Loretta Frett (as Executor of the Estate of Jeuel Simeon Frett, deceased) v Attorney General of the Virgin Islands and Another

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 26 January 2010
• Court: High Court (British Virgin Islands)
• Docket Number: BVIHCV2007/0137
• Date: 26 January 2010

IN THE HIGH COURT OF JUSTICE (CIVIL)

BVIHCV2007/0137

Between

Loretta Frett (As Executor of the Estate of Jeuel Simeon Frett, deceased)

Claimant

and

Attorney General of the Virgin Islands

BVI Health Services Authority

Defendants

Appearances:

Dr. J.S. Archibald QC and Ms. Anthea Smith for the Claimant

Mr. Baba Aziz for the First Defendant, the Attorney General of the Virgin Islands

Mr. Gerard Farara Q.C. and Ms. Tamara Cameron for the Second Defendant, BVI Health Services Authority

CATCHWORDS

Application for summary judgment — test to be applied — deceased died of mesothelioma allegedly contracted during course of employment with government — deceased's employment with government transferred to second defendant by virtue of statutory enactment — factual issues to be tried — matter should proceed to trial — preliminary legal issue of whether there was any relationship between deceased and second defendant when deceased was allegedly exposed to asbestos particles — sections 28 and 29 of the BVI Health Services Authority Act, 2004 applied — summary judgment granted — trial to proceed solely against Attorney General

HEADNOTE

The claimant claims against both defendants for damages under the Causes of Action (Survival) Act and the Fatal Accidents Act as well as interest and costs. The particulars of the claim allege that the deceased developed mesothelioma caused as a result of his exposure to asbestos particles while in the employment of the BVI Government during the period January 2001 and June 2001. On 22 September 2006, he died at the age of 56. It is also alleged that at no time whatsoever, prior to January 2001 or after June 2001, was the deceased otherwise exposed to asbestos and that he did such work after being instructed to do so by an employee of the Health Department of the BVI. The claimant, as executor of her deceased husband's estate, claims that both defendants were negligent and/or in breach of the contract of employment.

Pursuant to CPR 15, the second defendant applies for summary judgment on the basis that the claimant's claim has no real prospect of success. The second defendant admits that the deceased was employed by the BVI Government by virtue of the BVI Health Services Authority Act, 2004 and that the deceased's employment was subsequently transferred to the service of second defendant. However, the second defendant denies that it is liable for the illness and subsequent death of the deceased and argues that none of the acts which led to the deceased's illness and subsequent death took place during the period when the deceased was in its employment. The second defendant further argues that whilst the deceased's employment was transferred to it, none of the liabilities or duties owed by virtue of the previous employment contract passed from the Government to it. The second defendant relies on section 28 of the BVI Health Services Authority Act for its full terms and legal effect. The second defendant also alleges that the claimant's cause of action arose on a date and time when there was no contractual relationship between it and the deceased as the deceased's contract of employment was transferred on 11 November 2004. The second defendant admits that there are conflicting factual issues which are fit for trial but submits there is a legal issue to be dealt with summarily with regards to its relationship with the deceased when he was allegedly exposed to asbestos.

HELD:

• (1) There is a multitude of factual issues to be tried. In such a case, the claim should proceed to trial. However, the preliminary legal issue raised by the second defendant, of whether there was a relationship between the deceased and the second defendant at the date when the deceased was allegedly exposed to asbestos particles in 2001, if resolved in the second defendant's favour, will summarily dispose of the claim against the second defendant.

• (2) Section 28 of the BVI Health Services Authority Act applies to the deceased. The section clearly limits the relevant date of employment of the deceased to the date of the coming into force of the BVI Health Services Authority Act which is 11 November 2004 and not a date prior to that, i.e., 2001, when the deceased is alleged to have been exposed to asbestos particles.

• (3) It is plain that section 28 does not fix the second defendant with or transfer any liabilities of the Government which arose prior to the coming into force of the Act.

• (4) A claimant's duty is to set out in the claim form or in the statement of claim a statement of all the facts on which the claimant relies. A claimant should properly plead his case and since section 29 was not pleaded, the court should not countenance such practice.

• (5) Out of an abundance of caution, section 29 is addressed. The section is plain and unambiguous. It is clearly distinguishable from section 28. It deals with the Transfer of Government contracts of employment and service to the second defendant and consequently, it has no application to the present case. Indeed, section 29 operates to the express exclusion of the classes of persons referred to in section 28 and since the claimant admits that section 28 was applicable to the present case, by extension, she admits to the exclusion of section 29.

• (6) Applying section 28, there was no contractual relationship between the second defendant and the deceased at the time when the deceased was allegedly exposed to asbestos in 2001.

• (7) This is an appropriate case to be disposed of summarily. The second defendant has shown that the claim against it has no real prospect of success.

Cases referred to and considered in the judgment

• (1) Swain v Hillman and another [2001] 1 All ER 91.

• (2) Boston Life and Annuity Company Limited v Dijon Holdings Limited (BVIHCV2006/0070)—unreported.

• (3) Alfa Telecom Turkey Limited v (1) Cukurova Finance International Limited (2) Cukurova Holdings AS, HCVAP2009/001, in the Court of Appeal of the Territory of the Virgin Islands. Judgment delivered on 16 September 2009.

• (4) Three Rivers District Council v Bank of England (No. 3) [2001] 2 All E.R. 513.

• (5) The Bank of Bermuda Limited v Pentium (BVI) Limited and Landcleve Corporation, BVI Civil appeal No. 14 of 2003, Judgment delivered on 20 September 2004.

• (6) Texan Management Limited et al v Pacific Electric Wire & Cable Company Limited [2009] Privy Council Appeal No. 0018 of 2009—from the Eastern Caribbean Court of Appeal (British Virgin Islands)—Judgment delivered on 26 November 2009.

Introduction

HARIPRASHAD-CHARLES J

1 The key issue which arises in this application is whether the claim brought by the claimant, Loretta Frett (as Executor of the estate of her late husband, Jeuel Simeon Frett (‘the deceased’)) against the second defendant, BVI Health Services Authority (‘BVIHSA’) should be struck out as not disclosing any reasonable ground for bringing the claim and that Mrs. Frett has no real prospect of succeeding on the claim. In short, BVIHSA seeks an order for summary judgment on its defence pursuant to Part 15 of the Civil Procedure Rules 2000 (‘ CPR 15’).

The Summary Judgment Test

2 CPR 15 sets out a procedure by which the Court may decide a claim or a particular issue without a trial. CPR 15.2 sets out the grounds for summary judgment. It provides:

‘The court may give summary judgment on the claim or on a particular issue if it considers that—

• a) the claimant has no real prospect of succeeding on the claim or the issue; or

• b) the defendant has no real prospect of successfully defending the claim or the issue.’

3 Under CPR 15.2, the court has a very salutary power to be exercised in a claimant's favour or, where appropriate, in a defendant's favour. It enables the court to dispose summarily of both claims and defences which have no real prospect of being successful.

4 CPR 15.2 (a) states that the court may give summary judgment on a claim or an issue if it considers that the claimant has no real prospect of succeeding on the claim or the issue. In Swain v Hillman and another1, Lord Woolf MR said that ‘the words “no real prospect of succeeding” do not need any amplification, they speak for themselves. The word “real” distinguishes fanciful prospects of success.’ At page 95b, Lord Woolf MR went on to say that summary judgment applications have to be kept to their proper role. They are not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. Further, summary judgment hearings should not be mini-trials. They are simply to enable the court to dispose of cases where there is no real prospect of success. The court has to caution itself against the exercise of a preliminary trial of the matter without discovery, oral examination and cross-examination.

5 In Boston Life and Annuity Company Limited v Dijon Holdings Limited2, this court, in considering an application for summary judgment cited the elucidating judgment of Judge LJ in Swain, at page 96a–c where he said:

‘To give summary judgment against a litigant on paper without permitting him to advance his case before the hearing is a serious step. The interests of justice overall will sometimes so require. Hence the discretion to the court to give summary judgment…. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that

success is improbable. If that were the court's conclusion, then it is provided with a different discretion, which is that the case should proceed but subject to appropriate conditions imposed by the court.’

6 Therefore, the court has to be cautious since it is a serious step to give summary judgment. In Alfa Telecom Turkey Limited v (1) Cukurova Finance International Limited (2) Cukurova Holdings AS3, Gordon J.A. [Ag.] quoted with approval the following dicta...