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[1] On November 7, 2005, we heard this appeal
from a decision of the Court of Appeal of Barbados. It was the first appeal
heard by this Court. The Court of Appeal had dismissed an appeal against an
order made by Husbands J. striking out the Amended Defence of the appellant
in an action for defamation, on the ground of the appellant's failure to
comply with an order for the discovery of documents. At the conclusion of
the hearing we allowed the appeal and made an order substantially restoring
the Amended Defence. We promised to give our reasons in writing later, and
we proceed to do so now.
[2] Although this case has not yet reached trial, it has a long history,
commencing with the filing of the writ by the respondents on December 28,
1990, some 15 years ago. In this action the respondents are seeking to
recover damages from the appellant for playing on the appellant's radio
station 'The Voice of Barbados' three calypsos alleged to be defamatory of
them. The first two respondents are husband and wife and they comprise the
board of the third respondent which carried on the business of raising,
slaughtering, processing and selling chickens. The offending calypsos were
entitled respectively "The Madd Chicken Song", "Pluck It" and "Tit for Tat".
The common theme in all three is a complaint about the processing and sale
to the public of diseased chickens. The Statement of Claim alleges that
these calypsos identified the respondents as the persons responsible and
were frequently played during the months of June and July 1989, the period
of the annual Crop-Over festival. It is also the respondents' case that
these calypsos were broadcast live by the appellant when they were sung on
the 28th July and 4th August, 1989 at the semi-finals and finals
respectively of the calypso competition known as "Pic-o-de-Crop" held in
conjunction with Crop-Over. It was alleged that the calypsos continued to be
played, though less frequently, on the Voice of Barbados up to the date of
the writ.
[3] The Defence which was twice amended, was in its final form limited
substantially to a plea of justification i.e. truth, although certain
allegations contained in the Statement of Claim were either not admitted or
denied. Thus the appellant did not admit (a) that the appellant published
the calypsos or (b) that the calypsos were defamatory, and denied that the
calypsos referred to the respondents. The Defence at one stage included a
plea of qualified privilege but this defence was struck out on February 11,
1992, by order of Williams CJ.
OBJECTION TO JURISDICTION
[4] We granted the appellant special leave to appeal to this Court on August
9, 2005. Even after Barbados gained its independence, appeals from its Court
of Appeal continued to lie to the Judicial Committee of the Privy Council ("the
JCPC") but the JCPC was replaced by the Caribbean Court of Justice as the
final court of appeal for Barbados by two Acts passed by the Barbados
Parliament, namely the Caribbean Court of Justice Act, 2003, and the
Constitution (Amendment) Act, 2003, both of which were brought into force by
Proclamation on April 8, 2005. The strike out order which is under challenge
in this appeal, was made by Husbands J. on November 24, 1999, and the
decision of the Court of Appeal affirming that order, was made on August 20,
2004. A day or two before we heard this appeal the respondents filed and
served on the appellant a notice of objection to the jurisdiction of the
Court to entertain the appeal. Now, when the application for special leave
was being heard by us, we invited counsel for the respondents (who also
appeared before us with a leader on the substantive appeal) to address us on
whether this Court had jurisdiction to entertain the proposed appeal. That
invitation was not accepted and no argument was advanced by counsel for the
respondents on this issue. In delivering the reasons of the Court for
granting special leave to appeal, I dealt with the question of jurisdiction
and explained why this Court concluded that it had jurisdiction in the
matter. One reason which the Court gave, was the clear intention shown in
the transitional provisions in both Acts just mentioned that the
substitution of a right of appeal to this Court in place of the previous
right of appeal to the JCPC, should apply to pending proceedings except in
the circumstances spelt out in the transitional provisions themselves. The
grounds of objection to the jurisdiction set out in the notice belatedly
filed by the respondents, contained nothing to suggest a counter to what
appears to be an unavoidable inference from these transitional provisions.
In the circumstances, we saw no justification for allowing the respondents
to re-open an issue already decided by the Court, and we did not permit
counsel to pursue the objection.
THE BACKGROUND TO THE STRIKE OUT ORDER
[5] It is necessary now to recount the events that led to the making of the
strike out order. The first step was the making of an order on July 7, 1992,
requiring the parties to file lists of documents and verifying affidavits
within 42 days. There was no attempt by either side to comply with this
order for more than a year. Eventually, the respondents filed their list of
documents and verifying affidavit on September 15, 1993, and the appellant (prodded
into action no doubt by the filing of an application to strike out the
Defence for non-compliance) filed its list of documents and verifying
affidavit on November 23, 1993. There followed another period of inaction so
far as discovery of documents was concerned, until the respondents applied
by summons dated October 12, 1994, for an order inter alia that the
appellant file a further and better list of documents. The basis of this
application was provided by an affidavit made by the first respondent on
October 12, 1994 ("the first respondent's October 1994 affidavit"). In its
list of documents the appellant had listed in Schedule l as documents which
were then in its possession, custody or power, a record of "The Madd Chicken
Song", a record of "Pluck It", a tape of "Tit for Tat" and some 13 items of
correspondence. In Schedule 2, which was supposed to contain relevant
documents which had once been but were no longer in the possession, custody
or power of the appellant, all that appeared was the word "None". In her
affidavit the first respondent complained that the appellant had not
disclosed a number of relevant documents, firstly, audio tapes of the three
calypsos complained of, in particular tapes of the live broadcasts made of
the calypso competition; secondly, library, computer or other records
showing when the calypsos were played on the Voice of Barbados, and thirdly,
what were described as "logger tapes in relation to the calypsos played on
its radios" (sic). It was common ground that for purposes of discovery tapes
and records are considered documents. Because of the omission of these
documents from the appellant's list, it was contended that the appellant had
made insufficient discovery and should be ordered to file a further and
better list of documents supported by a verifying affidavit.
[6] It should be explained that at about this time there was a hiatus in the
legal representation of the appellant. It appears that in September, 1994,
senior counsel who had been acting for the appellant, was appointed Attorney
General of Barbados and for reasons which are not clear but for which no one
has sought to blame the appellant, there was considerable delay in the
engagement of a suitable replacement. This presumably was the reason why
when Williams C.J. heard the respondents' application for further and better
discovery on November 24, 1994, and ordered that the appellant do within
fourteen days file a further and better list of documents and verifying
affidavit, there was no appearance by or on behalf of the appellant. It
probably also explains why there was no attempt by the appellant either to
comply with or to challenge that order. As a result of this lack of response,
a further application was filed by the respondents on December 30, 1994,
seeking an unless order pursuant to Order 24 Rule 16, that is, an order that
the Amended Defence be struck out and judgment entered for the respondents
if the appellant did not file a further and better list of documents and
verifying affidavit within a specified time.
[7] On the hearing of that application before Williams C.J. the appellant
was represented by a then newly admitted attorney-at-law. On February 20,
1995, the Chief Justice ordered that unless the appellant filed on or before
March 6 1995, a further and better list of documents and a verifying
affidavit, the Amended Defence should be struck out and judgment entered for
the respondents for damages to be assessed and costs. Again, there was no
appeal against this order and on March 1, 1995, the appellant filed and
served what was claimed to be a further and better list of documents
supported by a verifying affidavit purportedly in compliance with the unless
order made by the Chief Justice. The further and better list of documents
was a replica of the original list with two variations. One was the addition
of four items of correspondence passing between the parties' attorneys which
were of absolutely no significance. The other variation was that whereas the
original list had included in Schedule l as a document in the possession of
the appellant, 'a tape of "Tit for Tat"', the new list replaced this with 'a
record of "Tit for Tat" '. The verifying affidavit sworn by Victor Fernandes,
the Managing Director of the appellant, stated baldly that the mention in
Schedule l of the original list of a "tape of 'Tit for Tat' " was "through
error or inadvertence".
[8] The respondents' attorneys took the view that this new list did not
constitute compliance with the unless order and on March 13, 1995, they
filed an application to strike out the Amended Defence and for leave to
enter judgment for damages and costs. Shortly thereafter the appellant
retained Mr. Henry Forde Q.C., and he has since then represented the
appellant in these proceedings. Unfortunately, due to the unavailability of
Mr. Forde, at least three dates fixed for the hearing of this application
were not kept and the consequent adjournments resulted in a delay of nearly
a year before the hearing eventually began before Husbands J. It was
completed in September, 1996. Judgment was reserved and was eventually
delivered on November 24, 1999, that is, some three years later, when
Husbands J. ordered the Amended Defence to be struck out and judgment to be
entered for the respondents for damages to be assessed and costs. The
appellant applied to the Court of Appeal for leave to appeal. Leave was
granted and the appeal was heard on July 17, 2000. The Court of Appeal
reserved judgment and did not deliver it until August 20, 2004, when it
dismissed the appeal and affirmed the order of Husbands J.
THE ORDERS FOR A FURTHER AND BETTER LIST OF DOCUMENTS
[9] Before examining the respective judgments of Husbands J. and the Court
of Appeal, it is necessary to refer to certain criticisms that were made by
counsel for the appellant of the two orders made by Williams C.J., that is,
the order for a further and better list of documents made on November 24,
1994 and the unless order made on February 20, 1995. One of these criticisms
was that these orders were made in breach of a well-established rule that a
statement by a party that he has disclosed in his list of documents all
relevant documents that are or have ever been in his possession, custody or
power, is at an interlocutory stage at least, conclusive and not susceptible
of contradiction or challenge. There is good reason for this rule and we
must not be understood to be casting any doubt on it. Apart from the
undesirability of generating additional costs and delay by embarking upon a
full-scale trial of factual issues in advance of the trial proper, injustice
may well result from one party or his witnesses having to go to trial with
their credibility damaged by an adverse finding made on incomplete evidence.
The only exception to this rule in the context of general discovery is where
something emanating from the party making discovery points to the existence
of some undisclosed but relevant document being, or having at one time been,
in that party's possession, custody or power. The pointer may be found in
the party's list of documents itself, or in one of the documents disclosed
in that list or in an admission made in a pleading or otherwise. It was
argued that insofar as the two orders of Williams C.J. were based on
affidavits that sought to go behind and to contradict the verifying
affidavit sworn by Victor Fernandes in support of the appellant's original
list of documents, those affidavits were inadmissible and the orders wrongly
made.
[10] It was also argued that if the respondents wished to allege that there
were specific documents or categories of documents then or previously in the
appellant's possession, custody or power, which it ought to have but had not
disclosed, then application should have been made for specific discovery
under Order 24 rule 7, and not for a further and better list of documents.
It was also suggested that the orders of the Chief Justice lacked the
specificity which was an essential requirement if non-compliance was to be
visited with so extreme a sanction as striking out. The orders contained no
indication of the respects in which the original list of documents was
defective and therefore they lacked the specificity needed to support the
sanction imposed.
[11] The trouble with these arguments is that they come too late. They
should have been deployed when the first application for a further and
better list was heard, but at that hearing there was no appearance by or for
the appellant. A further and better list having been ordered, there was (as
already indicated) no appeal against that order nor any application to set
it aside. The order it appears, was simply ignored. Predictably this
prompted the application for the unless order which, it would appear, was
made without any significant opposition and was not challenged by an appeal.
The judgment of Arden L.J. in Stolzenberg and others v. CIBC Mellon Trust Co.
Ltd and others [2004] EWCA Civ. 827 contains some passages which demonstrate
the need to focus on the strike out order made by Husbands J. (which is the
subject of this appeal) and refuse to entertain any challenge of the
antecedent orders of the Chief Justice. In Stolzenberg the English Court of
Appeal was asked inter alia to hold that the refusal of Etherton J. to set
aside a judgment obtained for breach of an unless order was a wrongful
exercise of his discretion. The unless order had been made by Rattee J.
following non-compliance by the appellants with an earlier order of Lightman
J. Arden L.J. said at para.176:
"It was argued before the judge that there was no good reason to require [the
Appellants] to produce a statement of assets. The judge was in effect asked
to review the order of Lightman J. In my judgment, as the judge was not
sitting on an appeal from that order, he should not have been asked to
approach the matter in that way. It was relevant to ask what effect
non-compliance with it had on the respondents, but it was inappropriate to
question whether the order should ever have been made. ... Likewise, it was
inappropriate to enquire whether it was proportionate for Rattee J to make
an unless order to enforce compliance with the orders of Ligthman J . . If
the appellants had wished to argue that, they had the opportunity to appeal
against the order of Rattee J but failed to take it".
[12] We hold therefore that the appellant cannot now challenge the validity
and binding force of the unless order. Nor can it be disputed that the duty
of the appellant was to comply with it.
THE MAIN ISSUES
[13] This takes us to the first of the two main issues in this case which
are:
(1) Was there a failure to comply with the terms of the unless order? and
(2) if there was, was the making of the strike out order a proper exercise
of the Judge's discretion?
THE FIRST ISSUE: WAS THERE COMPLIANCE WITH THE UNLESS ORDER?
[14] In relation to the issue of compliance with the unless order, the
appellant is entitled to rely on the arguments outlined above with respect
to (a) the lack of specificity in the unless order and (b) the
conclusiveness of the further and better list and verifying affidavit. It is
not clear whether the argument with regard to specificity was made in the
courts below but be that as it may, we must consider it. As already stated,
this argument cannot now provide a basis for quashing the order on the
ground that it should never have been made. The question, however, which
remains a live one, is whether the appellant knew what it had to do in order
to comply with the order. The order itself made it clear that the appellant
was required to remedy some alleged deficiency in its first list of
documents. What that alleged deficiency was, was apparent from the first
respondent's October, 1994, affidavit. If the appellant had or had ever had
in its possession, custody or power any documents of the kinds described in
that affidavit, then it would have been quite clear to the appellant that
they should be included in the further and better list of documents which it
had been ordered to file. It does not help the appellant that that affidavit
might have been held inadmissible had objection to it been taken at the
appropriate time. The first respondent's October 1994 affidavit was on the
record and was read by the Chief Justice before making his first order, a
fact which is recorded in the order itself. In that affidavit the first
respondent identified the three categories of documents already mentioned
which she alleged were or should have been in the appellant's possession and
which it had not disclosed. This affidavit was specifically referred to by
then counsel for the respondents, Mr. Peter Williams Q.C., in the affidavit
which he swore in support of the application for the unless order. If
therefore the appellant in fact had, or had at any time had, in its
possession, any document of a type described in the first respondent's
October 1994 affidavit, then the appellant could not be heard to say that it
did not understand that it was required to disclose that document in its
further and better list of documents, or excuse its failure to do so on that
ground.
[15] In an affidavit sworn by the appellant's Managing Director Victor
Fernandes, on November 28, 1995, and filed in opposition to the application
for the strike out order, it was claimed that the filing of the further and
better list of documents and the verifying affidavit on March 1, 1995,
constituted compliance with the unless order and objection was taken to
those paragraphs of the affidavit of the first respondent made on March 13,
1995, in support of the summons for the strike out order, which repeated the
allegations contained in the first respondent's October 1994 affidavit as to
the three categories of documents which the appellant had or "should have
had" in its possession. The ground of that objection as stated in Mr.
Fernandes' affidavit, was that "they seek to show that the statements in the
defendant's further and better list of documents are untrue and/or to
contradict the same". In the same affidavit Mr. Fernandes went on
nevertheless to answer the allegations of undisclosed documents. Before
doing so, however, Mr. Fernandes sought to preserve the objection based on
the conclusiveness of the further and better list and his verifying
affidavit by stating in paragraph 11:
"These statements which are deposed to by me in paragraphs 12.1 to 17
inclusive are being made without waiver of the Defendant's strict rights and
the Defendant will seek leave to rely on and use them only in the event that
this Court does not accept the contentions hereinbefore advanced, since the
defendant has been advised by its Attorneys-at-Law and I verily believe that
paragraphs 7 to 26 inclusive of the first plaintiff's first affidavit should
be struck out for the reasons hereinbefore set out."
[16] The first respondent made an affidavit dated January 10, 1996, in
response to the affidavit of Mr. Fernandes and that provoked a further
affidavit from Mr. Fernandes dated January 31, 1996. In that second
affidavit, which contains no fresh reservation of the appellant's right to
stand on its preliminary objection, Mr. Fernandes returned to the factual
issues as to what tapes and other records had been made of the appellant's
broadcasts of the three calypsos. It does not appear that on the hearing of
the summons to strike out any application was made to strike out the
paragraphs of the affidavit of the first respondent that were objected to.
Certainly none was alluded to in the judgment of Husbands J. In any event it
does not seem to us that the appellant having chosen to put before the Court
the factual material contained in Mr. Fernandes's affidavits with regard to
the existence of tapes and other records, can deny the Court the right to
take account of any admissions which that evidence contains on the ground
that it was only putting forward that evidence conditionally i.e. if its
preliminary contention failed. I agree with the appellant's contention
insofar as it claimed to exclude any evidence from the respondents which
contradicted the statement in the verifying affidavit that there were no
other relevant documents apart from those in the schedules to the further
and better list, which were or had ever been in the appellant's possession,
custody or power. But if the appellant chose (as it did) to raise a second
line of defence by having Mr. Fernandes deal with the facts, the Judge was
entitled (and so are we) to take account of any admission made by him with
regard to the existence of undisclosed documents. No privilege can be
claimed for such admissions merely because they were introduced by some
version of the "without prejudice" formula. In a roughly analogous situation,
a defendant who wishes in a civil trial to make a 'no case' submission must
elect between doing so and calling evidence. He cannot do both.
[17] I turn therefore to the substantive question whether on the material
before the learned trial Judge he was entitled to hold that the appellant
had failed to comply with the unless order of the Chief Justice. More
specifically the question is whether the appellant on its own admission had,
or had ever had, in its possession, custody or power any of the documents
mentioned in the first respondent's October 1994 affidavit.
[18] Remarkably, in the judgment of Husbands J. this question is not
addressed. The learned Judge appears simply to have assumed that there was
non-compliance without giving any indication of how he reached that
conclusion.
[19] The Court of Appeal did examine the affidavit evidence in order to
determine whether there had been a failure to comply with the unless order.
The Court found that there had been non-compliance in two respects. Firstly,
the Court held that on Mr. Fernandes' own admission the appellant had at one
time in its possession log tapes or master tapes on which were recorded the
whole of what was broadcast each day on the "Voice of Barbados". The master
tapes for the two months prior to Crop-Over 1989 would have recorded the
three calypsos complained of whenever they were played on that station
during that period. Even if (as the Court of Appeal appears to have accepted)
these master tapes were no longer available because they had been recycled
or destroyed, they ought to have been included in Schedule 2 to the
appellant's further and better list of documents as documents which had once
been but were no longer in the possession of the appellant.
[20] This was clearly a correct finding based on Mr. Fernandes' own
affidavits. These master tapes or 'logger tapes' as they were called by the
first respondent, were identified in the first respondent's October 1994
affidavit as one of the categories of documents which the appellant had
failed to disclose in its original list of documents. The way in which Mr.
Fernandes dealt with them in his first affidavit was somewhat disingenuous.
In paragraph 14 (ix) of that affidavit he disposed of them in this way:
"… Such logger tapes as the Defendant had made or does make were or are not
relevant to the matters in question in this action because:-
(a) the only labels on logger tapes were and are the numbers 1-60 which
represent day one, two etc.;
(b) logger tapes were and are kept for two months, after which they were and
are recycled;
(c) logger tapes were and are not re-broadcast and did and will not play on
the tape machines used for broadcast purposes in the studios."
The Court of Appeal in its judgment (which was delivered by King J.A. (Actg.))
described Mr. Fernandes' affidavit as "carefully and cleverly drawn". The
passage just quoted could be described less charitably. Not only does it
avoid making the admission (subsequently made in Mr. Fernandes' second
affidavit) that master tapes were routinely made of the whole of each day's
broadcast, but the reasons given for their alleged lack of relevance are
quite specious, having nothing whatever to do with relevance. Mr. Fernandes
dealt with the matter more frankly in his second affidavit when he stated at
paragraph 4.11(i):
"… log tapes are audio tapes kept on a daily basis which reflect everything
that has been played on the station for that day."
[20] The respondent's case was that these calypsos were frequently played on
the Voice of Barbados during the two months or so preceding the 1989
Crop-Over. Admittedly it might have been a time-consuming exercise to
identify the parts of those tapes on which the calypsos were recorded, but
with the assistance of the logs which according to Mr. Fernandes were kept
of the times during which music was played on the station, it would not have
been an impossible or impractical task. Clearly, the master tapes covering
the pre- Crop-Over period in 1989 would have been relevant, and though
recycled, should have been disclosed in Schedule 2 to the original list of
documents. The reference to them in the first respondent's October 1994
affidavit would have alerted Mr. Fernandes to the need to include them in
the further and better list of documents. His failure to do so was clearly a
breach of the unless order.
[21] The other respect in which the Court of Appeal held that the appellant
had failed to comply with the unless order, was the omission from the
further and better list of documents of 'audio tapes' of the live broadcasts
of the semi-finals and finals of the Pic-O-de-Crop competition. In the case
of these tapes there was no admission by Mr. Fernandes. While he was not in
a position to deny categorically of his own knowledge that the appellant had
taped these events, he deposed that he had been unable to find any trace of
such tapes and that the persons still available who had been involved in the
live broadcasts of the semi-finals and finals of the competition, had no
recollection of any such tape being made by the appellant. Accordingly, it
was Mr. Fernandes' belief that there had never been any 'audio tape' of
those live broadcasts made by the appellant. It did emerge from his
affidavits that tapes were sometimes made by the appellant of events which
they broadcast live, but these tapes would be played on the air only for the
purpose of showing crowd reaction and would be recycled within a matter of
days at most. There was no hard evidence offered by the respondents to
establish that these shows had in fact been taped by the appellant, not that
such evidence, if offered, would have been admissible. Nevertheless, the
Court of Appeal held that the appellant had taped these live shows and
should have disclosed these tapes in its further and better list of
documents, even though these tapes had since been "recycled or otherwise
disposed of". The basis of that finding was that the Court of Appeal
considered it "very unusual and stretching credibility to accept that a
responsible broadcast organisation such as the applicant/defendant would do
a live broadcast of such significant events ... without having made a tape
or other record of the broadcast of those events". In our view the perceived
improbability of such an occurrence, unsupported as it was by any evidence
of the practice followed by the 'Voice of Barbados' or by radio stations
generally, is not a satisfactory or sufficient basis for the conclusion
reached. Further, Mr. Fernandes swore that he believed that no such tapes
had ever existed. There was no evidence whatever to contradict that
statement which should in accordance with the general principle already
referred to, have been regarded as conclusive. In fact, even though I have
examined the affidavit evidence with regard to the audio tapes issue, in the
absence of any admission subsequently made by Mr. Fernandes, the verifying
affidavit sworn by him in support of the further and better list should be
regarded as a conclusive, albeit implicit, denial that any tapes of the live
broadcasts ever existed.
[22] For all of these reasons we hold that the conclusion of the Court of
Appeal that the appellant was also in breach of the unless order by not
listing audio tapes of the two live broadcasts of the calypso competition in
Schedule 2 of its further and better list of documents, was unjustified and
cannot be supported.
[23] The argument was advanced by counsel for the respondents that this
Court, following the practice of the Judicial Committee, ought not to
interfere with concurrent findings of fact made by the lower courts in the
jurisdiction from which the appeal comes. We do not consider that that rule
has any application to findings made on an interlocutory application on
affidavit evidence which has not been subjected to cross-examination. There
would seem to be no basis in common sense for applying the rule in such a
situation and we are not aware of any instance in which it has been so
applied. In any event, we do not consider it necessary or appropriate in the
circumstances of this case to commit ourselves to adopting without
modification the practice of the Judicial Committee in regard to this matter.
DESTRUCTION OF TAPES
[24] The Court of Appeal was critical of the appellant for having destroyed
the master tapes "in view of pending litigation". They said that this was "illustrative
of the Defendant's attitude towards the Plaintiffs' request for discovery".
One must assume in the absence of any evidence to the contrary that the
relevant master tapes were in accordance with the usual practice as deposed
to by Mr. Fernandes, kept for two months and then recycled. If so, then they
would have been recycled before there was any pending litigation against the
appellant since the writ in this action was not filed until December 1990.
Nevertheless, in July 1989 the appellant's management knew that proceedings
against them were imminent as letters before action dated respectively the
11th and 13th July, 1989, in identical terms, were addressed by the
respondents' attorneys to the Manager of Voice of Barbados and the Manager
of Barbados Redifusion Service Ltd. respectively. As the letters indicated,
the respondents had already sued another party for publication of the same
calypsos. That was a reference no doubt to the action that had been launched
against the Caribbean Broadcasting Corporation. It would have been in
accordance with best practice for the appellant to have taken steps to
preserve at least the relevant parts of the master tapes of what was
broadcast during the two months or so prior to Crop-Over, 1989. Mr.
Fernandes took over as Managing Director and Chief Executive Officer at the
beginning of August, 1989, and given the delay in the commencement of these
proceedings, we find the Court of Appeal's comments on the recycling of the
master tapes, somewhat harsh.
THE COMPUTER TAPE
[25] The Court of Appeal also found it unusual "that the tape referred to
was destroyed and the record kept" and continued: "This begs the question
why was the tape destroyed?" While this is not altogether clear, the tape
referred to is presumably the tape from which music was selected and played
by a computer on the appellant's FM station YESS (see para. 14 (i) and (ii)
of Fernandes' first affidavit). This tape came to light when the respondents'
attorneys by letter dated 4th July, 1991, to the appellant's General Manager,
complained of the playing of the calypso "Pluck It" on the FM station even
after these proceedings had been launched. In his reply dated the 18th July,
1991, the appellant's then attorney explained that the calypso had been
included in an "old programme" which was being used by the computer, and
stated that it had been "forthwith excised" on his advice. We do not know
how the excision was done, whether for instance it was by erasure of the
song from the tape, or possibly by altering the instructions given to the
computer. The "record" on the other hand which the judgment of the Court of
Appeal says was kept, is presumably the vinyl record of the same song, which
had been disclosed in the appellant's list of documents. Once it is
appreciated that the selection and playing of music by the computer from the
tape was automated and did not require 'the use of manpower', one can
readily understand why the offending calypso was 'excised' (by whatever
means), while the vinyl record from which the tape was made, was kept. In
the circumstances we do not agree with the Court of Appeal's view that there
is something suspicious about the appellant 'destroying' the tape (if that
is what excision of the song involved), but retaining the record.
[26] It could be argued that the tape on which the song "Pluck It" had been
recorded for playing on the FM station, ought also to have been disclosed in
the further and better list of documents, even though no complaint was made
in the Statement of Claim about broadcasts on that station. But the failure
to include it was only a technical breach of the unless order at worst, as
the existence of the tape had in fact been disclosed to the respondents by
the letter from the appellant's attorney referred to above.
[27] To sum up our findings so far, we find that:
(a) the appellant ought to have included in Schedule 2 of its further and
better list of documents the master tapes made during the period of the
Crop-Over festival, 1989;
(b) its failure to do so constituted a breach of the unless order of the
20th February, 1995; and
(c) there is no evidence that the recycling of the master tapes was done
otherwise than innocently i.e. in accordance with the station's normal
routine and
(d) without any intention of preventing the respondents from having access
to documents that might prove useful to them in the litigation.
THE SECOND ISSUE: WAS THE DISCRETION PROPERLY EXERCISED?
[28] I pass now to the second major issue in this case, that is, whether the
order striking out the Amended Defence and giving the respondents leave to
enter judgment, was a proper exercise of the Judge's discretion under Order
24 rule 16. It would be as well to set out here the relevant portion of that
rule. It reads as follows:
"(1) If any party who is required by any of the foregoing rules, or by any
order made thereunder, to make discovery of documents . fails to comply ...
with that order, ... then, ... the Court may make such order as it thinks
just, including, in particular, an order that the action be dismissed or, as
the case may be, an order that the defence be struck out and judgment be
entered accordingly."
[29] The same approach to this issue was adopted by both Husbands J. and the
Court of Appeal. They adopted and applied what I would describe as "the
principle of contumelious breach". According to this principle, if failure
to comply with an unless order is intentional or "contumelious", then a
strike out order should issue. In order to avoid that consequence the party
in default must satisfy the Court that he was prevented by some extraneous
circumstances i.e. something beyond his control, from complying with the
order. Both the Judge and the Court of Appeal held that the appellant had
not satisfied them that it was prevented from complying with the unless
order of the Chief Justice by any extraneous circumstance, and accordingly,
the Judge made, and the Court of Appeal affirmed, the order striking out the
Amended Defence.
[30] The learned Judge referred to the case of Caribbean General Insurance
Ltd. v. Frizzell Insurance Brokers Ltd. [1994] 2 Lloyds Law Reports 32 and
quoted a passage from the judgment of Roskill L.J. in that case. He also
referred to Grand Metropolitan Nominee Company (No.2) v. Evans [1992] 1 WLR
1191. The Judge stated his conclusion in these words:-
"On review of all the authorities cited and the submissions made, the Court
came to the conclusion that the Defendant has not convinced it that its
failure to comply with the unless order of the 20th February, 1955, was
other than intentional and contumelious. Therefore, the Defendant's defence
is struck out ... ."
[31] The reasoning of the Court of Appeal was summed up in the following
sentence:
"Since no satisfactory explanation or excuse was given by the Applicant/Defendant
for a failure to comply with the order, such failure is therefore
intentional and contumelious".
The Court of Appeal also referred to the Caribbean General Insurance Ltd.
case (supra) and cited three other cases which together with those cited by
the Judge, provide firm support for the principle of contumelious breach.
These are Tolley v. Morris [1979] 1 WLR 592, Re Jokai Tea Holdings Ltd.
[1993] 1All E.R. 630 and Hytec Information Systems v. Coventry City Council
[1997] 1 WLR 1666. The judgments in these cases are replete with passages
which emphasise the importance of securing obedience to the peremptory
orders of the Court and hold out little hope of reprieve for those
defaulters who cannot demonstrate to the satisfaction of the court that
their failure to comply was due to extraneous circumstances, and not to an
intention to ignore or flout the order of the court. It is sufficient to
quote one of those passages. It is from the judgment of Sir Nicholas
Browne-Wilkinson V-C in Re: Jokai Tea Holdings Ltd. (supra) at page 637C and
reads as follows:
"In my judgment, in cases in which the court has to decide what are the
consequences of a failure to comply with an "unless order", the relevant
question is whether such failure is intentional and contumelious. The court
should not be astute to find excuses for such failure since obedience to
orders of the court is the foundation on which its authority is founded. But
if a party can clearly demonstrate that there was no intention to ignore or
flout the order and that the failure to obey was due to extraneous
circumstances, such failure to obey is not to be treated as contumelious and
therefore does not disentitle the litigant to rights which he would
otherwise have enjoyed".
[32] But these cases do not stand alone. There is another line of cases in
which a totally different approach is taken to the making of strike out
orders pursuant to Order 24 rule 16 (1). According to those cases the
primary, if not the only, purpose for which the weapon of the strike out
order may properly be used, is to ensure the fairness of the trial and,
therefore, the test which a Judge should apply in determining whether to
make such an order, is whether as a result of the breach of the rule or
order which has been committed, a fair trial is no longer possible, or to
put the matter more exactly, there is a real risk that a fair trial will not
be possible. A corollary of this approach which conflicts sharply with the
principle of contumelious breach, is that punishment is not a legitimate
purpose to be served by the use of the strike out order. An early and
powerful proponent of this school of thought was Millett J. (as he then was)
in the case of Logicrose Ltd. v. Southend United Football Club Ltd. The
Times, March 5, 1988. In that case there was no unless order involved, but
an application was made at the trial for an order that the action be
dismissed and the Defence to Counterclaim struck out and judgment on the
Counterclaim entered for the defendants, on the ground of what was alleged
to have been a deliberate suppression of a crucial document by the principal
director and shareholder of the plaintiff. The application was refused by
Millett J. who found that the suppression of the document was not deliberate,
but held that even if it had been, he would not have made the order sought
once the missing document had been produced. He explained why in this
passage:
"The object of Order 24, Rule 16 is not to punish the offender for his
conduct but to secure the fair trial of the action in accordance with the
due process of the Court (see Husband's of Marchwood Ltd. v. Drummond Walker
Development Ltd. [1975] 2 All ER 30, [1975] 1WLR 603). The deliberate and
successful suppression of a material document is a serious abuse of the
process of the Court and may well merit the exclusion of the offender from
all other participation in the trial. The reason is that it makes the fair
trial of the action impossible to achieve and any judgment in favour of the
offender unsafe".
Earlier in his judgment the learned Judge dealt with disobedience of an
order of the Court in this way:
"Deliberate disobedience of a peremptory order for discovery is no doubt a
contempt and, if proved in accordance with the criminal standard of proof,
may, in theory at least, be visited with a fine or imprisonment. But to
debar the offender from all further part in the proceedings and to give
judgment against him accordingly is not an appropriate response by the Court
to contempt".
A little later on he said:
"In my view a litigant is not to be deprived of his right to a proper trial
as a penalty for his contempt or his defiance of the Court, but only if his
conduct has amounted to an abuse of a process of the Court which would
render any further proceedings unsatisfactory and prevent the Court from
doing justice. Before the Court takes that serious step, it needs to be
satisfied that there is a real risk of this happening."
[33] The case of Husband's of Marchwood Ltd. referred to by Millett J. in
fact does not provide authority for the proposition that a strike out order
may never be used as punishment for disobedience of an order for discovery
but only for the more limited proposition that it is not appropriate to
punish late compliance with an order for discovery by making an order for
payment of money into Court backed by the sanction of dismissal of a party's
claim. In that case the defendant had twice failed to comply with orders for
the provision of a list of documents but did provide the list albeit out of
time, before the hearing of an application for an order that he pay into
Court an amount equivalent to the balance of the sum claimed by the
plaintiff or in default be debarred from defending the action. The Court of
Appeal quashed the order made in terms of that application. In his judgment
Russell L.J. said:
"It seems to me that the condition of requiring payment of the balance into
court is something which is quite inappropriate, in the sense that it is a
punishment which does not fit the crime. The object of the plaintiffs has in
fact been achieved, because their summons has produced what they wanted,
namely, that the due processes of the action should go forward."
Stamp L.J. said:
"I think that RSC Ord 24, r 16(1), is designed to secure compliance with the
rules and orders of the court relating to discovery, and not to punish a
party for not having complied with them within the time limited for the
purpose. I think normally - there may be exceptional circumstances - that an
order which is not aimed to achieve that result is prima facie wrong ... ."
(emphasis added).
[34] The judgment of Millett J. in Logicrose was considered by the Court of
Appeal in Landauer Ltd. v. Comins & Co. The Times, August 7, 1991. In that
case the Court of Appeal upheld the striking out of a plaintiff's claim on
the ground that as a result of the destruction of certain relevant documents,
a fair trial was no longer possible. It was assumed that the destruction was
inadvertent, but Lloyd L.J. expressed some difficulty in understanding why
it should matter whether the destruction was deliberate or inadvertent if
the test was whether a fair trial could be held without the documents. The
learned Lord Justice then referred to the statement of Millett J. that it
was no part of the Courts' function in exercising its discretion under Order
24 rule 16 to punish the party in default and said:
"In all ordinary cases that must be so. But I can imagine cases of
contumacious conduct, such as the deliberate suppression of a document,
which might justify the striking out on the analogy of striking out for want
of prosecution under Order 25, rule 1(4) even if a fair trial was still
possible. I use the word "contumacious" with the encouragement of my Lord
Sir John Megaw, since it expresses the required meaning more accurately than
"contumelious", the word more commonly used and originally, I believe, used
by Diplock L.J in this connection. But cases of contumacious conduct in
relation to discovery must necessarily be extremely rare".
The term "contumelious" or "contumacious" is commonly used in the
authorities as applicable to conduct involving defiant disobedience of an
order of the Court. The example, however, which Lloyd L.J. gave of
contumacious conduct which might justify a strike out order, was the
deliberate suppression of a document, an act which might not involve, and
was not expressly linked by him to, disobedience of an order of the Court.
His judgment therefore, like many others which have followed it, does not
confront head-on the conflict between those cases in which the making of a
strike out order under Order 24 rule 16 has been justified as a response to
defiant disobedience (be it described as contumelious or contumacious) of an
order of the Court, and the principle enunciated by Millett J. that a strike
out order may never be used to punish disobedience of an order of the Court.
[35] The conflict, however, was recognised (though not resolved) by the
Court of Appeal in Artisan Scaffolding Co. v. Antique Hypermarket Ltd. (unreported
February 10, 1993). In response to counsel's submission based on the
judgment of Millett J. that a judge asked to make a strike out order should
focus on the issue of whether a fair trial was still possible, Rose L.J. in
his judgment said:
"For my part, without analysing the report in truncated form which appears
in The Times of Mr. Justice Millett's judgment in any detail, it does seem
to me that there is an expression of view there which is perhaps not wholly
in accordance with the practice of the court as I have understood it to be".
The learned Judge then quoted the passage (already quoted above) in which
Millett J. suggests that the proper way of dealing with deliberate
disobedience of an order for discovery is by contempt proceedings, and not
by an order to strike out. Rose L.J. continued:
"I, for my part, would wish to reserve consideration as to whether that is
in fact an accurate statement of the court's approach".
Rose L.J. went on to hold that the material before the trial judge was not
sufficient to establish that there had been a failure to comply with the
peremptory order and that in any event, even if there had been
non-compliance, it had not been contumelious. In a short judgment Waite L.J.
gave some useful guidance as to how a Court which is called upon to make a
strike out order, should approach its task. He said:
"There is in every case an inquiry to be made as to the degree of contumely
involved in the default, the scale of the breach, what excuse there may or
may not be for it, whether it can be remedied, how far the opposing party
has been prejudiced by it, and any other matter relevant to the very wide
discretion conferred on the court by Order 24 rule 16 to make whatever order
the justice of the case may in its particular circumstances require".
[36] This emphasis on the flexibility of the discretion to be exercised by a
court in responding to a failure to comply with a peremptory order of the
Court, is found also in the judgment of Robert Walker J. in Pereira v.
Beanlands [1996] 3 All E.R. 528. The Judge in the particular circumstances
of the case felt able to depart from the normal rule that the consequences
of a default by a litigant's solicitor should be visited on the litigant. In
setting aside the summary judgment which had been entered as a result of
non-compliance with an unless order for discovery, the learned Judge took
into account the fact that the party against whom judgment had been entered,
was not personally at fault, had replaced his delinquent solicitor, and
wished to defend the action in a fiduciary capacity. Given that the other
side did not allege any actual prejudice as a result of non-compliance with
the discovery order, the Judge held that justice required that the judgment
be set aside. In discussing what epithet was most appropriate to describe
the type of disobedience which justified the making of a strike out order,
the learned Judge suggested that "deliberate" or "defiant" was preferable to
either "contumelious" or "contumacious", as it was part of "more everyday
language". He made the important point that in responding to a failure to
comply with an unless order, a Judge should be allowed a good deal of
flexibility in the exercise of his discretion and not be expected to apply
rigidly a set of rules or follow some mechanical process. As the Judge put
it, adopting the language of counsel: "The Court must not tick boxes on a
form".
[37] The same Judge after his elevation to the Court of Appeal, returned to
the same theme in Beeforth v. Beeforth (unreported July 3, 1998). In that
case there was non-compliance with two successive orders made for specific
discovery, the second order being an unless order made by consent. No excuse
was offered for non-compliance with these orders and as a result the
pleading of the defendants who were the parties in default, was struck out
and judgment entered against them. The Court of Appeal quashed the strike
out order. Having listed some of the factors which weighed with him, Robert
Walker L.J. said:
"To put it quite simply, justice requires that this case should be tried, if
it cannot be settled. In my judgment the judge, in spite of the care with
which he evidently dealt with the matter, failed to address his mind
sufficiently to the balancing exercise that was required and to the need for
proportionality in any order which he made. That, it seems to me, entitles
this court to exercise its own discretion afresh. For my part, I consider
that the course which the Judge took, although I find it wholly
understandable, was rather too severe".
[38] In considering the more recent English cases on the use of the power to
strike out, one must bear in mind that the new Civil Procedure Rules came
into force on April 26, 1999. As a result Order 24 rule 16 no longer exists
in England. Its counterpart is CPR 3.4(2)(c), which gives the Court power to
strike out a statement of case for failure to comply with a rule, practice
direction or court order. Where an unless order is made under that rule, the
party in whose favour it is made, may if it is not complied with, obtain
judgment with costs under CPR 3.5 simply by filing a request for judgment.
The party in default who wishes to set aside such a judgment, must apply for
relief from the sanction imposed. A non-exhaustive list of the matters to be
considered by the Court in deciding whether to grant relief, is set out in
CPR 3.9. It does not appear, however, that these procedural changes have
resulted in any change in the principles governing the making or refusal of
orders the ultimate effect of which is to strike out a party's case and
cause judgment to be entered against him because of his failure to comply
with a peremptory order of the court.
[39] There are a number of other cases (to which I need not refer) in which
the English courts have applied the principle that a strike out order may,
and indeed should be made, whenever a party's failure to comply either with
the rules or with an order of the court, has rendered a fair trial no longer
possible. It is necessary, however, to make clear what is meant by a 'fair
trial' and for this purpose it is convenient to cite the following passage
from the judgment of Chadwick L.J. in Arrow Nominees Inc. v. Blackledge &
Ors. [2000] 2 BCLC 167 (at paragraph 55):
"Further, in this context, a fair trial is a trial which is conducted
without an undue expenditure of time and money; and with a proper regard to
the demands of other litigants upon the finite resources of the court. The
court does not do justice to the other parties to the proceedings in
question if it allows its process to be abused so that the real point in
issue becomes subordinated to an investigation into the effect which the
admittedly fraudulent conduct of one party in connection with the process of
litigation has had on the fairness of the trial itself".
Later in his judgment the same Judge again made it clear that the question
whether in that case the trial should have been allowed to run its course,
had to be determined by reference to whether that was fair to the innocent
party as well as in the interest of the administration of justice generally.
[40] I think I have quoted enough of the English authorities to demonstrate
that notwithstanding the dicta of Millett J. in the Logicrose case, it
remains good law that a striking out order may in appropriate circumstances
be made in response to, and in a sense, as a punishment for, the
contumelious or contumacious or defiant breach of a peremptory order of the
court. This, however, is subject to the proviso that a court which is called
upon to make such an order on this ground, must approach the matter
holistically and undertake the balancing exercise needed to ensure that
proportionality is maintained and that the punishment fits the crime.
[41] I refer as support for this proposition to the judgment of Arden L.J. (with
whom the other two members of the Court of Appeal agreed) in the case of
Stolzenberg v. CIBC Mellon Trust Co. Ltd.(supra). In that case there was an
appeal against the refusal by a Judge to grant the defendants relief from an
order which debarred them from defending the action unless they complied
with various orders including one relating to discovery, which they had
previously disobeyed. Arden L.J. in her judgment referred to a number of the
cases decided under Order 24 rule 16. She obviously considered them still
relevant despite the change of rules. She quoted with approval passages from
some of the authorities to which I have already referred e.g. the Hytec case,
in support of the following propositions:
(i) That non-compliance with an unless order particularly if intentional,
was a factor to be taken into account in determining whether a Judge should
make an order striking out a party's case; and
(ii) That the fact that the party in default could show that a fair trial
was still possible notwithstanding his default, did not necessarily mean
that a strike out order should not be made.
In connection with the first of these propositions Arden L.J. said (at
paragraph 167):
"The fact that an unless order has been made inevitably means that there is
an additional factor to consider. ... It is only a factor to be weighed in
the balance. Moreover, compliance with orders of the court is not a question
of judicial amour propre. It goes to the essence of the rule of law that
parties subject to the court's jurisdiction ... should comply with the
court's orders. The gravity of the matter of non-compliance is plainly
increased where the non- compliance results from a conscious decision as in
this case. It follows, as Ward L.J. said in Hytec Information Systems Ltd. v.
Coventry City Council (1997) 1WLR 1666 at 1674 to 1675, that "If a party
intentionally or deliberately ... flouts the order, he can expect no mercy".
He has to persuade the court that in all the circumstances the injustice to
him outweighs the interest of the administration of justice and the injury
to the other party."
In relation to the second proposition she said (at paragraph 171):
"The fact that a fair trial is possible does not mean that relief from
sanctions should follow".
She then preceded to quote a passage from the judgment of Mance L.J. in
Hansom v. Makin [2003] EWCA Civ 1801, a case decided with reference to the
application of CPR 3.9. Part of the passage she quoted reads:
"But it does not follow that, where a fair trial is still possible, relief
will necessarily be granted. CPR 3.9 deals generally with relief from
sanctions imposed for failure to comply with a rule, practice direction or
court order. It could not be the case that, whenever such a sanction had
been imposed, and however flagrant or persistent the failure, the defaulting
party could have it set aside by showing that a fair trial was still
possible ...".
We regard this statement as equally valid if applied mutatis mutandis to the
exercise of the discretion to strike out under Order 24 rule 16. On the
other hand, it is equally good law that if a fair trial (in the broad sence
explained above) is not possible as a result of the breach of an unless
order, 'cadit quaestio' - the strike out order must issue.
[42] The last but by no means least of the authorities to which I will refer,
is the decision of the Barbados Court of Appeal in Caribbean Broadcasting
Corporation v. Mirchandani and Ors .(2000) 59 WIR 57. That action had many
affinities with these proceedings. It was a claim in libel brought by the
same plaintiffs against the corporation which carried a live telecast of the
'Pic-O-de-Crop' finals from the National Stadium on the 4th August, 1989. I
refer to the judgment delivered by Williams C.J. when the matter came before
the Court of Appeal for the second time. This was on an application by the
defendant/appellant for a review of the order previously made by the Court
of Appeal striking out certain paragraphs of the Defence for failure to
comply with an order to produce a videotape which the defendant had
disclosed in its list of documents as one of those in its possession, power
or custody. The ground of the application for review was simple. The
inclusion of the videotape in the affidavit of documents was the result of a
misunderstanding by the defendant's attorney-at-law of his instructions.
There was sworn and incontestable evidence that in fact no such videotape
had ever existed. The Court of Appeal, not surprisingly, concluded that the
application should succeed and quashed the earlier order to strike out. In
giving the judgment of the court, Williams C.J. quoted passages from the
judgments of Stamp L.J. in the Husband's of Marchwood case, Millett J. in
the Logicrose case and Lloyd L.J. in Landauer Ltd. v. Comins & Co. All three
passages quoted made the point that Order 24 rule 16 is not intended to be
used as a punishment for disobedience to the orders of the Court.
Notwithstanding this, the learned Chief Justice thought it necessary to make
the point that:
"It was not a case of contumacious conduct by CBC in not producing the tape.
It never had the tape."
The judgment thus reflects the ambivalence created by the two separate
streams of English authorities.
[43] The common sense reasoning which underlay the decision was explained by
the Chief Justice in the following passage:
"Had it been known in the initial stages of the proceedings that CBC had no
tape of the televised broadcast, the respondent would have had to use the
home recorded tape in the presentation of their case. That is what they will
now have to do if CBC is granted relief and nothing has been put forward to
suggest that the respondents will be in a worse position."
We find it strange that neither this judgment of Williams CJ nor any of the
authorities cited in it, was referred to by the courts below in the instant
case.
GUIDELINES
[44] Having reviewed a number of authorities it would be useful for us now
to identify some of the factors which a Judge who is asked to make a strike
out order should take into account in conducting the balancing exercise to
which reference has already been made. I should start by making it clear
that what follows is not intended to be a comprehensive list of the factors
to be considered. The discretion is a wide and flexible one, to be exercised
"as justice requires", and it is quite impossible to anticipate in advance,
and it would be impractical to list, all the facts and circumstances which
point the way to what justice requires in a particular case. A judge dealing
with an application to strike out, should start off by reminding himself
that to strike out a party's case and so deny him a hearing on the merits,
is an extreme step not to be lightly taken. In fact, this is a consideration
which should be taken into account by the judge who is asked to make an
unless order. He should not use the threat to strike out contained in such
an order unless there is a real prospect that non- compliance with the order
might warrant the imposition of such an extreme penalty.
[45] Broadly speaking, strike out orders should be made either when that is
necessary in order to achieve fairness or when it is necessary in order to
maintain respect for the authority of the Court's orders. In this context "fairness"
means fairness not only to the non-offending party but also to other
litigants who are competing for the finite resources of the Court. If there
is a real risk that a fair trial may not be possible as a result of one
party's failure to comply with an order of the Court, then that is a
situation which calls for an order striking out that party's case and giving
judgment against him. One way in which such a situation may come about, is
if crucial documents which are not disclosed within the time prescribed by
an order for discovery, are subsequently lost or destroyed, albeit without
fault on the part of the non-disclosing party. Another is where a party has
been so fraudulent in relation to the discovery process, for example, by
forging or deliberately suppressing documents and lying about it, that it is
impossible to place any reliance on what he has disclosed as being either
authentic or complete, without a long and expensive inquiry.
[46] With regard to the use of strike out orders as a response to
disobedience of court orders, we respectfully disagree (as other courts have
done) with the view of Millett J. expressed in the Logicrose case, that such
disobedience can never justify the making of a strike out order. We prefer
the view expressed by Arden L.J. in the Stolzenberg case that the fact that
a fair trial is still possible, does not preclude a court from making a
strike out order. We accept with some qualifications the principle expounded
and applied in cases such as Tolley v. Morris (supra), Hytec Information
Systems Ltd. v. Coventry City Council (supra) and Re: Jokai Tea. Holdings
Ltd. (supra), that defiant and persistent refusal to comply with an order of
the Court, can justify the making of a strike out order. While the general
purpose of the order in such circumstances may be described as punitive, it
is to be seen not as retribution for some offence given to the court but as
a necessary and to some extent symbolic response to a challenge of the
court's authority, in circumstances in which failure to make such a response
might encourage others to disobey court orders and tend to undermine the
rule of law. This is the type of disobedience that may properly be
categorised as contumelious or contumacious.
[47] We do not, however, endorse the approach which was adopted by the
courts below in this case. This involved a two-step inquiry. The first step
was to enquire whether there was non-compliance with an unless order of the
Court. Non-compliance having been found, the second step was to consider
whether the offending party had demonstrated that its non- compliance was
due to some extraneous circumstance. The offending party having failed to do
so, the issue of the strike out order was regarded as automatic. Such an
approach approximates to the ticking of boxes on a form, an approach which
we join with Robert Walker J. in deprecating. What is required is a
balancing exercise in which account is taken of all the relevant facts and
circumstances of the case. For one thing, it must be recognised that even
within the range of conduct that may be described as contumelious, there are
different degrees of defiance which cannot be assessed without examining the
reason for the non-compliance. No doubt the fact that what has been breached
is an unless order has a special significance, as such an order is framed in
peremptory terms which make it clear to the party to whom it is directed,
that he is being given a last chance. The previous conduct of the defaulting
party will obviously be relevant, especially if it discloses a pattern of
defiance. It is also relevant whether the non-compliance with the order was
total or partial. Normally it will not assist the party in default to show
that the non-compliance was due to the fault of his lawyer since as already
stated, the consequences of the lawyer's acts or omissions are as a rule
visited on his client. There may be an exception made, however, when the
other party has suffered no prejudice as a result of the non-compliance.
Other factors which depending on the context, have been held to be relevant
include such matters as whether the party at fault is suing or being sued in
a representative capacity and whether having regard to the nature of the
relief sought or to the issues raised on the pleadings, a default judgment
can be regarded as a satisfactory and final resolution of the matters in
dispute. Regard may have to be paid to the impact of the judgment not only
on the party in default, but on other persons who may be affected by it.
[48] We would like to emphasise again that what has been offered above is
not intended to be a complete catalogue of the matters to be considered but
represents a general guide to the approach to be adopted and a sample of the
factors which have been held in decided cases to be relevant to the
balancing exercise.
THE EXERCISE OF DISCRETION BY HUSBANDS J.
[49] I turn finally to consider whether the exercise of his discretion by
Husbands J. in favour of making a strike out order, can be impugned. As
already pointed out, the learned Judge did not explain the nature or extent
of the non-compliance with which he was dealing. He did not indicate what
were the documents which the appellant ought to have disclosed, but did not
disclose in its further and better list of documents, or whether those
documents were still in existence or had been destroyed. We have held that
on the evidence the only material respect in which the appellant failed to
comply with the unless order was by failing to list in Schedule 2 the master
tapes for the relevant period. We have held that the finding of the Court of
Appeal that the appellant also had in its possession audio tapes which it
should have disclosed, is without foundation on the evidence and in any
event was not one which could properly be made having regard to the
conclusive nature of the verifying affidavit sworn by Mr. Fernandes in
support of the appellant's further and better list of documents.
[50] Can the strike out order be justified on the basis of the failure to
disclose the master tapes? We have no hesitation in holding that it cannot.
In the first place, we have already expressed our disagreement with the
approach adopted both by Husbands J. and the Court of Appeal. This was
confined to looking for some extraneous cause to explain the appellant's
non-compliance with the unless order. Not having found any, they held that
the order must issue. There was no attempt to examine what element or degree
of defiance was inherent in the appellant's failure to include the master
tapes in its further and better list, or what prejudice the respondents
suffered as a result of that failure. On the question of defiance, one
cannot ignore the fact that the appellant's failure to comply with the first
order made for a further and better list of documents, must have been
attributable in part at least, to the appellant's lack of legal
representation at the time. Even when the further and better list was filed,
the appellant still did not have the services of experienced counsel. Even
if one accepts (as we do) the finding of the lower courts that the omission
of the master tapes from that list was deliberate, the fact is that when
faced with the application to strike out, the appellant through Mr.
Fernandes did eventually acknowledge, albeit grudgingly, the existence of
the master tapes. So that, even though these tapes were never formally
included in a list of documents, the object of the order for discovery was
ultimately achieved.
[51] We have also held that there was no evidence to support the suggestion
that the master tapes were deliberately destroyed or recycled in order to
deny the respondents access to them. The recycling would have taken place
before the original order for exchange of documents was made in July 1992,
so that as in the Caribbean Broadcasting Corporation case (supra), the
respondents would have been no better off if these master tapes had been
disclosed, as they should have been, in the original list of documents,
since by then they were no longer in existence.
[52] Even though there is some element of fault in the appellant's failure
to preserve these master tapes, this could hardly justify a strike out order
given that the original order for discovery was made long after the tapes
had been recycled. Further, even if the tapes had been preserved, they would
have been of only limited value to the respondents. They possibly would have
provided conclusive evidence that the calypsos had been played on the Voice
of Barbados and established the frequency with which they were so played
during the festival period. They might also, because of the comments
allegedly made by the radio announcers both before and during the playing of
these calypsos on the station, have established that the calypsos were
intended and understood to refer to the respondents. But publication and
reference to the respondents were peripheral issues which have been removed
from the case by our refusal to re-instate certain paragraphs of the Amended
Defence (as I explain below). It was also claimed that the tapes would have
assisted in proving the additional verses which were added by the
calypsonians to the calypsos as originally recorded, but it appears from one
of the first respondent's affidavits that she has her own home-made
recordings of the calypsos including the additional verses and the
respondents are therefore in a position to reproduce them in their pleading,
as they have already done in part and propose to do more completely by way
of amendment. The master tapes would have been of no use to the respondents
in countering the defence of justification which is the only substantive
defence left. The upshot of all this is that no prejudice of any
significance has been suffered by the respondents as a result of the
omission of these master tapes from the further and better list of documents
(or for that matter from the original list of documents). The real prejudice
suffered by the respondents has been the long delay in the disposition of
this case which regrettably has occurred while the issue of discovery was
being contested before the courts.
[53] There was no attempt by Husbands J., or for that matter the Court of
Appeal, to carry out any sort of balancing exercise and they failed to take
into account any of the relevant factors referred to above. Had they done so,
they would inevitably have come to the conclusion that to strike out the
whole of the Amended Defence and order judgment to be entered for the
respondents for damages and costs, was wholly disproportionate in the
circumstances of this case and was not required either by considerations of
fairness to the respondents or other litigants, or as a response to defiance
of an order of the Court that was so egregious that it demanded nothing less.
For these reasons, the exercise of the Judge's discretion was fatally flawed
and plainly wrong.
PARTS OF DEFENCE NOT REINSTATED
[54] We did not, however, order the reinstatement of the whole of the
Amended Defence. We ordered that certain parts of it should remain struck
out. These were paragraphs 2, 3, 5, 10 and part of paragraph 6. In paragraph
2 the appellant did not admit inter alia publication of the calypsos. In
paragraph 3 the appellant did not admit the paragraphs in the Statement of
Claim in which the respondents pleaded the facts on which they relied in
support of the allegation that the calypsos were understood to refer to them.
In paragraph 5 of the Amended Defence, the appellant denied that the
calypsos referred to or were understood to refer to or were capable of
referring to the respondents. Paragraph 10 was simply a blanket denial of
what was not expressly admitted. The words in paragraph 6 that were struck
out, merely served to preserve the appellant's denial that the calypsos
referred to the respondents. By striking out these portions of the Amended
Defence, therefore, we made it unnecessary for the respondents at the trial
to prove:
(a) that the calypsos were played frequently on the Voice of Barbados during
the period of the 1989 Crop Over and less frequently, up to the date of the
writ, and
(b) that the calypsos referred to the respondents.
[55] It was obvious to us that there was no real prospect of the appellant
resisting the respondents' allegations with regard to these two elements of
the respondents' cause of action i.e. publication and reference to the
respondents, and the portions of the Amended Defence that we struck out were
really only of nuisance value to the appellant. We considered that having
regard to the delay which had occurred, the trial should not be encumbered
with unnecessary issues and that the parties should focus on the one
substantive issue in the case (apart from the quantum of damages) i.e.
whether the appellant can establish the truth of what was conveyed to
listeners by the three calypsos. The delay in the disposition of this case
has been enormous. Most of it is attributable to the unfortunate tardiness
of the Courts below in giving their reserved judgments. This is a matter on
which we have already commented adversely in our judgment on the application
for leave to appeal, and to which we do not need to return. The appellant,
however, is by no means completely blameless in relation to delay. There are
two significant periods of delay for which the appellant must share or take
responsibility. The first is the time elapsed between the expiration in
August 1992 of the period fixed by the original order for the exchange of
lists of documents, and the filing of the appellant's list on the 23rd
November, 1993. The second is the delay of about a year in the hearing of
the respondents' application to strike out, which came about as a result of
the inability of the appellant's counsel to keep the dates which had been
fixed by consent for the hearing of the matter. (I should mention that we do
not accept the respondents' contention that there was a deliberate policy of
delay adopted by the appellant or its counsel).
[56] One also cannot ignore the fact that the respondents' complaint of
inadequate discovery by the appellant, has ultimately been made good, though
only to a very limited extent, and this complaint has in fact occupied the
court from October 1994, until we gave judgment in this matter on the 7th
November, 2005, that is, for more than eleven years. While the appellant
cannot be blamed for the great majority of this delay, the fact nevertheless
is that had it made a prompt and proper response to the applications for the
orders made by the Chief Justice and to those orders themselves, this matter
may well have been tried many years ago. In those circumstances, it did not
seem unfair to trim the Amended Defence in the way in which we did, with a
view to expediting even in some small way, the final disposition of this
case.
[56] With regard to costs, we made an order which we considered fair and
reasonable in the circumstances. |
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