Chiverton Construction Company Ltd v James Turnbull
| Jurisdiction | British Virgin Islands |
| Judge | R. Sandcroft, M. |
| Judgment Date | 04 March 2020 |
| Judgment citation (vLex) | [2020] ECSC J0304-2 |
| Docket Number | Claim Numbers: BVIHCV2015/0143 |
| Court | High Court (British Virgin Islands) |
| Date | 04 March 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Master Ricardo Sandcroft [Ag]
Claim Numbers: BVIHCV2015/0143
Ms. Nellien P. Bute of Counsel for the Claimant
Ms. Dancia Penn Queen's Counsel for the Defendants
R. Sandcroft, M. [ Ag.]: This is an application by the Defendants for the strike out and dismissal of the Claimant's case on the basis that the Claimant's case is an abuse of process. The application is strenuously resisted by the Claimant.
The Claim Form and Statement of Claim were served on the Defendants on the 22 nd day of November, 2015. The Defendants filed an Acknowledgement of Service on the 26 th day of November, 2015, and a Defence and Counterclaim were filed on behalf of the 1 st, 3 rd and 4 th Defendants on the 7 th day of December, 2015.
On the 24 th day of December, 2015 an Amended Defence and Counterclaim were filed on behalf of the 1 st, 3 rd and 4 th Defendants. The Claimant filed an Amended Claim Form and an Amended Statement of Claim pursuant to an Order of Master Agnes Actie, as she then was, on the 11 th day of June, 2019 and after a full hearing on the 10 th day of April, 2019.
On the 15 th day of July, 2019, the 1 st, 3 rd and 4 th Defendants filed an Amended Defence and Counterclaim. It is to be noted that the foregoing was pursuant to the said Order of Master Actie.
Attorney-at-Law for the Defendants, Miss Dancia Penn Q.C. argued that the manner in which the Claimant elected to and continues to deal with his Claim against the Defendants amounts to an abuse of the Court's process, and is a contravention of the Civil Procedure Rules, 2000 and the processes of the Court and the legal system as a whole. The manner in which the Claimant has been dealing with its case contravenes the letter and the spirit of the Overriding Objective of the Civil Procedure Rules. In particular, the manner in which the Claimant has dealt with the case at bar contravenes:
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(a) CPR 1.1 (1) which requires the Court to deal with cases justly;
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(b) CPR 1.1 (2) which prescribes what dealing with cases justly means;
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(c) the conduct of the Claimant has been such since it filed its Claim on the 28 th day of May, 2015, that several of the factors prescribed in CPR 1.1 (2) have been and continue to be contravened. In particular, CPR 1.1 (b) which is saving expense; CPR 1.1 (d) which is ensuring that the case is dealt with in an expeditious manner, and CPR 1.1 (e) which requires the Court to ensure the allotment of a case for an appropriate share of the Court's resources, whilst taking into account the need to allot resources to other cases.
Ms. Penn Q. C. also submitted that the Claimant had, by its sustained conduct, failed in its duty to the Court under CPR 1.3 to assist the Court to further the overriding objective. She also submitted that in the circumstances as they have evolved, and the Claimant's intractable approach to and handling of its Claim, there is no end in sight to this expensive and protracted litigation for the 1 st, 3 rd and 4 th Defendants, save for the intervention of the Honourable Court and the grant of the Orders sought in this strike out application. According to Ms. Penn Q.C., the Claimant has resisted and ignored the repeated admonitions of several different Judges and a senior mediator to seek to resolve the matter. All of this in the face of continued efforts of the 1 st, 3 rd and 4 th Defendants through their own desire and volition and additional adherence to the guidance of the Court to settle the matter.
Ms. Penn Q.C. further submitted inter alia that the 1 st and 4 th Defendants reside in the United States and continue to incur substantial and other legal expenses to this unwarranted and expensive litigation. It was also submitted, that all of the Defendants had indicated their intention to pay the Claimant the sum originally claimed and some further amounts, and to withdraw their Counterclaim and Amended Counterclaim. It was further stated that the Claimant's response was to terminate the services of his lawyers and retain new counsel, causing the matter to continue at more time and added costs.
Ms. N. Bute for the Claimant, submitted that the Claimant, in refusing to accept an unreasonable offer by the Defendants after several discussions or his right to Counsel do not amount to an abuse of the Court's process and so warranting its Statement of case to be struck out. Ms. Bute also submits that there is not a shred of evidence to suggest that there was an abuse of the Court's process or any inordinate or undue delay as claimed by the Defendants.
Ms. Bute further submits that the overriding objective of the rules of the CPR (as amended 2000) is to ensure that cases are dealt with justly, ensuring that justice is done by all the parties involved, Ms. Bute states that if the Claim is struck out at this stage, the Claimant would be the one to be prejudiced, the Claimant would have been deprived of the right to a hearing on the merits of the case before the Court. The Claimant therefore submitted that the present Application be dismissed to further the overriding objective of the CPR, that costs be granted to the Claimant and that further directions be given for the matter to proceed to trial.
Whether this Court should strike out the claim and dismiss the claim on the basis of an abuse of process.
The Civil Procedure Rules rule 26.3 (1) provides:
“26.3(1) In addition to any other power under these Rules the court may strike out a statement of case or a part thereof if it appears to the court that –
(a) …
(b) …
(c) the statement of case or the part to be struck out is an abuse of process of the court or, is likely to obstruct the just disposal of the proceedings; or
(d) …
On rule 26.3(1) in Baldwin Spencer v. The Attorney General of Antigua and Barbuda et al 1 the Court of Appeal explained that the approach is not a factual investigation on the truth of the pleadings, but whether taken at its highest there is disclosed a cause of action. Byron JA said:
“This summary procedure should only be used in clear obvious cases, which it can be seen on the face of it, that the claim is obviously unsustainable, cannot succeed or in some other way is an abuse of the process of the court. The court is not concerned at this stage with the truth or otherwise of the pleadings.”
In the early days of CPR 1998 in the United Kingdom, in McPhilemy v. Times Newspapers Ltd. 2 Lord Woolf MR gave guidance upon the statements of case (and the Court dares to add similarly where an affidavit is used to support a fixed date claim instead of a statement of claim) under the CPR 1998 regime when he said:
“The need for extensive pleading including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of the party's witness statements, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader.”
The court's power to strike out statements of case is exercisable under its inherent jurisdiction and is also governed by rules of court. In Biguzzi v Rank Leisure Plc [1999] 4 All ER 934, the English Court of Appeal noted that the English Rules of Civil Procedure, 1999, confer a very wide discretion upon judges to strike out statements of case. According to Lord Woolfe MR:
“The fact that a judge has the power does not mean that in applying the overriding objectives the initial approach will be to strike out the statement of the case. The advantage of the CPR over the previous rules is that the Court's powers are much broader than they were. In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking the case out.”
However, the Court has frowned upon statements of claim or defence or parts therein that are frivolous and vexatious, that are likely to obstruct the just disposal of the proceedings.
In Blackstone's Civil Practice, 2010, the learned authors in commenting on Rule 3.4(2) (a) of the English Civil Procedure Rules, which is the equivalent of our CPR Rule 26.3(1) (c), state at paragraph 33.7 that:
‘Applications… may be made on the basis that the statement of case under attack fails on its face to disclose a sustainable claim or defence. Traditionally, this has been regarded as restricted to cases which are bad in law, or which fall to plead a complete claim or defence…”
In discussing the court's power to strike out pleadings, the learned authors of Halsbury's, Laws of England, 4~ Edition, at paragraphs 430–435, stated, inter alia, that:
“… the powers are permissive…and they confer a discretionary jurisdiction which the court will exercise in light of all the circumstances concerning the offending pleading… Where a pleading discloses no reasonable cause of action… it would be ordered struck out or amended, if it is capable of amendment… No evidence including affidavit evidence is admissible on an application on this ground and since it is only...
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