Aaron Parris Construction Inc. v Tristan Broomes
| Jurisdiction | Barbados |
| Judge | Burgess JA |
| Judgment Date | 09 October 2018 |
| Neutral Citation | BB 2018 CA 7 |
| Court | Court of Appeal (Barbados) |
| Docket Number | Civil Appeal No. 12 of 2013 |
| Date | 09 October 2018 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
The Hon. Sandra P. Mason, The Hon. Andrew D. Burgess and The Hon. Kaye C. Goodridge, Justices of Appeal
Civil Appeal No. 12 of 2013
Mr. Elliott D. Mottley QC, and Ms. Marilyn D. Moore for the Appellants.
Mr. Ivan A. Alert for the Respondent.
Civil practice and procedure — Subsubject: Whether court had jurisdiction to hear evidence of witness after close of claimant and defendant case — Functions of a judge — Whether judge's decision to recuse was legally justified — Jurisdiction of appellate court to hear recusal matter — Duty of judge to sit — Presumption of impartiality — Judge bias — Porter v. Magill test — Judicial independence.
This is an appeal arising out of proceedings before Richards J in the High Court on that court's jurisdiction to hear the evidence of a witness after both the claimant and the defendants had closed their case, made written and oral submissions on the evidence adduced during the trial, and judgment had been reserved. However, the dispositive issue on appeal is Richards J's decision to recuse herself from the case on her own motion following exchanges between herself and Mr. Mottley QC, counsel for the appellant, on the court's jurisdiction to hear that evidence.
Before us, the appellant seeks orders (i) that Richards J's decision to recuse herself was not legally justified and that that decision be “overturned”; and (ii) that she be ordered to render her judgment solely on the evidence that was before her during the trial. Because of our resolution of the first order sought, consideration of the merits of the second order sought is rendered otiose.
On 8 December 2006, the respondent/claimant, Tristan Broomes, (Broomes) was run down by the first appellant/first defendant's Suzuki van, Registration Number S893, which was being driven by the second appellant/second defendant, Mr. Timothy Edwards. Broomes, who was then a school boy, was run down while he was walking across Mount Standfast Main Road, a north south road in the Garden, St. James. S893 was overtaking a stationary minibus, Registration Number B135, when Broomes was run down.
By writ of summons and statement of claim filed on 13 June 2008, Broomes brought an action claiming negligence and breach of statutory duty on the part of the appellants which they denied in their defence filed on 28 November 2008. In that defence, the appellants asserted that the accident was caused wholly by the negligence of Broomes or alternatively, that he contributed to the accident.
The case was heard before Richards J on 19, 21, and 27 June 2012.
On 27 June 2011, before the first date of hearing, the respondent had caused to be filed a witness summary for an intended witness, namely, the driver of B135. This witness was not found and was not called by the respondent up to the last day of the trial on 27 June 2012. On that date, both sides submitted closing arguments including written submissions.
It is the events which transpired thereafter that provoked this appeal.
Sometime in July 2012, Richards J contacted Mr. Alert, counsel for the respondent by telephone and informed him that she required the attendance of the driver of B135. Richards J indicated in that telephone conversation that she would likewise contact counsel for the appellants and apprise them of her requirement.
The judge did contact counsel for the appellants by telephone and apprised him of her requirement. Counsel for the appellants did not raise any objection to the judge's requirement at that time.
The efforts of the respondent, a bailiff on the respondent's behalf and the assistance of the police proved unsuccessful in locating the driver of B135. Eventually, however, a relative of the respondent serving in the Royal Barbados Police Force was able to find the driver of B135 and secure his attendance for the making of a witness statement. That statement was filed and served on counsel for the appellants in March 2013. It was learnt at this time that the correct name of the driver of B135 was Lennox Hewitt.
Following the service of the witness statement, by letter dated 19 April 2013, counsel for the appellants wrote to counsel for the respondent as follows:
“Further to your service of the witness statements of Lennox Hewitt. Kindly confirm you have arranged for this matter to be set down before Richards J.”
By letter dated 26 April 2013, counsel for the respondent acknowledged receipt and replied to the 19 April 2013 letter as follows:
“Mr. Patterson Boyce Clerk to Madam Justice Richards indicated that he conferred with your office and that the date set was 8 th July, 2013. Upon being so informed I had cause to adjust the date of 11 th July, 2013 he had previously informed me of.”
On 8 July 2013, the date set for hearing and examination of the driver of B135, counsel for the appellants objected to the re-opening of the case and hearing of the witness. We consider it advantageous to recount verbatim at this point the exchange between counsel for the appellants and Richards J at that hearing.
“THE COURT: Yes, Mr. Mottley.
MR. MOTTLEY: One of the first things that I learnt as a young barrister in chambers was that as an advocate, you had a responsibility to your client and in performing that responsibility, counsel had to do so fairly and fearlessly and subject to, once you remained within the bounds of the tradition of the Bar. It was your duty to advocate and to represent your client's interest.
Pursuant to that, My Lady, Counsel for the plaintiff has a duty to represent his client. Counsel for the defendant has a duty to represent his client.
There is a role for the judge in civil cases and that role as I understand it, as a practitioner for all these 52 years, is to listen to the evidence put before the judge and to render a decision on that evidence, on the evidence that was called before the court whether it be by viva voce or whether it came from documentary evidence that was introduced put into evidence. And within that ambit, the judge must render a decision. It is not the function of the judge to go outside that ambit however desirous it may seem to be to the judge, for the judge has to remain within that narrow ambit, that is, evidence is led by the Plaintiff/Claimant as it is now called. There is cross-examination and then the Claimant's case is closed and equally the Defendant calls evidence and the Defendant's case is closed and submissions are made and it is at that point that the judge has to make a decision.
It is no function of the judge first of all to ascertain the truth of anything, any accident. This is not an inquisition. There are those cases where as a Coroner's inquiry where that function is specifically given to the Coroner to ascertain how, why and in what circumstances a person came to meet his or her death. And in those circumstances, it is open to a judge -- it's open to a Coroner and sometimes it is a judge as you would see in certain retired judges or even judges in England, but it is at a Coroner that that function is performed. It certainly is not the role of a High Court judge to go beyond the ambit of the evidence led and seek to find out how an accident occurred.
My Lady, when you come to sum-up to a jury in criminal cases, the judge from time to time finds it necessary to tell the jury remind the jury: “Your function is to listen to the evidence and to render a verdict based on the evidence led” not on anything else outside that ambit and it is not the role of the Criminal Justice System, for instance, to find out the truth as to how a crime is committed. That is not the role of the Criminal Justice System. The role of the Criminal Justice System is to decide whether on the evidence led before it, whether a person is guilty. And equally, in civil cases, the function of the judge is to determine on the evidence led, not on any person going outside trying to ascertain who or what really happened and the dangers of that are so evident in this case.
My Lady, as far as I know, after this matter is completed, somehow or the other, and I am not willing to speculate, I heard what my learned friend said about the witness, how the witness came about and My Lady, it is an extremely dangerous thing for any judge after the case has been completed, and all the witnesses and if you look, if you just look, if you look at this affidavit which is attached, to which a statement from this witness is attached, it is the most despicable thing that could ever happen.
THE COURT: Something has been filed in relation to -
MR. MOTTLEY: Yes, My Lady, it has been filed.
THE COURT: I have said I have not seen.
MR. MOTTLEY: I know your ladyship wouldn't see it because it is set for the 23 rd. But my learned friend didn't tell you that it was set for the 23 rd September but what I am saying, it shows how dangerous it is because the entire Case.
THE COURT: Just a minute. Proceed.
MR MOTTLEY: You have a witness now that they are now trying to call ex post facto, the whole case is finished. It was within their province if they wanted to, one, not to bring on the case without the witness, to ask for an adjournment. Secondly, if the witness couldn't be found at that stage, instead of closing their case, it was opened to them to say they want a further adjournment in order to seek to get this witness. But you cannot and it is most improper because the litigation must be brought to an end. We go through a whole case, we do a whole case and now to find that he is seeking to reopen a case and to … and what is so bad about it, I would use no other word, is that he is attempting to put a completely different case than that which has been pleaded...
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