Joan Allen and Another v Rowan Mullings

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,Brooks JA
• Judgment Date: 31 July 2013
• Court: Court of Appeal (Jamaica)
• Docket Number: APPLICATION NO 226/2012
• Date: 31 July 2013

[2013] JMCA App 22

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

APPLICATION NO 226/2012

Between:

Joan Allen

1st Applicant

Louise Johnson

2nd Applicant

and

Rowan Mullings

Respondent

Gayle Nelson and Miss Analisa Chapman instructed by Gayle Nelson and Company for the applicants

Miss Gillian Mullings instructed by Naylor and Mullings for the respondent

CIVIL PROCEDURE - Expert witness - Whether a party can obtain an Order during the course of a trial to adduce expert evidence at that trial - Whether such application would constitute a proper basis for a procedural appeal under Civil Procedure Rules 2002, Rules 1.1(8) and 2.4 - Application for permission to appeal

Morrison JA

1 I have read in draft the reasons for judgment of my sister Phillips JA and agree with her reasoning. I have nothing to add.

Phillips JA

2 This matter raises the issue as to whether a party can obtain an order during the course of a trial to adduce expert evidence at that trial. The trial judge in the instant case refused such an application. He also ruled that leave to appeal could not properly be granted in respect of a ruling made on the admissibility/inadmissibility of evidence, or any ruling made during a trial. He found that such a ruling would not constitute a proper basis for a procedural appeal under rules 1.1(8) and 2.4 of the Court of Appeal Rules (CAR).

3 The application which therefore came before this court was initially an application for permission to appeal, but, by and with the consent of counsel for both parties and the approval of the court, the application for permission to appeal, if granted, was to be treated as the appeal itself.

4 The decision of K Anderson J was given on 18 October 2012, wherein he specifically denied:

As indicated above, the learned judge also found that he had no jurisdiction to grant leave to appeal in respect of interim orders made during the course of the trial.

• (i) the applicants' oral application that a letter dated 24 January 2012 and a surveyor's report dated 10 January 2012 prepared by Isa Angulu, commissioned land surveyor, enclosed therein, be deemed expert evidence and/or that the relevant sections of the letter constitute evidence of the primary facts contained therein; and

• (ii) the applicants' amended notice of application for court orders filed on 20 July 2012 requesting permission to obtain an expert report from the said Isa Angulu in respect of whether the concrete wall at the rear of premises between 115 and 117 East Mountain Pride Avenue was situated within the boundary of the applicants' premises.

5 Although the applicants had not yet received the written reasons of K Anderson J (which were provided to us at the commencement of the appeal for our deliberations) there were 16 proposed grounds of appeal which were set out as the grounds of the application for permission to appeal. The main grounds are the following six:

• ‘(a) The learned Judge erred in law and in fact in finding that, in circumstances where the Courtappointed Independent Expert had been found not to be qualified to address a crucial issue necessary to determine the Defendants' counterclaim (and who, at all material times had been thought by the court to be qualified to address that issue), the Defendants should not be granted permission to produce and put forward an Expert Report to address that outstanding issue;

• (b) The learned Judge erred in law and in fact in not permitting the Defendants to put forward crucial evidence that was necessary to assist the Court in determining the merits of the Counterclaim and the issue of encroachment claimed therein;

• (c) The learned Judge erred in law and in fact in not finding that the overriding objective and the overriding interests of justice were aimed at determining a matter based on its merits, and that permitting the Defendants to prepare and produce an expert report on an issue that was not addressed by the courtappointed expert and could not be so addressed due to lack of qualification, was in furtherance of these objectives;

• (e) The learned Judge erred in fact and in law in failing to properly consider that although the trial of the matter herein was partheard, the relevant foundation had been laid through evidence marshalled from Mr Easton Douglas, the courtappointed expert, concerning the qualifications and experience of Mr Angulu; also there had been marshalling of evidence from the 1 ^st defendant that she had commissioned Mr Angulu to do a report; and that he had produced a report; and for the Defendants, oral submissions and applications had been made concerning Mr Angulu's qualifications based on the evidence of Mr Easton Douglas and an Affidavit of Analisa Chapman; and the Court was made aware of the deficiency in the relevant independent expert's report several months before the Defendants were scheduled to resume their case in October 2012.

• (m) The learned Judge erred in law and in fact in finding that a desire to avoid any delays or adjournments of the matter outweighed the need to allow the Defendants' evidence which would assist the court in its overriding objective of a just determination of the matter and would prevent the need for further litigation in the future.

• (o) The learned Judge erred in law in finding that the Court has no jurisdiction to grant leave to appeal in respect of the orders it made concerning the Defendants' applications, as they were orders made during the course of trial.’

6 Having heard the application for permission to appeal on 8 March 2013, and pursuant to the agreed procedure as mentioned previously, we made the following orders:

‘Application for leave to appeal is granted. The hearing of the application is treated as the hearing of the appeal which is allowed.

The order of Anderson J made on the 18 October, 2012 is set aside and the following orders are made:

• 1 Mr Isa Angulu, Commissioned Land Surveyor of Angulu and Associates, is hereby deemed to be an expert for the purposes of these proceedings;

• 2. The said Mr Isa Angulu shall prepare and produce an expert report by 30 ^th day of April 2013 in respect of:

  • a. the registered boundaries between the premises at 115 and 117 East Mountain Pride Avenue, and

  • b. the location and height of the concrete wall at the rear of the said premises;

• 3 There shall be no order as to costs for the application for leave to appeal and the appeal.’

These are the reasons we promised to provide.

The proceedings

7 The matter has had a rather unusual history through the courts. The claim was originally filed by the respondent against the applicants on 6 May 2009 asking that they:

The respondent also sought, inter alia, an order for damages for breach of covenant and damage to his premises.

• a. remove and/or destroy the portion of the dividing wall which was in breach of the restrictive covenants on the certificates of title for the properties owned by the parties which adjoin each other;

• b. construct a proper trench and/or other landscaping feature to prevent the accumulation of water in the area behind the boundary wall and onto the respondent's property;

• c. clean the trench and the trench area behind the boundary wall in order to prevent flooding and the accumulation of water on the premises; and

• d. maintain the trench and access to it in clean and clear condition.

8 The applicants' defence and counterclaim were not filed until 19 February 2010, and by then for the purposes of this application much had occurred. Of particular importance, Rattray J had on 28 October 2009, on the respondent's interim application for a mandatory injunction, inter alia, but with counsel for the applicants present, appointed Mr Easton Douglas as an expert witness to determine whether there was a breach of covenant affecting the respondent's certificate of title. Other orders were made with regard to the timetable for the production of Mr Douglas' expert report, for questions to be posed to him, and for answers to be submitted by him. Affidavits and submissions were also to be filed and the matter was adjourned to be heard on 26 April 2010.

9 The 1 ^st report of Mr Douglas dated 28 January 2010, was served on the applicants' attorneys on 29 January 2010, in keeping with the court's directed schedule. Prior to that, however, the applicants' attorney had submitted to Mr Douglas, surveyor's identification reports from Donald Simpson and Mr Angulu, commissioned land surveyors on 3 November 2009, and Mr Douglas had also attended the premises of the parties and conducted a survey of the same on 11 January 2010. A defence to counterclaim was filed on 20 March 2010 and the respondent's application scheduled for 26 April 2010 was adjourned on that date, heard by Campbell J on 30 April 2010 and the mandatory injunction which had been asked for was refused.

10 Campbell J adjourned the case management conference to facilitate mediation, which occurred on 9 November 2010, but which was unsuccessful. The case management conference took place before Sinclair-Haynes J and among the orders made was that the trial date was set for 10 and 11 February 2011 with time-tables for standard disclosure, inspection, production and service of witness statements. However, an oral application by the applicants' attorneys for a further expert report to be permitted was not heard by the judge due to a conflict of interest.

11 On 23 November 2010 Edwards J ordered, on the basis of an application before her, that the report by the court-appointed expert had been done in respect of the interim application then before the court, and before the applicants' pleadings had been filed, that Mr Douglas, chartered surveyor (who was present at the application),...