HEARING of the constitutional motion, filed on behalf of former finance minister Karen Nunez-Tesheira, continued yesterday in the Port of Spain High Court.
Nunez-Tesheira's attorneys are challenging the constitutionality of a provision in the Civil Procedure Rules (CPR) 1998 which has been the source of much controversy.
The CPR, in particular rule 26.7, gives timelines by which lawyers must file documents and sets out a specific procedure which can be used to apply to the court for relief, from penalties, when lawyers fail to comply with the fixed timelines in civil litigation.
The legal challenge was initiated after attorneys representing Nunez-Tesheira in a million-dollar negligence lawsuit, filed against the Gulf View Medical Centre, arising out of the death of her husband Russell Tesheira, failed to meet a deadline for the filing of documents.
Should the court rule against Nunez-Tesheira being able to file further affidavits, it may bring to an end her claim against the nursing home, urologist Dr Lester Goetz and anaesthesiologist Dr Crisen Jendra Roopchand for close to $20 million.
Russell Tesheira, a CLICO insurance executive, was a patient at the Gulf View Medical Centre and died on April 13, 2004, shortly after undergoing surgery. He was 53.
Also joined in the constitutional motion against the Attorney General, is the Law Association of Trinidad and Tobago (LATT) which is seeking to have clarified the approach to be adopted by the court in the construction, application and lawfulness of rule 26.7 of the CPR.
Attorney Fyard Hosein SC, who is representing the LATT, argued before Justice Vasheist Kokaram yesterday, that 26.7 deprives judges of a judicial discretion in the application of the rules even when litigants have good reason for not complying with the deadlines.
Hosein said there are four preconditions which an applicant must meet before any relief from sanctions can be granted.
He said the application for relief must be made promptly, the failure to comply must not be intentional, there must be a good explanation for the breach and the party in default must have generally complied with all other relevant rules, practice directions, orders and directions.
Hosein said where such preconditions have been met, the court may then consider granting relief and, in so doing, must have regard to the interests of the administration of justice, whether the failure to comply was due to the party or his attorney, whether the failure to comply has been or can be remedied within a reasonable time, and whether the trial date or any likely trial date can still be met if relief is granted.
Representing Nunez-Tesheira are attorneys Douglas Mendes SC, and Nyree Alfonso, while the Office of the Attorney General is being represented by attorney Russell Martineau who is expected to respond today.