Balkissoon v Persaud and J.S.P. Holdings Ltd

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Jamadar, J.
• Judgment Date: 05 July 2007
• Neutral Citation: TT 2007 HC 146
• Docket Number: CV 00639 of 2006
• Date: 05 July 2007

High Court

Jamadar, J.

CV 00639 of 2006

Balkissoon

and

Persaud and J.S.P. Holdings Limited

Appearances:

Mr. A. Ramlogan for the claimant.

Mr. K. Kamta for the defendants.

Civil practice and procedure - Striking out — Abuse of process — Whether claim gave rise to a cause of action — Defendant's failure to pay sums owing to the claimant — Action for specific performance — Previous action had been commenced and dismissed — Dismissal was not on merits — No inexcusable or inordinate delay — Whether multiple proceedings were started with respect to the same claim — Application dismissed — Action to proceed to hearing.

Jamadar, J.

1 On the 14th March, 2006 the claimant, Danny Balkissoon, commenced this action by claim form and statement of case under the Civil Proceedings Rules, 1998 (CPR). On the 29th May, 2006 both defendants, in a joint defence, disputed the claim on two grounds only: (i) that it disclosed no cause of action against the second defendant, and (ii) that it was misconceived, vexatious, wrong and improper in law and an abuse of process. Particulars of the abuse of process were pleaded.

2 On the 9th February, 2007, at the first substantive case management conference, it was agreed, inter alia, that the abuse of process issue raised by the defendants would be dealt with as a preliminary issue. [See CPR, Part 26.1 (g), (h) and (w)] In furtherance of this agreement directions were given for the filing of written submissions with authorities. It was also agreed that this action would be determined by the outcome of this issue. When the matter came up for hearing on the 25th June, 2007 this court confirmed with counsel for the parties that the only issue being determined was that of abuse of process and that the outcome of this issue would also determine the outcome of the entire action. That is, if there was an abuse of the process of the court then the claimant's action would be struck out, [See CPR, part 26.2 (1)(b)] and if there was no abuse of process then the matter would proceed to judgment in favour of the claimant, on a date to be determined.

BACKGROUND

3 In March 2002 the claimant commenced H.C.A. No. 402 of 2002 under the Rules of the Supreme Court 1975 (RSC 1975) against the defendants. Subsequently the parties negotiated a compromise and the terms of this agreement were set out in a written agreement dated the 10th April, 2002. By that agreement the claimant agreed to sell his interest in the second defendant to the first defendant for $900,000.00; which sum was to be paid by the first defendant to the claimant as follows:

• (i) $100,000.00 upon execution of the agreement;

• (ii) $300,000.00 on or before the 10th May, 2002; and

• (iii) $500,000.00 on or before the 10th October, 2002.

4 Pursuant to this agreement the first defendant duly paid the claimant the first instalment of $100,000.00, and the claimant fulfilled his obligations set out at clause 4 of the agreement. The first defendant however failed and/or refused to pay any of the balance due to the claimant as had been agreed, and on the 13 ^thand 14th May, 2002 orally indicated to the claimant that he had no intention of honouring these obligations under the agreement. [All of these facts are taken from the claimant's statement of case, paragraphs 4 to 9, which have not been denied or responded to in any way in the defence filed by the defendants. All of the above facts have therefore been admitted by the defendants in this case. See in this regard Parts 10.5 and 10.6, CPR – defendant's duty to set out his case in his defence and the consequences of same.]

5 On the 17th May, 2002, in H.C.A. No. 848 of 2002, the claimant brought another action against the defendants and Action Tyre Ltd. based on the said agreement, seeking, inter alia, specific performance of it. Before this court it was agreed that the relief sought in that action was identical to what is sought in this matter. That action was also brought under the RSC 1975.

6 There was however no determination on the merits of H.C.A. No. 848 of 2002. And, what transpired in that case is at the heart of the abuse of the process of the court argument advanced in this matter by counsel for the defendants.

7 It would appear that in H.C.A. No. 848 of 2002, on the 17th May, 2002, Myers, J. granted certain interim injunctions against the defendants restraining them from disposing of certain assets. The defendants did not obey the order. On the 29th May, 2002 contempt proceedings were issued alleging breach of these injunctive orders. On the 13th June 2002 it was determined (by consent) before Myers, J. that there had been contempt of the court's orders. As a consequence a fine of $25,000.00 was ordered against Action Tyre Ltd. to be paid within 7 days and that this defendant pay the costs of the motion for contempt.

8 Prior to that, on the 10th June, 2002 a defence and counterclaim was filed by the defendants, which was amended on the 10th July, 2002. On the 22nd July 2002 a reply and defence to counterclaim was filed.

9 Then, on the 24th July, 2002 a bill of costs was filed by the claimant, which was finally taxed and the Registrar's allocatur issued on the 11th May, 2004. The reason for this delay in taxation appears to have been because the court's file was misplaced. Indeed, up to the 15th April, 2004 the claimant's attorneys were writing about this. [See p. 3 of the judgment of Mendonca, J.A. in Civ. App. No. 168 of 2004: “The respondent wrote to the assistant Registrar on three occasions complaining of the missing file. In the last letter dated April 15, 2004 the Attorney for the respondent pleaded with the assistant Registrar to ensure that the file be located so that the respondent could have his bill taxed.”]

10 On the 20th November, 2004 a stay of execution of the allocatur was granted to the defendants on an ex parte application. On the 25th November, 2004 the claimant applied to have the stay discharged and to reinstate the action and/or to grant leave to proceed in light of Order 3 Rule 6 of the RSC 1975. On that application, on the 5th April 2005, Gobin, J. discharged the stay of execution and ruled that the action was a subsisting one and that no leave to proceed was required under Order 3 Rule 6.

11 That aspect of the Order of Gobin, J. that dealt with Order 3 Rule 6 was appealed. On the 11th October, 2006 the Court of Appeal held that Gobin, J. was wrong to hold that the action was not captured by Order 3 Rule 6 and 6A, and that the proceedings had stood automatically dismissed on the 23rd July, 2004, two years after the last step taken by the claimant. [See the judgment of Mendonca, J.A. in Civ. App. No. 168 of 2004, at pages 15, 16, and 17, paragraphs 28, 30 and 32.]

12 In particular, Mendonca, J.A. had this to say: [See the judgment of Mendonca, J.A. in Civ App. No. 168 of 2004, para 15, paragraph 18.]

In the circumstances the outstanding bill of costs and the letters written by the Respondent to the Registrar in connection with the bills of costs should not be construed as a last step or last proceeding. They do not advance the matter to its trial or final determination. They are collateral steps that may be taken at any stage of the proceeding even after final judgment has been given in the matter.

13 However, prior to the delivery of the Court of Appeal's decision aforesaid, the claimant commenced the instant action by filing a claim form and statement of case on the 14th March, 2006 under the CPR – Claim No. CV 2006-00639. No steps were taken to serve these CPR proceedings on the defendants. [This action was filed and not served in order to avoid the expiration of the limitation period within which a suit could be brought on the agreement of the 10 ^th April, 2002, and because at the time the Court of Appeal had not as yet delivered its decision (in Civil Appeal. 168 of 2004 – heard on the 31 ^st May, 2006). See the transcript of the Court of Appeal hearing on the 31 ^st May, 2006 in Civil. Appeal No. 168 of 204, at pages 18 ad 26.] Yet somehow the defendants got word that this action had been filed, and thought it had not been served proceeded to enter an appearance on the 29th May, 2006, the very day on which they obtained the proceedings. Further, on the 7th April, 2006 the first defendant and Action Tyre Ltd. commenced an independent claim under the said agreement of the 10th April, 2002, seeking damages and other relief against the claimant and Active General Traders Ltd. - Claim No. CV 2006 – 00868. In this latter action a defence was filed by the claimant herein and Active General Traders Ltd. on the 15th August, 2006.

14 In fact, at the Court of Appeal (on the 31st May, 2006) counsel for the defendant attempted to argue this abuse of process point in light of the claimant's filing of this action while H.C.A. 848 of 2002 was subsisting and Civ. App. No. 168 of 2004 was pending. [See pages 6 and 7 of the transcript of the Court of Appeal hearing on the 31 ^st May, 2006. In fact, the Court of Appeal did not entertain the abuse of process argument, and opined (Archie, J.A.) that Order 3 Rule 6A was “not unduly harsh because it does say that you can come back once you are within the limitation period” – at page 26, lines 39–42.]

15 It was against this general background that the argument on the issue of the abuse of the process of the court was heard.

ANALYSIS

16 Paragraph 3 of the Defence [Filed on the 5 ^th October, 2006] in this action stated the particulars of the abuse of process as follows:

• (i) The claimant filed High Court 202 of 2002 against the defendants upon which a written compromise was agreed upon.

• (ii) Based on the written compromise agreement dated 10th of April, 2002 the claimant then filed HCA 848 of 2002 against the defendants and Action Tyre Ltd claiming a breach of that agreement.

• (iii) The last step taken by the claimant to advance his...