THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2015-02661

BETWEEN

ESA ALI Claimant

AND

NAFISA RAMSURANCE
Defendant

Before The Honourable Mr. Justice Robin N. Mohammed

Date of Delivery: Friday 22 May 2020

Appearances:
Ms Kavita C. Persad for the Claimant
Mr Richard Clarke-Wills instructed by Ms Celeste St Louis for the Defendant

DECISION ON DEFENDANT’S APPLICATION TO STRIKE OUT

Page 1 of 19
I. INTRODUCTION

1. This claim was initiated by claim form and statement of case both filed on the 4th August,
2015. The Claimant claimed the following relief:
a. A declaration that the Claimant has acquired equitable interest and is entitled to
occupy the subject house situate at No 62 Don Miguel Road, San Juan also
known as LP 58 Jojo Land, El Socorro;
b. A declaration that Deed Registration Number DE200703129206 be set aside
and declared as null, void and having no legal effect;
c. A declaration that the Defendant has not acquired any legal and/or equitable
interest and/or rights to occupy the subject house situate at No 62 Don Miguel
Road, San Juan also known as L.P 5 Jojo Lane, El Socorro;
d. An injunction mandating the Defendant whether by herself, her servants and/or
agents restraining them from verbally and/or physically abusing the Claimant
and his family or members of the household and/or agents and/or servants;
and/or issuing threats to the Claimant and his family or members of the
household and/or agents and/or servants; and/or from engaging in any
communication with the Claimant and his family or members of the household
and/or agents and/or servants;
e. Interest at the statutory rate of 6% per annum from the date hereof to the date
of judgement and thereafter a rate of 12% pursuant to Section 25A of the
Supreme Court of Judicature Act Chapter 4:01;
f. Costs; and
g. Further or other relief that the court may deem fit.

2. An appearance was filed by the Defendant on the 8th August 2015. The Defence was filed
on the 17th day of December 2015 whereby the Defendant sought that the claim be struck
out.

Page 2 of 19
 3. The first Case Management Conference was held on the 2nd February 2016 and the
Defendants made an oral application for the claim form and statement of case to be struck
out. On the same day, this Court ordered that the proposed application to strike out the
claim be filed and served on or before 19th February 2016 and both sides to file written
submissions.

4. Before the Court is an application filed on the 19th February, 2016, seeking to strike out the
Claimant’s claim and statement of case and submissions in support which was filed on 4th
August 2015.

5. Defendant filed submissions on 4th April, 2016. The Claimant subsequently filed
submissions on the 2nd June, 2016.

II. THE CLAIMANT’S CASE

6. The Claimant’s case is for a declaration that he has acquired an equitable interest and is
entitled to occupy the said property, that Deed Registration Number DE200703129206 be
set aside and declared null and void and that the Defendant has not acquired any legal
and/or equitable interest and/or rights to occupy the said property.

7. The Claimant and the Defendant are brother and sister, their parents being Zayoom Ali
(hereinafter called “the deceased”) and Zalakah Mary Ali. The Claimant claims that since
the 1960’s her paternal grandmother, Sherry Khan Ali, had a house situate on the said
property and she conveyed one lot to her son, Zayoom Ali. According to the Claimant, the
cousins of the Defendant and herself presently occupy the remainder of the two lots.

8. The Claimant avers that her parents divorced in 1992 and subsequent to this, the Claimant’s
father constructed a dwelling house made of wood and concrete on his parcel. The Claimant
stated that it is there the deceased resided with his then wife and children. After the
separation, according to the Claimant, he chose to reside with his father while the
Defendant ran away from the parents’ home. After the death of his paternal grandfather,

Page 3 of 19
 the Claimant stated that he along with his father and brother left to migrate to Toronto.
However, they returned after three years. During the time abroad, the Claimant’s brother,
Omar Ali, occupied the house.

9. The Claimant avers that in or around early 2003, the Claimant, the deceased and his brother
Ousman Ali decided to construct a new house on the subject parcel and to do this the old
dwelling house was demolished. While construction was taking place, the trio occupied the
downstairs portion of the grandmother’s house.

10. The Claimant described the subject current house as a flat one-storey concrete structure
consisting of two self-contained apartments. The deceased occupied the front apartment
and after his death Ousman Ali (deceased) occupied the said apartment.

11. The deceased passed away on the 19th of December, 2004 and all six of the deceased’s
children met on the 30th day of December, 2004 at the home of attorney-at-law Nafisa
Mohammed to seek advice because the deceased left no will disposing of his assets. The
Claimant avers that on this day all siblings including the Defendant denied the existence
of any will.

12. The Claimant stated further that at all material time, the Defendant was residing with her
in-laws; she was experiencing problems with such living arrangements and had expressed
that she was highly frustrated. In this regard, the Defendant requested financial assistance
from their sister, Amina Zena Rooplal, to purchase a parcel of land to construct a house for
the Defendant and her family so as to escape her domestic problems with her in-laws. The
said Amina Zena Rooplal assisted the Defendant with a total of $20,000.00 Canadian
Dollars to purchase a parcel of land and the Claimant has receipts of same.

13. The Claimant avers that the said property was left to the deceased’s two sons, Ousman Ali
and himself, since they were both responsible for financially assisting their father on a
weekly basis for the construction of the current dwelling house. They purchased materials

Page 4 of 19
 and paid for labour as they relied on the assurance of their father that the property was
ultimately theirs.
14. The Claimant stated that his father became ill in or around 11th December, 2004 and was
hospitalised the day after. Since he was experiencing severe respiratory problems and was
in constant distress, he was unable to prepare and sign a will. He maintains that his
fingertips were so sensitive due to cancer that he was unable to even hold a pen or feed
himself.

15. The Claimant averred that three days immediately preceding his death, the deceased
requested that his lawyer, Nafisa Mohammed, attend the hospital for him to make a will.
The Claimant’s mother volunteered to notify the attorney but the Defendant prevented her
mother from doing same by saying “Mommy you stay out of this.” The Claimant said that
the Defendant failed to notify the lawyer and the deceased passed away shortly after
without leaving a will.

16. On January 1st 2005, the said Ousman Ali died during an altercation with the Claimant. His
death was, however, ruled as accidental by the Director of Public Prosecutions.

17. According to the Claimant, in late 2006 the Defendant circulated a copy of a will to each
of her siblings whereby the date on same indicated that the deceased had signed this alleged
will less than 24 hours prior to the time of his death. The will named the Defendant as the
executrix and trustee of the estate of the deceased with nothing being left to the remainder
of the siblings. The Claimant avers that at the time when the alleged will was circulated,
the said alleged will had already been probated.

18. Upon the revelation of the alleged will, the Claimant and his siblings immediately sought
the intervention of the Trinidad and Tobago Fraud Squad. The Claimant further alleges that
the originals of the deceased’s identification documents were either destroyed or concealed
by the Defendant.

Page 5 of 19
19. The Claimant stated that in late 2005, the Defendant approached him following the death
of their brother, Ousman Ali, and stated that she was returning home due to the problems
with her in-laws. The Defendant would have already received the monies from her sister,
Amina Zena Rooplal, to purchase land. The Claimant, together with his siblings had a
discussion and allowed the Defendant to occupy the front apartment. This apartment was
initially rented out by the Claimant following the death of his brother who was in
occupation of same.

20. The Claimant states that he operated a barbering business from one room of his portion of
the premises. This was the Claimant’s only source of income to provide for his family,
namely, his wife and three children.

21. The Claimant maintains that prior to the Defendant taking occupation of the front
apartment of the said property, she then sought to reveal the existence of the alleged last
will and testament in question of her late father. This was in late 2006 and she revealed
same following the probate. The siblings were unaware of any will, let alone probate of the
said will.

22. In September 2006, the Claimant, in the company of his brother Omar Ali, was approached
by two police officers and the Defendant. The officers advised the Claimant that the
Defendant was now the owner of the said property following the disclosure of the will and
the grant of probate. Even after such disclosure, none of the siblings confronted the
Defendant about the will and grant of probate. The Defendant then assumed occupation
and control of the front apartment which was vacated by the tenants and she sought to
exercise control over the entire property. The Defendant was adamant that the Claimant
was to vacate the property and deliver vacant possession of his portion which the Claimant
has refused to do.

23. According to the Claimant, the Defendant and her family have commenced occupation of
the said premises. Both she and her husband are in the habit of provoking and verbally
abusing him, his family and customers. The Claimant obtained a protection order from the
Magistrate’s Court which was valid for a period of one year which has since expired. The

Page 6 of 19
 Claimant and Defendant gave undertakings in those matters not to harass or provoke each
other. At the material time, however, the Defendant had filed a High Court proceedings to
settle ownership of the property. In light of those proceedings and the repeated applications
in the Magistrates’ Court, the Claimant gave an undertaking that he would vacate his
apartment, leaving behind his wife and three children, to ensure that he was not accused of
any wrongdoing by the Defendant. However, due to the harassment by the Defendant, the
Claimant states that his wife and children were forced to vacate the said property.

III. NOTICE OF APPLICATION TO STRIKE OUT

24. By Notice of Application dated 19th February 2016, the Defendant applies to the Court for
the following Orders:

1. Pursuant to Part 26 Rule 2 (1) (a), (c) and (d) of the CPR that the Claim Form
and Statement of Case filed on or about the 4th day of August 2015 (hereinafter
referred to as “the Claim”) be struck out on the basis that it was improperly
instituted; in the alternative that it does not disclose grounds for bringing
the Claim.

2. The costs of this application and the Defendant’s costs of the action to be borne
by the Claimant.

25. The grounds of the application are as follows:

1. The claim concerns property which is occupied for residential purposes;
2.The claim was instituted by way of ordinary Claim Form when the CPR mandated
institution by a Fixed Date Claim for matters of this nature by virtue of Rule 8.1
(4) (a).
3. The statement of case discloses no grounds for bringing the claim on the basis of
fraud as alleged.

Page 7 of 19
IV. ISSUES
26. The Defence made a two-limb application. The first ground is that the claim should be
struck out because it was improperly instituted, that is, the wrong initiating process was
used to commence the claim. In the alternative, the claim should be struck out because it
discloses no grounds for bringing the claim on the basis of fraud. Effectively, therefore,
the issues arising therefrom are as follows:

(a) Whether the claim should be should be struck out on the basis that it was
improperly instituted? Does commencement of the Claim by the wrong
initiating process invalidate the proceedings?

(b) Has the Claimant shown any reasonable evidence upon which fraud could
be attributed to the Defendant as particularized under the heading
“Particulars of Fraud” in his statement of case so as to sustain an action in
fraud against the Defendant?

V. LAW AND ANALYSIS

Issue (a): Whether the claim should struck out on the basis that it was improperly instituted?

27. Part 8.1 of the CPR states as follows:

(1) Proceedings are started by filing in the court office the original and one copy (for
sealing) of—

(a) a claim form; and

(b) the claimant’s statement of case.

(2)……….

(3) ……….

(4) Form 2 (fixed date claim) must be used—

(a) in proceedings for possession of premises which are—

(i) occupied in whole or in part for residential purposes; or

Page 8 of 19
 (ii) subject to any statutory restrictions on the claimant’s right to
possession;

(b) in claims arising out of hire-purchase or credit sale agreements;

(c) whenever its use is required by a rule or practice direction; and

(d) ………

(5) ……….

28. Part 72.1 (2) of the CPR describes “probate proceedings” as proceedings for the grant of
probate of the will, or letters of administration of the estate, of a deceased person or for the
revocation of such a grant or for a decree pronouncing for or against the validity of an
alleged will, not being proceedings which is non-contentious or common form probate
business; and “will” includes a codicil. How to commence probate proceedings. Part 72.2
(1) of the CPR states that probate proceedings must be begun by issuing a fixed date
claim.

29. The Defence maintains that the property falls within the categorisation of Rule 8.1 (4) of
the CPR and since the claim involves possession of premises which are occupied in whole
or in part for residential purposes, a fixed date claim should be used. The Defence avers
that the institution of the claim by way of ordinary claim form is in direct violation of Rule
8 of the CPR and the sanction of this is provided by virtue of Part 26.2 (1) (a) and (d) of
the CPR. The Defence states that the claim ought to have been instituted by way of fixed
date claim instead of ordinary claim form and having failed to do so it ought to be struck
out.

30. The Defendant also submits that the challenge by the Claimant is one that essentially forms
the basis of probate proceedings and according to Part 72 of the CPR the claim ought to
have been instituted by fixed date claim form. Since the claim has not been properly
instituted, the provisions under Rule 26.2 (1) (a) of the CPR should be utilized and the
claim be struck out.

Page 9 of 19
31. According to the Claimant, the said Claim Form was filed by error instead of a fixed date
claim form and this was not done intentionally. The Claimant maintains that there is merit
in the Claimant’s case and he ought to be given a chance to have his case heard. It was
submitted that the Honourable Court can afford the discretion to amend the said claim form
to a fixed date claim form and deal justly with the case. The attorney-at-law claims that the
inadvertence was not on the Claimant’s part but due to the attorney’s health complications
and limitations at the time.

32. In Ablack v Ablack Claim No. CV2007-01019, Gregory Delzin J (as he then was), at
page 8 of his Judgment stated the following:

“At the hearing of the application I provided both sides with the
authority of Harrigan v Harrigan [2000] FCR 650. In this case, the
submission was made that a PART 8 Claim Form under the CPR (UK)
was mandatory to initiate proceedings. At page 8 of the judgment at
paragraph 36 the Court said “But one must not lose sight of the fact that
the overriding objective of the new procedural code is to enable the Court
to deal with cases justly and this means the achievement of justice as
between litigants whose duty it is the Court’s duty to resolve. In taking
account of the interest of the administration of justice,
The factor which appears to me to be of paramount importance in this
case is that the Defendants and their solicitors knew exactly what was
being claimed and why it was being claimed when quirky petition was
served on them……CPR 1.3 provides that the parties are required to
help the Court to further the overriding objective, and the overriding
objective is not furthered by arid squabbles about technicalities such as
disfigured this litigation and eaten into the quite slender resources
available to the parties.

The appeal was allowed and the fact the proceeding were commenced by
the wrong form was considered immaterial.

Several points arose from this passage:-

Page 10 of 19
 1. The new procedural code is to enable the Court to deal
with cases justly. In other words the procedural code is to
facilitate the Court and the effective management of the
Court’s resources. In other words, form on its own does
not create an independent benefit to litigants.

2. The purpose and benefit of the form is fulfilled where

the details of the claim and reason for it are adequately
disclosed on the document

3. Any errors in procedure must be acted upon quickly by

parties in order to avoid delay and achieve the overriding
objective.

4. Technical squabbles are to be deprecated.”

33. I am of the view that this matter does fall under the ambit of probate proceedings and does
involve residential property. I agree with the Defendant that the claim ought to have been
instituted by way of Fixed Date Claim in accordance with Part 8.1(4)(a) and Part 72.2(1)
of the CPR. However, I disagree with the Defendant’s submission that the claim ought to
be struck out because of this error on the part of the Claimant. The error has been outlined
and identified at an early stage of proceedings and I find that there is no prejudice suffered
by the Defendant if the Claimant was to be afforded an opportunity to convert it from a
regular claim to a fixed date claim.

34. As stated in Ablack v Ablack above, “one must not lose sight of the fact that the
overriding objective of the new procedural code is to enable the Court to deal with case
justly”.

35. . According to Part 1.1(2) of the CPR, dealing with cases justly includes—

“(a) ensuring, so far as is practicable, that the parties are on an equal footing;
(b) saving expense;
(c) dealing with cases in ways which are proportionate to—

Page 11 of 19
 (i) the amount of money involved;
(ii) the importance of the case;
(iii) the complexity of the issues; and
(iv) the financial position of each party;
(d) ensuring that it is dealt with expeditiously; and
(e) allotting to it an appropriate share of the court’s resources, while taking into
account the need to allot resources to other cases.”

36. Striking out a claim is a draconian measure and as such, great care should be taken before
one acts hastily and thus unfairly. The Court has the responsibility to weigh the Claimant’s
right to have his matter heard with the Defendant’s right not to be burdened by frivolous
and unmeritorious litigation. In giving effect to the overriding objective, this Court is of
the view that the error was identified at an early stage of proceedings. The Defence shall
suffer no prejudice if the Claimant is given an opportunity to cure the defect by converting
from a regular claim to a fixed date claim form.

37. In my view, I cannot say that the defect caused the Defendant not to have a clear
understanding of the case put before him. The purpose and benefit of the form is fulfilled
since the details of the claim and reason for it are adequately disclosed in the document.
Part 26.8 of the CPR gives the Court the power to rectify matters where there has been an
error of procedure in certain instances. Part 26.8 provides as follows:
[1] This rule applies only where the consequences of failure to comply with a rule,
practice direction or court order has not been specified by any rule, practice
direction or court order.
[2] An error of procedure or failure to comply with a rule, practice direction or
court order does not invalidate any step taken in the proceedings, unless the
court so orders.
[3] Where there has been an error of procedure or failure to comply with a rule,
practice direction, court order or direction, the court may make an order to put
matters right.
[4] The court may such an order on or without an application by a party.

Page 12 of 19
 38. Neither Part 8.1(4) nor Part 72.2 specifies any consequence for failure to comply with the
rule. It seems clear to this Court that this matter is one where the Court can justifiably
exercise its discretion under Part 26.8 to rectify the error of procedure made in instituting
the claim. As such, this Court holds that the error of procedure does not invalidate the
proceedings and that the Court can make an order to put matters right. My decision is
grounded on the Court’s duty to deal with cases justly in furthering the overriding objective
of the Rules.

Issue B: Has the Claimant shown any reasonable evidence upon which fraud could be
attributed to the Defendant as particularized under the heading “Particulars of Fraud” in
his statement of case so as to sustain an action in fraud against the Defendant?

39. As it relates to the setting aside of the declaration of the said Deed as null and void, the
Defence submits that the pleadings proffered by the Claimant centre on the validity of the
said will and not on the basis that the Deed of Assent in and of itself is a fraudulent
document. The Defendant submits that no fraud or other cause of action has been shown
on the face of the Claim to reside in the said Deed and accordingly, the Claimant ought to
be debarred from pursuing this remedy, the clamant having failed to disclose any grounds
for so bringing.

40. The Defence also contends that the Claimant has failed to address sufficient evidence or
any evidence relative to the allegations of fraud with respect to the said will, namely, that
the signature thereon is not that of the deceased, and further, that it was made by the
Defendant. The Claimant has exhibited documents purporting to bear the signature of the
deceased. There is no evidence as to the date on which the signatures provided were made
or even that the signatures exhibited were in the hand of the deceased. Moreover, even if
the samples are submitted to an expert for assessment of the handwriting and compared to
that on the said will, the inadequacy of the samples, it is submitted, would hamper any
conclusive determination of the issue.

41. The Defendant further contends that the instant proceedings ought to be struck out as being
an abuse of process of the Court pursuant to Part 26.2 (1) (b) of the CPR. The Defendant

Page 13 of 19
 submits that the equitable maxim of “vigilantibus non dormientibus jura subveniunt”-
that equity aids the vigilant and not those who have slept on their rights- ought to be
brought into operation. Accordingly, the doctrine of laches ought reasonably to apply to
the instant matter and debar the Claimant from pursuing the claim.

42. The Claimant’s “particulars of fraud” were listed in the statement of case as follows:

(a) Subsequent to the death of Zayoom Ali, the Defendant advised their siblings that
there was no will and she was unaware of the existence of any will.

(b) The Defendant then sought to produce an alleged will almost a year and a half
later and purportedly signed by the deceased, also indicating that the said will was
already probated at the Probate Section of the Supreme Court of Judicature.

(c) The Deceased was in a state of distress upon admission at the medical institution
and remained in such condition until his death. This was confirmed by medical
officials at the Port of Spain General Hospital where the deceased was admitted.

(d) The Claimant verily believes that the signature affixed to the said will by the
Defendant or caused to be affixed by the Defendant herein and not Zayoom Ali, as
he was not in a condition to sign. The very conduct of the Defendant herein by
failing to disclose the will initially and then producing an alleged one long after is
suspicious and leads one to doubt the validity.

(e) The Claimant states that the signature is not that of Zayoom Ali.

43. The sole cause of action on which the Claimant relies is fraud. Under the rubric “Particulars
of fraud” the Claimant refers to the particulars surrounding the will of the deceased and its
invalidity. At the end of the statement of case, the Claimant claimed the following relief:
a. A Declaration that the Claimant has acquired equitable interest and is entitled
to occupy the subject house situate at 62 Don Miguel Road, San Juan also
known as L.P 58 Jojo Lane, El Socorro.
b. A Declaration that Deed Registration Number DE200703129206 be set aside
and declared as null, void and having no legal effect.

Page 14 of 19
 c. A Declaration that the Defendant has not acquired any legal and/or equitable
interest and/or rights to occupy the subject house situate at No 62 Don Miguel
Road, San Juan also known as L.P 58 Jojo Lane, El Socorro.

44. The Claimant has failed to appropriately correlate his particulars with his prayers of relief
in his statement of case. Thus, the Defendant believes that the claim should be struck out
since it discloses no case to answer.

45. I have carefully read the statement of case of the Claimant and I disagree with the
contention of the Defendant. The Claimant has sufficiently set out in his pleadings the
circumstances surrounding his father’s death and his belief of the invalidity of the will.
After reading the statement of case I have gathered that since the Defendant received
Probate from this alleged “invalid” will, then it would follow that the Deed of Assent is
also null and void.

46. While the case was adequately set out in the pleadings, the particulars of fraud are
lacklustre. In my view, the case not only involves an alleged fraudulent will but of a Deed
of Assent gained from an alleged “invalid will”. In his relief sought, steps were also missed.
The Deed of Assent cannot be set aside unless the will is deemed to be invalid. The
Claimant also failed to ask that the will be declared invalid in the prayer for relief.

47. Considering all of the above, I do not consider that the errors on the part of the Claimant
have caused the Defendant any injustice. In this case, the Defendant was still able to answer
the Claim laid by the Claimant. While there are some technical errors in the particulars and
prayer, the pleadings still sufficiently outlined the case of the Claimant. In Bernard v
Seebalack [2010] UKPC 15, the Privy Council considered the rules around amending
statements of case and stated the following at paragraphs 15 & 27:

“15. In the view of the Board, an amendment of the statement of case was
required. Part 8.6, which is headed “Claimant’s duty to set out his case”,
provides that the claimant must include on the claim form or in his
statement of case a short statement of all the facts on which he relies. This

Page 15 of 19
provision is similar to Part 16.4(1) of the England and Wales Civil
Procedure Rules, which provides that “Particulars of claim must include—
(a) a concise statement of the facts on which the claimant relies”. In
McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at p 792J, Lord
Woolf MR said:

“The need for extensive pleadings including particulars should be reduced

by the requirement that witness statements are now exchanged. In the
majority of proceedings identification of the documents upon which a party
relies, together with copies of that party’s witness statements, will make the
detail of the nature of the case the other side has to meet obvious. This
reduces the need for particulars in order to avoid being taken by surprise.
This does not mean that pleadings are now superfluous. Pleadings are still
required to mark out the parameters of the case that is being advanced by
each party. In particular they are still critical to identify the issues and the
extent of the dispute between the parties. What is important is that the
pleadings should make clear the general nature of the case of the pleader.
This is true both under the old rules and the new rules. The Practice
Direction to r 16, para 9.3 (Practice Direction – Statements of Case CPR Pt
16) requires, in defamation proceedings, the facts on which a defendant
relies to be given. No more than a concise statement of those facts is
required.

27. The Board finds nothing in this passage which is inconsistent with what
it considers to be the correct interpretation of Part 20.1(3). If a statement
of case contains allegations which are “sufficiently made” (so that it
satisfies the requirements of Part 8), there is no need to amend it in order
to provide particulars. These can be provided by way of further information
or in the form of a witness statement. But for the reasons stated earlier, in
the present case the statement of case should have included a short
statement of the heads of loss that were being claimed. This could have been
amplified by further information and/or in the witness statement(s).”

Page 16 of 19
48. I am of the view that the pleadings of the Claimant did satisfy Part 8 of the CPR. The
Claimant gave a short clear statement of the issues surrounding the case and it was
sufficient for the Defence to give a response. I find that striking out the statement of case
in this specific instance because of a lack thereof of particulars will not amount to dealing
with the case justly.

49. In Real Time Systems Limited v Renraw Investments Limited Civil Appeal No. 238
of 2011, Jamadar JA considered the responsibility of a Court to manage cases and further
the overriding objective. To do this, a judge does have the power to request ‘particulars’ of
the statement of case when it is found to be lacking. Jamadar J.A stated at page 9,
paragraphs 22, 23 and 24:

“22. …. Clearly judicial officers now have the responsibility not just for managing
the pace of litigation but also the shape of litigation. Hence the ‘intense focus … on
the pre-trail stages.’ What then are the ‘noble objectives embodied in Part 25’? Simply
put, the core objective is to ‘further the overriding objective by actively managing
cases,’18 which includes achieving, inter alia, the thirteen objectives listed in Rule
25.1, CPR, 1998. I have already identified that these include, the early identification
of the issues and the sorting out of which issues need a full investigation and which
ones can be dealt with summarily, and ensuring that no party gain any unfair
advantage by reason of a lack of full disclosure of all relevant facts.

23. In order to achieve the above, case management, which necessarily includes issue
management, is central to achieving the Overriding Objective of the CPR, 1998,
which is to deal with cases justly. And, to achieve success in this task the court is given
certain general wide ranging powers of management. These are listed at Rule 26.1,
CPR, 1998. Among these powers are several which are directly related to identifying
issues and determining whether they should be heard and if so when and how. And
critical to these powers of management is the specific power to: “take any other step,
give any other direction or make any other order for the purpose of managing the
case and furthering the overriding objective.”

Page 17 of 19
 24. This specific power includes the power to order the delivery of ‘further and better
particulars’ on either a statement of case or a Defence. And, in exercising this power
the court can act on its own initiative, pursuant to its duty and power to actively
manage cases. Clearly this is a necessary power, because there will always be matters
in which a ‘pleading’, whether a statement of case or a Defence, is defective by
reason of the inadequacy of facts disclosed, but not to the extent to make it an abuse
of process or to constitute such a non-compliance with Parts 8 or 10 to reasonably
or proportionally justify striking it out pursuant to Part 26.2. In such cases a court
ought to be able to manage the matter so as to properly identify the issues to be
responded to, in say a Defence, by making an appropriate order for the supplying
and serving of ‘further and better particulars’ as directed. In my opinion, a
purposive reading and interpretation of the CPR, 1998 reveals this intention”

50. As stated above, there will always be matters in which a ‘pleading’ is defective by reason
of inadequacy but not to the extent to make it an abuse of process. I find that this matter
falls in that category. The Defendant also submitted that the claim is an abuse of process
of the Court. In Danny Balkissoon v Roopnarine Persad and JSP Holding Limited No.
CV2006-00639 Jamadar J (as he then was) opined:

“………even where there may be an abuse of process that does not mean
that the only correct response is to strike out a claim or statement of
case….Third, the jurisdiction for power of the court to strike out
proceedings as an abuse of the process of the court is discretionary, given
the status of the constitutional rights of access to the court it would appear
that striking out a claim should be the last option….”

51. Striking out a claim should be the last option. I do not find that this case has met this
threshold. In keeping with the decisions in Bernard v Seebalack (supra) and Real Time
v Renraw (supra), this Court shall order pursuant to the provisions of Part 26.1 (w) of
the CPR that the Claimant supply “further and better particulars” of the cause of action of
fraud on which the Claimant seeks to rely.

Page 18 of 19
IV. DISPOSITION

52. In light of the foregoing analyses and findings, although the Court proposes to dismiss the
Defendant’s application, it is clear that the application was justified. The Court having
exercised its discretion to rectify the Claimant’s Claim, it appears right that the Claimant
should bear a substantial portion of the costs of the said application. Accordingly, the order
of the Court is as follows:

ORDER:

[1] The Defendant’s Notice of Application filed on 19th February, 2016 to strike
out the Claimants’ Claim and Statement of Case be and is hereby dismissed.
[2] The Claimant shall amend his Claim Form from an ordinary Claim to a Fixed
Date Claim.
[3] The Claimant shall also amend his Statement of Case to provide “further and
better particulars” on the cause of action of fraud.
[4] The amended Claim and Statement of Case to be filed and served on or before
30th June, 2020.
[5] The Claimant shall pay to the Defendant 75% of the costs of the Defendant’s
Notice of Application filed 19th February, 2016 to be assessed in accordance
with Part 67.11 of the CPR, in default of agreement.
[6] In the event there is no agreement of the quantum of costs, then further
directions will be given at the next hearing of the matter.
[7] The matter is next fixed for the 23rd July, 2020 at 10:30 am in courtroom
POS22 for a case management conference.

___________________
Robin N Mohammed
Judge

Page 19 of 19