide an overview of the civil litigation process, including some of the procedures which may apply when a party needs to obtain prompt relief in urgent commercial cases.
Trinidad & Tobago has a traditional common law system (similar to that of the UK) that is based on:
The Constitution is the supreme law of Trinidad & Tobago. Fundamental human rights and freedoms, including rights to liberty, expression, property, freedom of association and freedom of the press are expressly recognised and entrenched by the Constitution. The enjoyment of these rights is constitutionally guaranteed not only for citizens but also for foreign individuals and legal entities.
Statutes enacted by the Trinidad & Tobago Parliament are, in general, modelled after UK legislation, the major exception being the Companies Act (which is based on the Canadian model).
The doctrine of precedent (legal principles derived from decided cases) applies in Trinidad & Tobago and ensures, as far as possible, consistency in legal decisions. Decisions of the Supreme Court and the Privy Council are binding upon all local courts, while those of the UK and to some extent other Commonwealth Courts, especially Australia, New Zealand and Canada, are considered highly persuasive.
Most commercial disputes (unless they are resolved ‘out of Court’ by negotiations between the parties, mediation or some other form of alternative dispute resolution) will be heard and determined by the Supreme Court, which comprises:
Decisions of the Court of Appeal can be appealed to the Judicial Committee of the Privy Council in the United Kingdom, which is the highest appellate court of Trinidad & Tobago. Such appeals lie as of right in most matters.
The Judiciary is independent from the executive and legislative branches of Government. The Judges of the High Court and Court of Appeal are appointed by the Judicial and Legal Services Commission (an independent body) while the Judges of the Judicial Committee of the Privy Council are essentially the same Judges who sit in the Supreme Court of the United Kingdom.
It is possible for a contract to expressly provide that it is to be governed by the law of a country other than Trinidad & Tobago. Such a clause would generally be recognised and given effect by the Trinidad and Tobago Court provided that the relevant choice of law is bona fide and legal and there is no reason for avoiding the choice on grounds of public policy.
The ‘new’ Civil Proceedings Rules (“CPR”), which mirror similar reforms introduced in the UK, came into force in September 2005. Part 1 of the CPR sets out the “Overriding Objective” which the court must consider when interpreting or exercising discretion under the Rules. The Overriding Objective sets the tone for the CPR as it seeks to ensure that the court deals with cases justly by: (a) ensuring the parties are on an equal footing; (b) saving expense; (c) dealing with cases proportionately to the money, importance, complexity and financial positions of the parties; (d) ensuring that cases are dealt with expeditiously; and (e) allotting appropriate shares of the court’s resources.
Generally, the CPR is geared towards improving the efficiency of the litigation process and expediting the resolution of disputes. One important by-product of this is the need to ‘front load’ case preparation. It is important that comprehensive instructions, including relevant documentation and records, are provided at a very early stage and, in most cases, prior to an action being filed.
Settlement of disputes is also encouraged and facilitated under the CPR, as is the increased use of technology.
The Practice Direction on Pre-Action Protocols (“the Protocols”) issued by the Supreme Court outlines the steps that parties should take in relation to prospective legal claims. The Protocols are, in general, aimed at encouraging the early exchange of information about the claim between the parties, so as to:
(a) enable the parties to avoid litigation by exploring the possibility of settlement before litigation is commenced; and/or
(b) support the efficient management of those disputes that do proceed to litigation.
Non-compliance with the Protocols may be taken into account by the Court when awarding costs for or against the parties at the conclusion of litigation.
Before commencing litigation, the party suing (the claimant) is required to write to the party being sued (the defendant) giving details of the claim. The Defendant is required to provide a detailed response within a reasonable time which is generally taken to be about 28 days.
The claimant’s letter should:
The defendant’s letter should:
If the Claimant receives no or no satisfactory response to its letter, or if the parties are unable to resolve the matter at the Pre-Action stage, the Claimant may commence litigation proceedings. The Pre-Action Protocols require significant case preparation and disclosure by both the Claimant and the Defendant prior to the commencement of litigation.
This affords an opportunity for some disputes to be resolved in a cost-effective and timely manner without having to resort to litigation. However, it also necessitates the front loading of cases and the provision of detailed, comprehensive instructions, documents and records at a very early stage.
The Claimant commences litigation by filing a ‘Claim Form’ and a ‘Statement of Case’ at the High Court. The Claimant’s Statement of Case must set out all the facts on which he relies, identify or annex copies of all documents necessary to prove its case, and contain a ‘statement of truth’ by or on behalf of the Claimant certifying its contents. It is the Claimant’s responsibility to ensure that the Claim Form and Statement of Case are personally served on the Defendant. If the Defendant is not in Trinidad & Tobago, a special application for permission to serve him out of the jurisdiction must be made to the Court.
A Defendant who has been served with a claim must, if he disputes it:
The Claimant may file a Reply to the Defence if he obtains the Court’s permission to do so, or with the permission of the Defendant if it is before the first Case Management Conference (see below).
Once the first Case Management Conference (see below) in the matter has taken place, neither party will be allowed to amend the Statement of Case or Defence unless he can prove that there was some change in circumstances that only became known to him after that Case Management Conference. This underscores the importance of early case preparation and the need to provide detailed instructions, including supporting documentation, as early as possible.
One of the innovations of the CPR is the introduction of case management, which is intended to enable the Court to deal with cases as justly and efficiently as possible. A docket system is used under which an action is assigned to one judge who actively manages it from case management to final disposition at trial.
Once a Defence has been filed, the action will be assigned to a Judge and a Case Management Conference (“CMC”) will be scheduled.If the court does not give notice of a CMC within 14 days of the filing of a defence then the claimant has 28 days to apply for a date to be fixed for a case management conference. If the Claimant fails to so apply then the claim will be struck out.
The general rule under the CPR is that a party (or where that party is a company, a person who is in a position to represent its interests) must attend the CMC.
The CMC does not take place in ‘open’ Court and more closely resembles (as the name suggests) a conference between the parties, their attorneys-at-law and the Judge rather than a formal hearing. Notwithstanding this, the Judge is empowered to make a wide range of orders at the CMC and will typically fix timetables for the progress of the case, make directions for the disclosure and inspection of documents or filing of Witness Statements and/or hear and determine any applications made by the parties.
Each party is required under the CPR to ‘disclose’ (by the filing of a ‘List of Documents’) all documents that are or have been in his control which are directly relevant to the action. This includes not only documents on which that party intends to rely, but also documents that tend to adversely affect his case and/or support the other party’s case. Either party can inspect and take copies of the documents listed in the other party’s List of Documents. Certain documents, including communications between a party and his legal advisor, are privileged from production.
The general practice under the CPR is for parties to file ‘Witness Statements’ (statements made by their intended witnesses of the evidence that they intend to give at trial) prior to the trial of the matter. This is intended to enable each party to assess the strength of the other party’s case and to reduce the time that the actual trial takes. A Witness Statement (once put into evidence at trial) stands as that witness’ evidence ‘in chief’ and avoids him having to give oral testimony of same, although he may still be cross-examined by the other party’s attorney. A witness is allowed to ‘amplify’ his witness statement at trial but cannot give evidence of new matters unless they arose after the Witness Statement was filed. Where an order for the filing of Witness Statements has not been complied with, the relevant witness cannot give evidence at trial.
Prior to trial, the parties may also agree on and file a bundle of the documents which they intend to use at the trial as well as statements of the facts and issues in dispute between them. A Judge may schedule a ‘Pre-Trial’ Review hearing before trial in order to ensure that all pre-trial directions have been complied with.
Civil trials are heard by a single Judge without a jury. In general, the Claimant will present his case (including the evidence of his witnesses) first, followed by the Defendant. After each party presents its case oral submissions may be made unless the Court directs that submissions be made in writing. Once all the evidence and submissions have been given, the case is closed. Judgment is given either immediately or “reserved” to a later date.
The general rule is that an unsuccessful party will be ordered to pay the reasonable legal costs incurred by the successful party. However, the costs which a successful party can recover will not necessarily be the same as the legal fees paid. The default position under the CPR is that the costs to which a successful party is entitled will be calculated on a sliding scale of fixed percentages of the total value of the claim. Alternatively, the parties may apply for a costs budget to be set.
Appeals from decisions of the High Court lie to the Court of Appeal, while decisions of the Court of Appeal can be appealed to the Judicial Committee of the Privy Council.
In cases where a Defendant has no or no arguable defence to a claim, it may be possible to obtain a judgment against him relatively quickly and cost effectively and without a full trial.
Where a Defendant has been served with the Claim Form and Statement of Case but fails to file an Appearance and/or Defence within the time stipulated for doing so, the Claimant can, and in most cases does, obtain a default judgment against him. An application for default judgment is made in writing to the Registrar of the Supreme Court and does not require a hearing.
A Defendant who has had judgment in default entered against him may apply to the Court to have it set aside where he can show that he had a realistic prospect of successfully defending the claim, provided that the application is made as soon as reasonably practicable after he finds out that default judgment has been entered against him.
A party can apply to the Court for summary judgment on the whole or part of the claim where he can show that the other party to the action has no realistic prospects of success.
The Courts may in appropriate circumstances grant urgent interim relief in the form of injunctions, freezing injunctions and/or search orders before a trial occurs, where it can be demonstrated that such relief is necessary. In many cases, the grant of such interim relief effectively decides the outcome of the dispute or results in a negotiated settlement.
In certain circumstances, a Court may be prepared to grant an injunction before trial restraining a party from doing something (a prohibitory injunction) or commanding them to do something (a mandatory injunction).
A Court would, in general, only grant an injunction if satisfied that the harm likely to be suffered by the claimant without the injunction is greater (in both likelihood and extent) than the harm that would be suffered by the defendant if it were granted. In making this assessment the Court will consider the strength of the Claimant’s case and his likelihood of success at trial, the severity of the harm that each party would suffer and the extent to which monetary damages would be adequate compensation for such harm. It is important that the application for the injunction be made as expeditiously as possible as delay tends to be a factor weighing against the Court’s granting of such relief.
Injunctions can be granted ex parte (i.e. in the absence of the other party) in suitably urgent cases. Such injunctions are usually granted for a short interim period until the other party has the opportunity to appear before the Court and explain its reasons, if any, for contending that the injunction should not be continued until trial. A party that applies for an ex parte injunction must fully disclose all material facts and provide an undertaking to satisfy any claim for damages suffered by the other party that may have resulted from the injunction should it subsequently be shown that the injunction ought not to have been granted.
A Defendant may attempt to dispose of his assets before trial so as to prevent any judgment obtained against him from being enforced (as he would have no assets out of which to satisfy the judgment debt). A Freezing Injunction is designed to prevent this from happening by prohibiting the defendant from dealing with his assets or removing them from the jurisdiction. Because the Freezing Injunction represents a significant restriction on the defendant’s rights (effectively denying him access to his own assets) it will only be granted if certain conditions are fulfilled.
The Claimant must:
A Defendant that is being or is about to be sued may attempt to destroy evidence that can be used against him. A Search Order is designed to prevent this from happening by compelling the Defendant to allow the Claimant to enter into his premises to search for, inspect and remove documentary and other evidence with a view to ensuring its preservation until trial. This type of order is obtained “in camera” (in the absence of the public) and without the other side being present. It is of particular significance in copyright and passing off actions.
Because of the draconian nature of the Search Order, it will only be granted if the Claimant meets certain pre-conditions. The Claimant must:
Additionally, the party seeking such an order must also ensure that it contains all proper safeguards for the absent party including, for example, an undertaking that the order (together with the material on which it was granted) will be served on the defendant by an independent Attorney who will explain the terms of the order to the defendant and advise him to seek immediate advice.
In Trinidad and Tobago where litigation is necessary to protect a party’s interests, the Trinidad & Tobago Courts provide an independent and impartial forum for the just resolution of commercial disputes, as well as a modern procedural system that caters for the grant of appropriate interim relief.