Charmaine Bernard (Legal Representative of the Estate of Reagan Nicky Bernard) v Ramesh Seebalack (Trinidad and Tobago)

Under Part 20.1(3) of the Trinidad and Tobago Civil Proceedings Rules, adding pleaded heads of loss after the first case management conference is a “change” to the statement of case. The rule is concerned with altering the pleading’s text, not only with changing the underlying nature or character of the claim. It therefore catches the introduction of previously unpleaded heads of general or special damages, subject to the statutory exception for immaterial corrections such as typographical errors.

The overriding objective informs the interpretation of the rule but does not justify a strained, more permissive construction. The court must also take account of the Rules’ purpose of promoting disciplined, proportionate and expeditious litigation.

The deceased was killed by a truck. His legal representative brought proceedings against the driver, owner and insurer, alleging negligence but providing no particulars of damages.

After the first case management conference, the claimant obtained documents concerning funeral expenses and the deceased’s earnings. She then applied to re-amend her statement of case to plead special damages for funeral expenses and a lost-years claim. Bereaux J allowed the application. The Court of Appeal of Trinidad and Tobago, comprising Warner, Kangaloo and John JJA, reversed that decision.

The central issue was whether the proposed additions constituted a “change” under Part 20.1(3) of the Civil Proceedings Rules and, if so, whether permission could be granted in the absence of a later change of circumstances.

The appeal was dismissed.

1. Pleading damages. Part 8.6 required the claimant to include a short statement of all facts relied upon. Pleadings continue to mark out the parameters of the case, even where witness statements and documents disclose its detail. A detailed witness statement or list of documents cannot substitute for the required pleading. Where general damages are claimed, the statement of case should identify the heads of loss claimed. The Board applied the reasoning in Perestrello v United Paint Co Ltd and the observations in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775.
2. Special damages. Part 2.3 treated a claim concerning personal injuries as including a claim for damages in respect of death. Funeral expenses were special damages. Because no schedule had been included in or attached to the claim form or statement of case, Part 8.10(4) required an amendment.
3. Meaning of “change”. Part 20.1(3) referred to a change to the pleading itself. It was not confined to a fundamental alteration in the character of the case. Adding particularised heads of loss where none previously appeared was plainly a change. The words “change” and “amend” were used interchangeably in Part 20.1. A correction such as a typographical error might fall outside the rule.
4. Overriding objective and statutory powers. The overriding objective required consideration of justice, expedition and proportionate use of resources, but did not support a strained interpretation based solely on absence of prejudice. Section 20 of the Supreme Court of Judicature Act concerned substantive remedies and could not aid interpretation of the procedural code. The Board also considered the stricter regime to reflect Trinidad and Tobago’s need to combat a laissez-faire litigation culture, as discussed in Trincan Oil Ltd v Schnake.
5. Particulars. Where a pleading already contains allegations sufficiently made to satisfy Part 8, further particulars may be supplied by further information or witness statement without amendment. That principle did not assist the claimant because the heads of loss had not been pleaded.

The Board recommended that the Rules Committee consider whether Part 20.1 should be relaxed towards the approach under Part 17 of the England and Wales Civil Procedure Rules.

• Privy Council: Appeal dismissed.
• Court of Appeal of Trinidad and Tobago: Reversed the decision of Bereaux J and refused permission to re-amend.
• High Court of Trinidad and Tobago: Bereaux J allowed the claimant’s application to re-amend her statement of case.