Crick and another v Kurt Brown (Trinidad and Tobago)

Under the Civil Procedure Rules 2016, a case-management direction need not carry a predetermined sanction where future circumstances make that impracticable. Non-compliance remains subject to the court’s general case-management power and the overriding objective. The court may refuse a late adjournment and, where an appellant gives no notice of its case, prevent substantive oral submissions and dismiss the appeal. It must, however, assess fairness in context. Where the respondent’s own failure to prepare materially caused unreadiness, the appellant should not be shut out without considering whether written or oral submissions can fairly be heard. The overriding objective guides the decision but does not require a factor-by-factor checklist or elaborate reasons in a straightforward case.

These two appeals arose from the Court of Appeal of the Republic of Trinidad and Tobago’s dismissal of appeals after failures to comply with directions for written submissions. In the first, the appellants filed nothing and sought an adjournment on the hearing day. In the second, the appellant filed submissions late, while the state respondents also failed to prepare because counsel was instructed at the last minute. The Privy Council considered whether the absence of a specified sanction under Part 26.6(1) of the Civil Procedure Rules 2016 prevented the Court of Appeal from refusing an adjournment, excluding oral submissions or dismissing an appeal. It also considered whether fairness required a different approach where both sides contributed to the unreadiness.

Disposition. The Cricks’ further appeal was dismissed. Mr Philip’s appeal was allowed and remitted to the Court of Appeal.

1. Under the CPR, sanction has a precise meaning. It is a consequence stipulated by a rule or court order for breach of the rule or failure to comply with the order. The Board relied on Attorney General of Trinidad and Tobago v Keron Matthews [2011] UKPC 38, paras 15–16, and Roland James v Attorney General of Trinidad and Tobago Civil Appeal No 44 of 2014, para 19. Where directions specify no sanction, the court retains its general case-management power under Part 26.1, exercised to further the overriding objective in Part 1.
2. Part 26.6(1) requires the court, whenever practicable, to specify the consequence of non-compliance. That requirement is not absolute. A court may properly give conventional directions without a predetermined sanction where the circumstances affecting the just response cannot reasonably be predicted. Non-compliance nevertheless carries risks, including refusal of an extension of time or other detriment imposed through case management.
3. In the Cricks’ appeal, the Court of Appeal was not required to use its discretionary power under Part 64.13 or to give notice of a possible strike-out. It was entitled to refuse an adjournment sought on the hearing day and to prevent substantive oral submissions where no notice had been given to the respondent and the court had been deprived of proper preparation. Since no submissions were made in support of the appeal, its dismissal was a substantive determination, not a procedural strike-out. The court also needed no factor-by-factor checklist or elaborate reasons.
4. In Mr Philip’s appeal, the Court of Appeal acted too hastily. His written submissions had been available to the respondents and the court for weeks, and the respondents’ unreadiness was materially attributable to their own failure to instruct counsel in time. Fairness under the overriding objective therefore required consideration of whether Mr Philip’s counsel could present substantive submissions, either following an extension of time or orally despite refusal of a formal extension.
5. The Board had insufficient material to determine the merits of Mr Philip’s underlying appeal and could not conclude that it was bound to fail. The case was remitted to the Court of Appeal to reconsider the appeal, including whether substantive submissions should be permitted.

• Privy Council dismissed the Cricks’ appeal, allowed Mr Philip’s appeal and remitted his case to the Court of Appeal.
• Court of Appeal of the Republic of Trinidad and Tobago dismissed both appeals after addressing failures to comply with directions for written submissions. In the Cricks’ case it refused an adjournment and substantive oral submissions. In Mr Philip’s case it refused an extension of time and dismissed the appeal.
• High Court of Trinidad and Tobago dismissed Mr Philip’s constitutional claim on 11 October 2013, on grounds of undue delay and on the merits. Mr Brown had succeeded at trial against the Cricks, obtaining possession and damages for trespass.