Montserrat Reporter Ltd et Al v Osborne

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Bishop, C.J.
• Judgment Date: 16 May 1990
• Neutral Citation: MS 1990 CA 1
• Docket Number: Civil Appeal No. 2 of 1990
• Date: 16 May 1990

Court of Appeal

Bishop, C.J. (ag.); Moe, J.A.; Joseph, J.A. (ag.)

Civil Appeal No. 2 of 1990

Montserrat Reporter Ltd. et al

and

Osborne

Appearances:

L. Moore for the Appellants.

C.O.A. Phillips, Q.C., and J. Kelsick for the Respondent.

Civil practice and procedure — Witness — Application for witness to file a Notice of Intention for a written statement to be submitted instead of an oral presentation because witness was overseas — Counter notice filed pursuant to r. 26 of O. 38 of RSC (1970) — Case remitted to lower court so that it could deal with the counter notice filed — Appeal dismissed.

1 Bishop, C.J. (AG.): On the 22nd February 1990, the solicitor for John Alfred Osborne, the respondent in this appeal, filed a Notice of Intention to give a statement made by one Adolpho Ferrer Luchessi in evidence at the trial of Suit No. 82 of 1988, by virtue of the provisions of Order 38, rules 21 and 22(2) of the Rules of Supreme Court of England. The statement was contained in a letter dated 26th July 1988. The Notice of Intention also set out particulars in relation to the statement and indicated that the maker could not be called as a witness at the trial because he was “beyond the seas”.

2 The Notice of Intention was served upon and accepted by the solicitor for the appellants in this appeal, namely: The Montserrat Reporter Ltd., David Edgecombe, editor of Montserrat Reporter, and David Edgecombe in his personal capacity. The solicitor acted upon that Notice and filed a Counter Notice under Rule 26 of the same Order 38 of the Rules of Supreme Court of England. The Counter Notice stated “that at the trial of the action the defendants require that Adolpho Ferrer Luchessi, of whom particulars are contained in your Notice…… be called as a witness”. The Counter Notice also set out the contention of the defendants that Adolpho Luchessi could and ought to be called as a witness because “although he is beyond the seas he resides in Puerto Rico and can, without difficulty be brought to Montserrat”; and further, that the purported evidence in the document ought not to be admitted without the opportunity being given to cross-examine the maker.

3 It is clear that this Counter Notice, which was supported by an affidavit, raised an issue regarding the alleged reason in the Notice of Intention, for not calling Adolpho Luchessi as a witness at the trial.

4 In March 1990 when the matter came before a judge in Chambers Counsel for the appellants stated that he was seeking directions on his application in respect of the statement of Adolpho Ferrer Luchessi. He sought directions that the respondent be not allowed to adduce the statement without calling the maker as a witness. Counsel also informed the Judge that the respondent's solicitor had complied with Rule 21 of that Order 38 and that the Counter Notice was served under Rule 26 of that Order. He then advanced the following reasons for not allowing the statement to be given in evidence:

(1) although the maker is beyond the seas there is easy communication between Montserrat and Puerto Rico (2) it would be an injustice to admit the statement without an opportunity to cross-examine its maker (3) the statement is purported to be signed by the maker but the signature is not certified, and (4) it purports to be addressed to His Excellency the Governor.

5 From the Record the learned Judge was asked to decide the issue before him on the basis that Order 38, rule 21 et seq. applied in Montserrat.

6 Learned Counsel for the respondent also appeared before the Judge in Chambers, and opposed the application in the Counter Notice. He referred to section 12 of Cap. 25 of the Laws of Montserrat and submitted that the provisions of the Civil Evidence Act, 1968, of England,...