The trial which was originally scheduled for only one day, took
place over two days. The first day of trial was August 28, 2013. On
that day the court heard from two witnesses. The first witness gave
evidence in chief and was cross-examined by the defendants. The
second witness then gave their evidence in chief. At this time it
was determined that a second day of trial would be necessary. The
second date was scheduled for July 2, 2014.
The defendants misidentified the date for the continuation of
trial and as a result failed to attend on the second date. The
court paged the defendants in the courthouse when they failed
to show. However, the court did not make any attempt, by telephone
or otherwise, to ascertain why the defendants had failed to show.
Instead, the presiding deputy judge made the decision that the
trial would continue in the absence of the defendants. Ultimately,
the court awarded judgment in favour of the plaintiffs.
On appeal to the Divisional Court it was held (among other
things) that the trial judge's decision to proceed to conclude
the trial and make findings of fact on an incomplete evidentiary
record, without giving any due regard to the defendants'
unexplained absence constituted a palpable and overriding error.
The Divisional Court ordered that the matter be sent back for
another trial, before a different judge.
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