PRACTICE |
Discovery |
Royal Bank of Scotland plc v. Golden Trinity (The)
T-32-99, T-38-99, T-119-99
Hargrave P.
16/6/00
6 pp.
Claimant (Tramp Oil & Marine Ltd.) in determination of priorities to ship sale proceeds seeking to strike out affidavits or to require better prepared witness for cross-examination--Robert Manners of Bank of Scotland swore three affidavits in connection with sale of three ships--Affidavits also containing background material relevant to issue of priorities--Subsequently Andrew Morgan of Bank of Scotland swore six affidavits--Affidavits largely corporate affidavits--Tramp Oil agreed with Bank of Scotland to examine only Mr. Morgan--Despite substantial preparation, definite gaps in Mr. Morgan's knowledge--Tramp Oil seeking further cross-examination, preferably of Mr. Manners--Second witness for cross-examination, as opposed to second witness for examination for discovery, most unusual--In view of corporate nature of affidavits, issue analogous to second discovery witness when first witness not able to inform himself adequately so as to give objectively satisfactory discovery--Test in Westcoast Transmission Co. v. Interprovincial Steel & Pipe Corp. Ltd. (1984), 59 B.C.L.R. 43 (B.C.S.C.) whether full inquiry into all matters relevant to issues raised in pleadings and whether those inquiries answered either of witness's own knowledge or upon his informing himself--To show examination for discovery unsatisfactory, necessary to demonstrate questions asked not answered, or answers given incomplete, unresponsive or ambiguous--Considering all circumstances, cross-examination unsatisfactory not only because questions not answered, but also because some answers clearly wrong--Witness showed substantial lack of basic knowledge both as to content of affidavits and as to basic facts surrounding Bank of Scotland itself--Second representative of Bank of Scotland ordered produced for cross-examination.