British-American Insurance Company Ltd v Lawrence Duprey

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice R. Rahim
• Judgment Date: 27 September 2018
• Neutral Citation: TT 2018 HC 199
• Docket Number: Claim No: CV2017-03494
• Court: High Court (Trinidad and Tobago)
• Date: 27 September 2018

IN THE HIGH COURT OF JUSTICE

Before the Honourable Mr. Justice R. Rahim

Claim No: CV2017-03494

Between

British-American Insurance Company Limited

Claimant

and

Lawrence Duprey

Defendant

Appearances:

Mr. B. McCutcheon instructed by Mr. A. Rudder and for the claimant

Mr. V. Lakhan-Joseph instructed by Ms. P. Ramsahai for the defendant

Civil Practice and Procedure - Application that the Defendant's Defence be struck out pursuant to Part 26.2(1)(c) of the CPR as it disclosed no or no reasonable grounds for defending the claim and/or that judgment be entered in favour of the Claimant on the claim pursuant to Part 15.2(a) of the CPR — Whether the Defence of the Defendant disclosed no grounds for defending the claim — Whether the Claimant should have been granted summary judgment against the Defendant.

Decision

1 On the 28 ^th February, 2018 the claimant filed a Notice of Application seeking the following relief;

• i. That the defendant's Defence be struck out pursuant to Part 26.2(1)(c) of the CPR as it discloses no or no reasonable grounds for defending the claim; and/or

• ii. Judgment be entered in favour of the claimant on the claim pursuant to Part 15.2(a) of the CPR; and

• iii. The defendant do pay the costs of the claimant on the prescribed basis.

2 In support of the claimant's application, the following affidavits were filed;

• i. Affidavit of Juan M. Lopez sworn to and filed on the 28 ^th February 2018 (“the Lopez Affidavit”); and

• ii. Affidavits of Ms. Traci H. Rollins sworn to and filed on the 28 ^th February 2018 (“the first Rollins Affidavit”) and the 18 ^th April, 2018 respectively (“the second Rollins Affidavit”).

3 In opposition to the application, the defendant swore to and filed an affidavit on the 4 ^th April, 2018.

Background

4 The court makes no findings of facts but has narrated the facts as set out by the parties herein to provide important background information for the purpose of understanding the claim and the competing arguments.

5 The claimant is a limited liability company incorporated under the laws of the Commonwealth of the Bahamas with its registered office located at the office of Lennox Paton Corporate Services Limited, 3 Bayside Executive Park, West Bay Street and Blake Road, P.O. Box N-4875, Nassau Bahamas. The defendant was at the material time a director of the claimant.

6 On the 22 ^nd December, 2011 the claimant filed proceedings against the defendant in the United States Bankruptcy Court, Southern District of Florida, West Palm Beach Division (“the Florida Bankruptcy Court”). The proceedings concerned breaches of fiduciary duties owed to the claimant by the defendant (“the Florida proceedings”).

7 On the 6 ^th January, 2012 the defendant was served with the Florida proceedings. According to the claimant, the defendant submitted to the jurisdiction of the Florida Court and/or participated in the Florida proceedings either in person or through Counsel.

8 On the 29 ^th November, 2016 the Florida Bankruptcy Court entered an Agreed Order in the Florida proceedings ordering that judgment on liability be entered against the defendant. Trial on damages took place on the 20 ^th July, 2017 and the Florida Bankruptcy Court ordered and adjudged that a final judgment for the sum of USD $122,636,450.34 be entered in favour of the claimant against the defendant (“the Judgment”).

9 According to the claimant, as the defendant did not file an appeal against the Judgment and the time for doing so has passed, the Judgment is a final order of the Florida Bankruptcy Court.

10 Consequently, by Claim Form filed on the 3 ^rd October 2017, the claimant claims that the defendant is indebted to it. The claimant therefore seeks the following relief;

• i. The sum of USD$122,636,450.34;

• ii. Interest pursuant to 28 U.S. Code §1961 at the rate of 1.23% per annum on the sum of USD$122,636,450.34 from the 1 ^st August 2017 to 29 ^th September 2017 in the sum of USD$247,960.82;

• iii. Interest pursuant to section 25 of the Supreme Court of Judicature Act, Chap. 4:01 on all sums found due to the claimant at such rate and for such periods as the Court shall deem just;

• iv. Costs; and

• v. Such further relief as the Court deems just.

11 It is to be noted that the judgment obtained in the United States of America cannot be registered in this jurisdiction under the Judgments Extension Act Chap 5:02, there being no reciprocal agreement between this territory and the USA, the USA not being a Commonwealth nation.

12 By Defence filed on the 8 ^th December 2017, the defendant claims that the Judgment of the Florida Bankruptcy Court was obtained in a manner which contravened the principles and tenets of natural justice in this jurisdiction. The defendant avers that the claimant's statement of case does not accurately depict the full matters which occurred in the Florida proceedings. That while the claimant attempts to paint a picture of non-compliance by him in the Florida proceedings, he was at various times physically unwell or impecunious to the extent he could not afford to continue to retain legal counsel to defend his claim.

13 The defendant further avers that he was only made aware of matters which formed the subject of complaints in the Florida proceedings at a belated stage of the transactions. That it was only when he was served with a Motion for Default Judgment that he realized the stage at which the proceedings had reached and he filed a Response in Opposition to the Motion. According to the defendant, the Florida Bankruptcy Court found that the default application could have been upheld and so the defendant filed his objections to the Florida Bankruptcy Court's findings before a Higher Court, the Eleventh Circuit.

14 The Eleventh Circuit upon hearing both parties on the issues recommitted the matter to the Florida Bankruptcy Court's Judge with instructions to hold an evidentiary hearing. The defendant claims that despite the Eleventh Circuit Judge's determination, the Florida Bankruptcy Court's Judge entered the Agreed Order on the 29 ^th November, 2016. As such, in relation to the Agreed Order, the defendant avers that he has no recollection of agreeing to a position whereby he accepted liability. That had he done so, same would have completely contrary to his position and intended Defence in the Florida proceedings.

15 Further, the defendant avers that he was deprived of the opportunity to challenge the extent of the damages being claimed by the claimant. That he was unaware that a date had been set for the trial on damages. On the 9 ^th May, 2017 the defendant was constrained to file a Notice of unavailability and motion for continuance due to the expiration of his passport in May 2017 which inhibited him from travelling to the United States of America from Trinidad.

16 The defendant claims that despite the Florida Bankruptcy Court being cognizant of the aforementioned, it proceeded to adopt an unduly prejudicial approach by not only proceeding with the Pre-Trial Hearing but by also setting a trial date within four weeks of the date he expressly stated that he would have been unavailable. According to the defendant, the adoption of such procedure by the Florida Bankruptcy Court has had the unfortunate consequence of denying him a full, proper or any opportunity to defend himself at the trial of the assessment of damages which in turn amounted to a breach of natural justice.

17 Moreover, the defendant avers that the claimant compromised its claims against other defendants for de minimis amounts in 2014 and 2015 on the condition that those defendants would co-operate with the claimant in future legal proceedings.

18 The court notes at this stage that at paragraph 3 of his affidavit in opposition the defendant abandons all other defences filed save and maintains only the defence of the absence of natural justice. His exact words were;

“…in particular I no longer wish to pursue my defenses (sic) as they relate to the issues of public policy and the challenging of the jurisdiction of the Florida Court”.

The issues

19 The issues for determination are as follows;

• i. Whether the Defence of the defendant discloses no grounds for defending the claim; and

• ii. In the alternative, whether the claimant should be granted summary judgment against the defendant.

Law & Analysis

20 The law on striking out and summary judgment are well established and there is no dispute between the parties on the applicable principles. Part 26.2(1) (c) of the CPR empowers the court to strike out a Defence for disclosing no reasonable grounds for bringing or defending a claim and Part 15.2(a) of the CPR empowers the court to give summary judgment on the whole or part of the claim if the defendant has no realistic prospect of success on his Defence or part of the Defence. Consequently, there is an important difference between the tests which the court is to apply under Rule 26 and Rule 15 of the CPR.

21 In University of Trinidad and Tobago v Professor Kenneth Julian and Ors 1 my brother Kokaram J had the following to say on the difference between the two tests;

“6. There is of course a fundamental difference between the two tests under CPR rule 26 and rule 15. When invoked simultaneously by a party the Court is engaged in an exercise of testing and assessing the strengths of the Claimant's case on what I will term a “soft” and then a more rigorous standard. If a claim discloses some ground for a cause of action it is not “unwinnable” and should proceed to trial. It may be a weak claim but not necessarily a plain and obvious case that should be struck out and the claimant “slips past that door”. The Court is however engaged in a more rigorous exercise in a summary judgment application to determine of those weak cases, which may have passed through

the “rule 26.2 (c) door” whether it is a claim deserving of a trial, whether

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