Jamaica Money Market Brokers Ltd and Another v Pradeep Vaswani and Another

 
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[2012] JMCC Comm 5

RULING

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

COMMERCIAL DIVISION

CLAIM NO. 2011 CD 00076

Between
Jamaica Money Market Brokers Limited
1st Claimant

and

Jmmb International Limited
2nd Claimant
and
Pradeep Vaswani
1st Defendant

and

Santoshi Limited
2nd Defendant

Mr. Michael Hylton Q.C., Mrs. Symone Mayhew and Ms. Shauna Kaye Carter instructed by Harrison & Harrison for the Claimants.

Mr. Gordon Robinson , Mr. Peter Asher and Ms. Janene Laing , instructed by Phillipson Partners for the 1 st Defendant.

Evidence —Admissibility of documents —Rule 28.19 of the CPR —Meaning of authenticity —Whether documents admissible without more when recipient of disclosed document does not serve notice to prove document —Whether objection on grounds of hearsay can still be taken

Mangatal J:
RULING ON DOCUMENTS-RULE 28.19 OF THE C.P.R.
1

This ruling concerns admissibility of documents as exhibits and the meaning and purport of Rule 28.19 of the Civil Procedure Rules ‘the CPR’. Standard Disclosure and Inspection under Part 28 of the CPR as ordered at a case management conference have taken place, and the Claimants have applied to have certain documents entered en bloc as exhibits in this case. They rely upon Rule 28.19 of the CPR.

2

Rule 28.19 of the CPR reads as follows:

Notice to prove document

28.19 (1) A party shall be deemed to admit the authenticity of any document disclosed to that party under this part unless that party serves notice that the document must be proved at trial.

(2) A notice to prove a document must be served not less than 42 days before the trial.

3

The Attorneys-at-Law for the 1 st Defendant on the 2 nd of April 2012 filed a Notice Objecting, pursuant to Rule 28.19, to certain of the documents disclosed by the Claimants in their List of Documents, and expressly requiring the Claimants ‘to prove their authenticity at the trial’.

4

Learned Queen's Counsel Mr. Hylton, who appeared on behalf of the Claimants, submits that those documents in relation to which no objection has been filed should be admitted into evidence without more. Counsel for the 1 st Defendant, Mr. Robinson on the other hand, has submitted that Rule 28.19 has not relieved the party who has made disclosure of a document from having to prove that document's admissibility. Mr. Robinson has further submitted that the time to take objections on grounds other than proof of authenticity, for example on the basis of relevancy or the rule against hearsay, is at the time when it is sought to tender the document into evidence as an exhibit.

5

Though there are a number of differing definitions of ‘Hearsay’ revealed in the authorities, in my view, ‘Hearsay’ means a statement made otherwise than by a person while giving oral evidence in proceedings which is tendered as evidence of the matters stated-see Phipson on Evidence, 15 th Edition paragraph 25–02 .

6

It is important to note that the rule against hearsay applies equally to former oral statements of a party as well as to documents. As regards documents, ‘… it is relevant both to the authenticity of the document (that, for example, it was signed by the person whose signature purports to be on it) and to its contents ’— Phipson paragraph 25-16 (My emphasis).

7

Under Rule 28.19 of the CPR, which is similar to Part 32 Rule 19(1) of the English Civil Procedure Rules, a party to civil litigation shall be deemed to admit the authenticity of a document disclosed to that party under Part 28(the Disclosure and Inspection Part of the CPR), unless that party serves notice that the document must be proved at trial. This is described by Phipson, in relation to the English Rule as being a ‘presumption of authenticity’— paragraph 40-01.

8

The effect therefore is to render such documents prima facie admissible or presumed admissible, so far as their genuineness and validity (as distinct from their truth), go.

9

In the 2007 White Book Service, Civil Procedure, Vol. 1, paragraph 32.19.1 , it is stated that this rule differs from its predecessors in that now a party will...

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