VRL Operators Ltd v National Water Commission and Others
| Jurisdiction | Jamaica |
| Judge | Batts J,David Batts Puisne Judge |
| Judgment Date | 13 February 2015 |
| Neutral Citation | [2015] JMSC CIV 32 |
| Docket Number | CLAIM NO. 2009 HCV 03398 |
| Court | Supreme Court (Jamaica) |
| Date | 13 February 2015 |
[2015] JMSC CIV. 32
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA THE CIVIL DIVISION
CLAIM NO. 2009 HCV 03398
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Mr. Walter Scott QC, Dr. Lloyd Barnett , Mr. Weiden Daley instructed by Hart Muirhead Fatta, Attorneys-at-Law for the Claimant.
Mr. Kevin Williams , Mr. Collin Alcott instructed by Williams Alcott Williams for the 1 st Defendant.
Ms. Carlene Larmond , Mr. Andre Moulton instructed by the Director of State Proceedings for the 2 nd and 3 rd Defendants.
Mrs. Denise Kitson QC, Mrs. Suzanne Risden-Foster , Ms. Shanon Mair instructed by Grant Stewart Phillips for the 5 th Defendant.
Mr. Charles Piper QC, Ms. Tamika Cogle-Duhaney instructed by Charles E. Piper & Associates for the 6 th Defendant.
Preliminary Ruling-Evidence- Whether computer generated evidence admissible-whether business records admissible-Sections 31 DEFG&H of Evidence Act- Whether necessary to call person who input the data onto computer system — meaning of ‘Subject To’.
Cor: Batts J,
On the 27 th January 2015 at a hearing in Chambers, I ruled among other things that:
‘The Claimant's application to admit evidence is deferred for consideration at the trial.’
As fate would have it, the matter appeared on my trial list for the 9 th February 2015. The Registrar assured me that the parties had no objection to my undertaking the trial, notwithstanding the fact that I had made certain Pre-trial Orders.
Upon commencement of trial Dr. Barnett for the Claimant called as his first witness Mr. Peter Williams. The evidence in chief of this witness related to the admissibility of certain documents being the Price Waterhouse Coopers audit letters and attached financial statements [page 317 to 816 of the Judges Bundle filed on the 25th November 2014] . The witness was allowed to produce and identify his filed copies and after cross examination an application was made to admit those documents as Exhibit 1. Having heard submissions I admitted the documents and promised to state my reasons as a part of the final judgment in this matter. I made it clear however that the audit letters were opinion evidence and the attachments, the documents on which the opinion was given. It would still be necessary for that substratum of fact to be proved.
The Claimant's next witness was Mr. John Issa. The witness statement [Bundle 2 H] on which the Claimant intended to rely related only to the financial statements attached to the auditors (PWC) reports earlier alluded to. At this juncture Mr. Charles Piper QC queried whether the trial on substantive issues had commenced or whether the court was treating with the application to admit evidence as a discrete issue. This was a point also raised by Mrs. Kitson QC. Dr. Barnett indicated that Mr. Issa at this juncture was being called in respect of the application to adduce evidence. After some interchange, it became clear to me that although the trial had commenced the parties all were of the view that the application to adduce evidence was being dealt with discreetly, so that some witnesses were likely to be recalled to give other evidence and some for further cross examination dependent on which documents were adduced.
I must admit that this was not my anticipation when I ordered that the application to adduce be made at the trial. However, upon revisiting the terms in which it was stated, I fully understand why the parties would have adopted this approach. In the result therefore, the application was eventually heard as a trial within a trial. It is for this reason; evidence having been lead and there having been cross examination, re examination and evidence in rebuttal, I at this stage decided to state my decision and the reasons therefore.
The Claimant also called evidence of Messrs. Anthony Cheng, John Issa, Lenworth Lobban, David Kay and Antoinette Lyn. Dr. Patrick Dallas was called by the 5 th Defendant as a rebuttal witness. The parties then made extensive submissions on the matter of the admissibility of the various documents. I will not restate the evidence or the submissions, but will reference them only to the extent necessary to explain my decision. The parties are to rest assured that I found them all very insightful and certainly mean no disrespect by adopting this approach. However, the exigency of time and space makes it convenient to do so.
The documents were helpfully categorized in groups: A, B, C and D [see Claimant's Notice of Intention to tender in Evidence Hearsay Statements made in documents filed on the 14th October 2014, page 28 Judges Bundle filed 25th November 2014] .
Category A : These were monthly revenue analysis and occupancy statistics as well as various statistics and reports related to room revenues. It was contended that these were computer generated.
Category B : These were the relevant certificates of competence and professional training for Mr. Anthony Cheng.
Category C : These were the Jamaica Tourist Board Annual Travel Statistics for 2005 and 2008.
Category D : These were the auditors reports and financial Statements and supplementary financial statements for VRL Operators Ltd. and International Hotels Ltd and VRL Management Ltd for various years.
I will indicate my decision and reasons with respect to each category.
. The Category D documents were admitted as Exhibit 1 . The opinion letter for the auditors was deponed to by Mr. Peter Williams, a partner of Price Waterhouse Coopers. The accompanying financial statements were signed by Mr. John Issa who identified them as the financials of companies of which he was chairman. I did not understand the Defendants, all this evidence having been lead, to be pursuing seriously the objection to this category of documents. I will note them as Exhibits 1 (a) -1(m) .
Category B documents. The objection to these was not pursued. I therefore will admit these as Exhibit 2 (a) – (i).
Category A documents. These are to be found at pages 32- 85 of the Judges Bundle filed on the 25 th November 2014. They are unsigned computer generated tables and data related to room occupancy and revenues over a period of time. Mr. Anthony Cheng, an Information Technologist gave evidence with respect to the Claimant's ‘ System Applications and Products in Data Processing’ or SAP systems. This witness was responsible for the maintenance of the computer system hardware. The hardware consisted of computer servers and network devices. He explained among other things that the system had ‘redundancies’. By which he meant it would continue operating at all times even if one part was down, even if at a reduced capacity. He deponed that at all material times between May 2004 to October 2004 the system operated properly, there was no alteration which would have affected the accuracy or validity of the content of the documents. The computer was properly programmed to execute the appropriate programme.
The cross examination elicited from Mr. Cheng that he was not present when the data was inputted. Further, that human input was necessary. He acknowledged that this was so at the very inception of the process, however the majority was electronic. The data was inputted by persons all over and at varying locations, be they hotel, front desk or travel agents overseas. He stated that the access identification was departmental rather than individual. In terms of the ability to enter and change information the witness said very few people could, only the chairman and a few others. The system would indicate that there had been a change.
He also explained that the SAP system took information from computers at each hotel. It is ‘networked’ from hotel to the SAP . That is, from the Property Management System to the SAP . This is what he refers to as the ‘interfacing’ with local computers. He indicated that the data entry could be done by hotel staff or even by the guest himself online. He also explained the maintenance regimes for the system.
Also called in respect of this category of documents was Mr. Lenworth Lobban. His witness statement dated 10 th October 2014 stood as his evidence in chief. He is an auditor and details his qualifications and experience. In the period 1996–2012 he worked for SuperClubs and was responsible to ensure that accounting information was accurate, complete and conformed with SuperClub's policies. He described the software he used to do this and stated that he was responsible for its maintenance. He was a member of the management team that developed and customized the ‘SAP’ system. He described the process by which the spreadsheets were generated and said the system had not malfunctioned in the period. He identified the documents as having been generated by the SAP .
When cross-examined he stated that as far as the software for the SAP was concerned he could fix a malfunction if it was a ‘customization’ problem. The hardware was not his forte. He admitted that he did not personally input data. He could not remember who inputs data. He said he could recall no occasion on which the computers had malfunctioned at the Runaway Bay property. He stated at the outset of the SAP project the computers were all new. He explained that the information which went to the SAP was uploaded from various hotels and this was electronically done. He would be unable to say if the data inputted was incorrect.
Mr. David Kay, the Vice President of Corporate Finance of the...
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