Rosalyn Brown v Cotswold Group Ltd
| Jurisdiction | Bahamas |
| Judge | Madam Justice Carla D. Card-Stubbs |
| Judgment Date | 22 January 2024 |
| Docket Number | Claim No. 2018/GEN/GLE/01042 |
| Court | Supreme Court (Bahamas) |
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The Honorable Madam Justice Carla D. Card-Stubbs
Claim No. 2018/GEN/GLE/01042
IN THE SUPREME COURT
Common Law and Equity Division
Practice and Procedure — Application for witness to give evidence by video link — Part 29.3 of The Supreme Court Civil Procedure Rules, 2022 (as amended) — Part 1.1. — Overriding Objective, The Supreme Court Civil Procedure Rules, 2022 (as amended)
Michael Scott, KC with Ms. Marnique D.C. Knowles of Counsel for the Claimant
Mr. Roger Forde KC with Mr. Byran Woodside of Counsel for the Defendants
The Defendants have sought leave pursuant to Part 29.3 of The Supreme Court Civil Procedure Rules, 2022 (as amended) (“CPR”) for one of their witnesses to give evidence by video link or otherwise, remotely. For the reasons that follow, the application is refused. This application was heard and determined pursuant to the Court's powers under Part 26.1(n) CPR to deal with a matter on written representations submitted by the parties.
The filed action is an action for breach of contract. The Claimant's claim filed by way of Writ of Summons and Statement of Claim on September 11, 2018, and as amended by an Amended Statement of Claim filed January 21, 2022 is essentially for the payment of commission said to be due under “a catena of agreements” between the Claimant and the Defendants providing for the Claimant to carry out certain work for them. The Claimant is also seeking an account of referrals of clients to the First and Second Defendants by the Claimant.
Each Defendant filed and entered its own Defence. For these purposes, it is not necessary to reproduce the details of the specific Defence of each Defendant. In summary, the Defendants denied entering into the agreements as alleged. As alternative Defences to the action, the Defendants contend that, for various reasons, the alleged agreements are unenforceable as against them. The Fourth Defendant also filed a Counter-Claim for return of monies paid.
The first issue joined between the parties concerns the very existence of an agreement between them. This addresses the question of liability and may be phrased in the following terms: (i) Whether there was a binding agreement or, styled another way, a valid and enforceable contract between the Claimant and the several or any of the Defendants and, if so, (ii) whether there was a breach of that agreement by any or all of the Defendants.
On June 8, 2023, at a Case Management Conference, the parties sought and agreed to a bifurcated trial. Trial on the preliminary issue of liability was set to be heard for 3 days, viz, January 23, 24 and 25, 2024. This Court's directions included a direction on the mode of trial that it was to be “by way of an in-person hearing”.
The parties each identified 2 witnesses and were to file witness statements accordingly.
By Notice of Application filed on December 7, 2023 the Defendants, “jointly and severally”, sought leave to have one of their witnesses, Ian Towell, give his evidence by video link or other remote means “without being present in the courtroom”. This was supported by an affidavit of Mr. Towell.
The Application was opposed by the Claimant who filed an affidavit in response to the application for the evidence to be given remotely.
The main grounds advanced by the Defendants in the application are that Mr. Towell, a key witness for the Defendants, resides in the United Kingdom, has prearranged business commitments and would not be able to attend in person. The Defendants submit that a witness statement had been filed and that the Claimant would suffer no prejudice. They further submit that it would be prejudicial to the Defendants if their key witness were not present at trial and that it would be “inconsistent with the Overriding Objective which provides for a fair and economic disposal of the matter”.
On this point, Ian Towell avers in his affidavit as follows.
7. In pursuance of the said Order, on the 20 October, 2023 I filed a Witness Statement on behalf of the Defendants.
8. I have been advised by Counsel for the Defendants and verily believe that the trial of this matter is to take place on the dates of the 23rd, 24th & 25th of January, 2024 at the Supreme Court of The Bahamas in New Providence before The Honourable Madam Justice Carla Card-Stubbs.
9. As a result of certain pre-arranged business commitments, I will be unable to attend the hearing in person on the said dates mentioned in 8 above to give oral evidence.
10. I have been advised by Counsel for the Defendants, and verily believe that in order for me to give evidence via video link or Zoom permission is required.
11. I have been advised by Counsel for the Defendants and verily believe that in the event that permission is granted for me to give my evidence via video line [sic] or some other means, it would greatly assist the Court and will not increase the cost of the proceedings. In the event I am unable to give evidence, then the Defendants will be prejudiced in that my evidence is in support of the Defences of the Defendants.
12. I have been advised by Counsel and verily believe that the use of video link or some other means for allowing me to give evidence will provide cost saving and will likely be beneficial to the court for its efficient, fair and economic disposal of the litigation in this matter.
The Defendants ground their application on Part 29, Rule 29.3 CPR which provides for the court to allow a witness to give evidence by video link.
The Defendants rely on the case of Garet O Finlayson and Mark Finlayson v. Caterpillar Financial Services Corporation and KURC Limited, SCCIV App. No. 97 of 2020 in support of the Court's discretion to order a remote hearing so long as the discretion is exercised reasonably and judicially and in the interest of justice.
The Claimant opposes the application on several grounds. Firstly, the Claimant points to the failure of the Defendants to serve the Notice of the Application in a timely manner. Given this Court's ruling on the Defendant's application, and taking into account the power of the Court to rectify matters and to abridge time (Part 26 CPR), it is not necessary to deal with this submission.
In relation to the substantive grounds, the Claimant submits that there is no compelling reason for Mr. Towell to give evidence by video link. The Claimant submits that the witness had over 6 months to put his business in order to attend trial and that Defence Counsel ought to have dealt with any conflicts with the trial date in a timely manner. The Claimant further submits that she will be prejudiced if the witness were to be allowed to give evidence remotely since the Claimant wishes to cross-examine the witness extensively on his witness statement. The Claimant submits that to allow the witness to give evidence electronically “would jaundice the ability of the Court to make findings on the credibility of Mr. Towell which would be better afforded the court if the witness was present in person.”
In support of this point, Rosalyn Brown, Claimant, avers in her affidavit as follows.
6. Additionally, I have been advised by Counsel that to allow Mr. Towell to give his evidence by video link when all other witnesses are giving their evidence in Court before the Judge puts me at an extreme disadvantage as this case is likely to turn on the evidence and findings of fact to be made by the trial judge. To deny me the right to cross examine Mr. Towell in person in the presence of the Judge impacts me because it will impact the ability of the Judge to assess his credibility as a witness. I feel very strongly about this issue as my rights may be affected negatively due solely to the convenience of a witness and the inability of the Defendant to properly plan for this trial.
The Claimant relies on the cases of Gubarev and another v Orbis Business Intelligence Ltd and another [2020] EWHC 2167 (QB) and Jackson v Hayes & Jarvis (Travel) Ltd [2022] EWHC 453 (QB) in support of the submission that a remote hearing would impact the Court's assessment of the Defence witness.
The Court has wide powers aimed at managing its process and moving matters to resolution in a just, expeditious, fair and cost-proportionate way. One such power is the power to control the nature of the evidence and the mode in which it is taken at trial. Specifically, Part 29 CPR provides, in part:
29.1 Power of Court to control evidence
The Court may control the evidence to be given at any trial or hearing by giving appropriate directions, at a case management conference or by other means, as to the —
(a) issues on which it requires evidence; and
(b) way in which any matter is to be proved.
29.2 Evidence at trial – general rule
(1) Any fact which needs to be proved by evidence of witnesses is to be proved at —
(a) trial, by their oral evidence given in public ….
……
29.3 Evidence by video link or other means
The Court may allow a witness to give evidence without being present in the courtroom, through a video link or by any other means.
The Court has a duty to manage cases actively and this includes the appropriate employment of available technology.
PART 25 – CASE MANAGEMENT – THE OBJECTIVE
25.1 Court's duty actively to manage cases.
The Court must further the overriding objective by actively managing cases including —
….
(m) making appropriate use of technology.
In exercising its discretion in these matters, the Court must bear in mind the Overriding Objective...
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