New Falmouth Resorts Ltd v International Hotels Jamaica
| Jurisdiction | Jamaica |
| Judge | Brooks, J. |
| Judgment Date | 31 October 2003 |
| Judgment citation (vLex) | [2003] 10 JJC 3101 |
| Date | 31 October 2003 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. C. L. 2002/N0900 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
SUIT NO. C. L. 2002/N0900
TRESPASS TO LAND - Damages - Use and occupation of plaintiff's land - Whether reports of expert witnesses qualify as expert reports - Whether reports comply with rules in Part 32 of Civil Procedure Rules 2002 - Reasonableness of Bill of Quantities - Mesne profits - Award of profits
When this matter came on for hearing I ruled that Judgment be entered on behalf of the Plaintiff on the claim, the Defendant's defence having previously been rendered, struck out. The Defendant had earlier failed to comply with an "unless order" made on a date on which the pretrial review was scheduled to be heard and consequently suffered the sanction mentioned above.
As a result of Judgment having been pronounced on behalf of the Plaintiff the hearing proceeded by way of an assessment of the Plaintiff's damages.
It was I who made the "unless order" mentioned above. Although the pre-trial review was scheduled to be heard by me on that occasion that hearing did not take place. I therefore do not consider myself disqualified by rule 38.4 from conducting the hearing of the assessment of damages.
The Plaintiff's claim as a result is for damages for trespass and for the Defendant's use and occupation of the Plaintiffs land. This land is situated at New Court in the parish of Trelawny and is registered at Volume 1066 Folio 929 of the Register Book of Titles. It is hereinafter referred to as "the land."
The evidence led on behalf of the Plaintiff as to the nature of the trespass came by way of a witness statement of Mr. James Chisholm the Managing Director of the Plaintiff's Company. Mr. Chisholm testified that since May 2000 the Defendant has remained in possession of the land, despite a notice to quit served on it dated 13 th August 2002.
Mr. Chisholm further testified that in or about the year 2001 the Defendant constructed a sewage pond on the land. The Defendant utilized the pond and the equipment used in conjunction with it for the purposes of its hotel complex that it operated on land adjacent to the land.
Apart from the sewage plant the Defendant also used a portion of the land for tennis courts. Those courts were, according to Mr. Chisholm's testimony in cross-examination, previously placed on the land by the (then) owners of the said hotel complex, and with the Plaintiff's permission.
The Plaintiff called two witnesses to testify as experts. The first was Mr. Robert Evans, a civil engineer. His witness statement dated the 17 th day of June 2003 asserted that at the request of Mr. James Chisholm he estimated the cost of removing the sewage pond and re-instating the land to its pre-existing condition. This cost he placed at U.S. $141,475.00. The Jamaican equivalent was $8,368,258.00 according to Mr. Evans.
He originally had calculated the costs in Jamaican Dollars and then converted the total to United States Dollars using an exchange rate of J$59.15: U.S. $1.00 which he says was the rate on the 16 th June 2003.
The second expert witness was Mr. Edwin Tulloch-Reid, a chartered valuation surveyor. By virtue of his witness statement and testimony under cross-examination Mr. Tulloch-Reid opined that at August 2003:
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(a) the market value of the land for a "special purchaser" such as the Defendant, would be $36.2M.
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(b) the value of the improvements to the land namely tennis courts and perimeter walls would be $12.0M
making a total value of $48.0M; and
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(c) the monthly rental value of the land would be $800,000.
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(d) the monthly value to the proprietor of the land from the operation of the tennis and sewage treatment/irrigation facilities would be $750,000
making a total monthly rental value of $ 1,550,000.00.
Mr. George in his closing submissions submitted that there were fatal flaws in the reports of both these expert witnesses. These flaws stem, according to Mr. George, from the failure to comply with the rules set out in Part 32 of the Civil Procedure Rules 2002. Consequently, submitted Mr. George, the reports do not qualify as expert reports; they rank as hearsay evidence and are therefore inadmissible. He concluded that the court should ignore them.
Before going into the details of Mr. George's criticisms of the reports it would perhaps be beneficial to examine how these reports came to be produced. A brief outline of the relevant orders at the interlocutory stages would also be helpful in this regard. They are as follows:
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(1) No order regarding any expert report was made at the case management conference before Clarke J. (now deceased) on 8 th April 2003.
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(2) On 2 nd June 2003, McCalla J. on the application of the Plaintiff ordered, inter alia,
"that a professional appointed by the Plaintiff be permitted access to (the land) for purpose of examining the requirements to return land to natural state, such inspection to take place within 21 days of the date hereof."
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(3) On 25 th June 2003 Reid J., on the application of the claimant ordered "that the Plaintiff herein be permitted to call and/or put in expert report by Mr. Robert Evans, Professional Engineer of the company Technical Enterprises Ltd."
It is to be noted that Mr. Evans' expert report, which was appended to a witness statement made by him, had already been filed in court. It was also referred to in the affidavit filed in support of the application that gave rise to this order.
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(4) Reid J held the pre-trial review on the same day (25/6/03), but he made no order therein concerning any expert witness or report.
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(5) On the 31 st July, after the commencement of this assessment exercise, again on the application of the Plaintiff, I ordered, inter alia ,
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(a) that the Plaintiff herein be permitted to call and/or put in evidence report by Mr. Edwin E. Tulloch-Reid chartered Valuation Surveyor.
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(b) that the expert report prepared by the said Valuation Surveyor be served on the Defendant on or before 16 th September 2003.
As explained above both experts provided witness statements to which their respective reports were appended. Both attended court and were cross-examined.
Based on the answers in cross-examination as well as his observations made of the reports, Mr. George made the following specific complaints of the reports but more so of Mr. Tulloch-Reid's.
(a) "The reports do not comply with rule 32.12 which requires that the "expert witness must address his or her report to the court and not to any person from whom the expert witness has received instructions."
(b) The report of Mr. Tulloch-Reid fails to comply with the requirements of rule 32.13 which requirements are also mandatory since the word "must" is used for every paragraph under that rule. In particular Mr. George highlighted that Mr. Tulloch-Reid gave viva voce evidence in cross-examination that he relied on information from other sources, yet in breach of rule 32.13(1) (b) he failed to give the details of that information in his report. For example Mr. Tulloch-Reid stated that he relied on the Statistical Institutes inflation rate for real property. For information as to replacement costs for structures on the property he relied on a Mr. Spence a Quantity Surveyor. Despite this these sources were not cited in the report nor were Mr. Spence's qualifications reported.
Mr. George complained that these and other, similar failures in Mr. Tulloch-Reid's report breach the spirit and intention of Part 32 in that the court is given no empirical evidence by which to test the validity or otherwise of the expert's opinion.
The opinion should therefore, he concluded, be rejected. He submitted that by Rules 32.12 and 32.13 the court has no discretion to admit the evidence if it finds that there has been a breach of the provisions of those Rules. Mr. George cited no cases in support of his submissions. The court has, however, in considering the submissions, considered the cases of Stevens v Gullis [2000], 1 ALL E.R. 527, and in particular the dictum of Woolf M.R. at p. 533. The learned Master of the Rolls said, in considering the practice directions associated with rule 35 of the United Kingdom CPR (which directions are very similar in content to our rule 32.13) said as follows:
"The requirements of the practice direction that an expert understands his responsibilities, and is required to give details of his qualifications and the other matters set out in paragraph 1 of the practice direction, are intended to focus the mind of the expert on his responsibilities in order that the litigation may progress in accordance with the overriding principles contained in part 1 of the CPR."
The principle which can also be extracted from that case is that where an expert witness fails to set out the substance of his instructions and in other respects fails to comply with the relevant rule, the judge has a discretion as to whether to allow the expert to give evidence. (Emphasis mine).
I have also considered the very (in my respectful view) comprehensive judgment by...
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