Chairman v Saunders
| Jurisdiction | Trinidad & Tobago |
| Judge | Seepersad, J. |
| Judgment Date | 02 July 2012 |
| Neutral Citation | TT 2012 HC 232 |
| Docket Number | CV 1670 of 2012 |
| Court | High Court (Trinidad and Tobago) |
| Date | 02 July 2012 |
High Court
Seepersad, J.
CV 1670 of 2012
Mr. R. Boodoosingh for the claimant appeared.
Mr. M. Mitchell for the defendant.
Civil practice and procedure - Pleadings — Application for striking out of claim — Abuse of process — Material non — disclosure — Serious issue to be tried.
Before the Court is the defendant's Notice of Application dated the 7th May, 2012 seeking to strike out the claimant's Amended Claim Form and Statement of Case and to discharge an injunction granted against the defendant on the 26th April, 2012.
The defendant's grounds for the application are:
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i. The claimant has no realistic prospect of success on the claim, part of the claim or issue;
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ii. The Particulars of Claim disclose no reasonable grounds for bringing the claim;
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iii. The defendant knows of no other reason why the disposal of the claim should await trial;
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iv. The claimant misled the Honourable Court by failing to provide particular details of the previous claim;
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v. The claimant failed and/or neglected to annex the previous proceedings indicating that same was dismissed for want of prosecution;
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vi. The claimant misled the Honourable Court by failing to disclose that he had voluntarily vacated the property and that the house was demolished;
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vii. The claimant misled the Honourable Court by indicating that he had an interest in the land while his interest is in the now destroyed house on the subject property; and
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viii. the Claim is frivolous and vexatious and amounts to an abuse of process.
By Claim Form and Statement of Case dated the 24th April, 2012 the claimant claimed possession of certain property and an injunction preventing the defendant from entering and evicting the claimant from same.
The claimant applied and obtained ex parte an interim injunction granting him possession of the said property and restraining the defendant from interfering with the claimant's possession of same.
The claimant filed an Amended Claim Form and Statement of Case as well as a Supplemental Affidavit on the 30th April, 2012.
Consequently, the defendant filed the instant Notice of Application and an Affidavit in Response on the 7th May, 2012. The claimant also filed an Affidavit in response on the 14th May, 2012.
Both parties have filed submissions with respect to this application.
The first issue to be determined is whether the instant action should be struck out as being an abuse of the court's process in light of the fact that the claimant had filed a previous action which was dismissed due to non compliance with an order of the court.
The established principle coming from the cases Securum Finance Limited v. Ashton and another [2001] Ch. (291) and Arbuthnot Latham Bank Ltd, Trafalgar Holdings Ltd. (1998) 1 W.L.R. 1426 is that the question as to whether a fresh action should be allowed to continue is a matter for the discretion of the court and in exercising this discretion the court must consider the overriding objective of the Civil Procedure Rules and whether the claimant's wish to proceed with the second action outweighs the need to allot the court's limited resources to other cases and the court should start with the assumption, that if a party has had one action struck out for abuse of process, some special reason has to be identified to justify a second action being allowed to proceed.
In DC (A child) v. CPS Fuel Limited [2001] E.W.C.A. CIV 1597 at paragraphs 36, Mr. Justice Bodey said:
“It goes without saying that in any such application there are competing factors and considerations pulling in different directions, which it is for the court at first instruct to weigh up and evaluate in striking what is really a balance of fairness. As May, L.J. put in, in Purdy v. Combran, CA. transcript 17th December, 1999.”
“Under the new procedural code of the Civil Procedure Rules, the court takes into account all relevant circumstances and in deciding what order to make, makes a broad judgment after considering available possibilities. There are no hard and fast theoretical circumstances in which the court will strike out a claim or decline to do so. The decision depends on the justice in all the circumstances of an individual case”
The Securum and Arbuthnot decisions have been applied locally in the cases of Wendell Steele v. Lennox Petroleum Limited CV2009-04689 and Mendoza v. Daily News Limited and others CV2008-03176. In both decisions the local Court struck out second actions on the ground that they were an abuse of the court's process having regard to the previous actions seeking the same relief which were previously before the court.
In the Mendoza matter, Madam Justice Rajnauth-Lee held that the claimant had no answer to the Securum test and in Wendell Steele; Mr. Justice Rampersad found applying the Securum test, that the need for a special reason for the re-litigation of the same point with the same parties was understandable. The learned judge went on to say that at paragraph 18, “The court would have been willing to consider a special reason for the filing of the new proceedings – Something to grasp on to say “Aha, this litigant had no choice but to act in this manner.” None was offered. As a result the court struck out the claimant's claim as an abuse of process.”
It appears that the local courts have adopted an approach to look for and to identify a special reason that would justify, having regard to the overriding objective, a decision to exercise the judicial discretion and allow a second action to proceed.
In the DC v. CPS Fuels matter, Lord Justice Judge at paragraphs 49 and 50 stated:
“I should say a word or two about his reference to “some special reason.” The use of these words is an attractive form of forensic shorthand which encapsulates the broad approach to the decision-making process to be adopted when an action has failed as a result of an abuse of process and the court is considering whether a second action relating to the same issues should be allowed to continue. The words come from authority binding on this court: Arbuthnot Latham Bank Limited v. Trafalgar Holdings Limited [1998] 1 W.L.R. 1426: but they are not words which derive from the statute or from the Civil Procedure Rules, and they should not be treated as if they had. Nor should they be employed as some form of ritual incantation. If the judge in this case had chosen to express the same principle by saying, “very good reason”, or “powerful” or “sufficient reason”, he would not, in my judgment, have misdirected himself.
The answer to the questions which necessarily arise to answer is always fact – specific. In particular, semantic analysis of this or that factor, or any combination of factors, to see whether they should be regarded as “special”, or “not quite special enough”, or “good enough”, or “not quite powerful enough”, is unhelpful. Worse still if that method of analysis is thought to be lent what is only spurious weight by the citation of previous decisions reached by other courts in different cases, even if the citation is used merely by way of example or illustration.”
In Wahab v. Khan and others [2011] E.W.H.C. Ch (908) Mr. Justice Briggs, carefully considered the law as it relates to striking out claims on the ground of abuse of process and said at paragraphs 19 to 22 —
“Where the first claim has neither been adjudicated upon nor compromised, but merely struck out for specific procedural default or more generally for want of prosecution, then different types of potential abuse may arise. The first is where the claimant brings the second claim without complying with any relevant order for costs made against him in the first. In such a case the potential for abuse lies in the unfairness of putting the defendant to the expense of fresh proceedings while his costs of the previous proceedings remain unpaid: see Investment Invoice Financing Ltd. v. Limehouse Board Mills Ltd. [2006] 1 W.L.R. 985, at paragraphs 34 and 47, per Moore-Bick, L.J.. It has been recognized since the mid-nineteenth century that the normal response of the court to such a case is to stay the second claim until the costs ordered in the first claim have been paid. The jurisdiction to stay is discretionary, and depends upon a consideration of all the circumstances: see per Moore-Bick, L.J. at paragraph 46. In such a case the abuse lies not in bringing the second claim at all, but in doing so without first paying the defendants' costs of the first claim. It may be appropriate to provide, in addition to a stay, for a striking out of the second claim if the costs of the first claim are not paid by a certain date: see Investment Invoice Financing (supra) at paragraph 48.
The distinction between the cases where the bringing of a claim is an abuse, and where the abuse consists of doing so without paying the defendants' costs of the earlier claim, is spelt out in terms in CPR 3.4 (2) and (4), and the different form of remedy for each type of abuse is separately identified.
The bringing of a second claim where the first has been struck out for inordinate and inexcusable delay may give rise to a third and distinct type of what may loosely be called abuse, namely a disproportionate use by the claimant of the court's resources. In Securum Finance Ltd. v. Ashton [2001] Ch 291 at 309, Chadwick LI said this at paragraph 34:
‘For my part, I think that the time has come for this court to hold that the “change of culture” which has taken place in the last three years – and, in particular, the advent of the Civil Procedure Rules – has led to a position in which it is no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the...
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