Kennedy v Syne

• Jurisdiction: Trinidad & Tobago
• Judge: Malone, J.
• Judgment Date: 27 June 1966
• Neutral Citation: TT 1966 HC 6
• Docket Number: No. 78 of 1966
• Court: High Court (Trinidad and Tobago)
• Date: 27 June 1966

High Court

Malone, J.

No. 78 of 1966

Kennedy

and

Syne

No Appearances:

Practice and Procedure - Pleadings — Statement of claim — Application to strike out — Whether application should be entertained.

Facts: In a previous action between the parties a consent order was made. Plaintiff subsequently filed an action for the purpose of setting aside the consent order on the ground that he gave specific instructions to his solicitor and counsel not to consent to the judgement. Application made by the defendant to strike out the statement of claim on the ground that it disclosed no reasonable cause of action.

Held: Striking out a statement of claim is a matter for the discretion of the court which ought to be exercised only in clear and obvious cases. This is not such a case. Application accordingly refused.

Malone, J.

1 This was an application by the defendant under 0. 26 r.4 of the Rules of the Supreme Court for an order that the Plaintiff's Statement of Claim be struck out on the ground that it discloses no reasonable cause of action and is frivolous and vexatious and that his action be stayed or dismissed.

2 The Statement of Claim discloses that a consent order was made on the 25 ^th June 1965 in respect of an action commenced by the present plaintiff against the present defendant on the 16 ^th October, 1962. In para. 4 of the Statement of Claim, the plaintiff alleges that he:

“did not authorise his solicitor or counsel on the 25 ^th June 1965 or at any other time to consent to the aforesaid judgment”

3 And further that:

“his solicitor and counsel have acted contrary to instructions and have never consulted him as to any consent or otherwise.”

4 Upon application made by the defendant the following particulars under para. 4 of the Statement of Claim were supplied by the plaintiff:

“Verbal instructions wore given to both solicitor and counsel by the plaintiff on the 25 ^th June, 1965 not to consent to the judgment of which the plaintiff now complains”.

5 It was first submitted by counsel for the defendant that there was an inherent conflict between the further allegations made in para. 4 the Statement of Claim and the particulars submitted thereunder as on the hand it was alleged that the plaintiff's solicitor and counsel had never consulted him with respect to the consent order whilst on the other it was stated that the plaintiff had given to his solicitor and counsel specific instructions not to consent to the very judgment of which he now complains. If therefore, it was contended, there lead been no consultation then specific instructions not to consent to the judgment now complained of could not have been given. From this it would follow that if no such specific instructions had been given the allegation in para 4 that: “his solicitor anal counsel have acted contrary to instructions”.

6 Could only mean that the instructions which they had failed to follow sere instructions of a general nature. For to suggest that the instructions referred to in para. 4 were of a specific nature would result in the re- introduction into para. 4 of the very conflict raised by the particulars submitted under that paragraph.

7 On the basis of that submission counsel for the defendant advanced two further submissions. The first of which was that assuming it to be that the reference to instructions in para. 4 is to be taken as meaning general instructions the Statement of Claim discloses no cause of action as counsel in a cause has the right at any time to settle an action if he consider it in the interest of his client to do so and such settlement then becomes binding on his client. If on the other hand the settlement was effected in breach of specific instructions against such a settlement it was submitted that again there was no cause of action as it had not been pleaded that the limitation imposed by such specific instructions on the authority of counsel had at any time been communicated to the other party or his legal advisers.

8 Objection was taken by counsel for the plaintiff to the citation by opposing counsel of legal authorities defining the ambit of authority of counsel in a cause on the ground that in an application of this nature the court should not be concerned with such authorities but should limit itself to the Statement of Claim only.

9 Whilst it is clear that the court on an application of this nature must assume that the facts pleaded are correct and must therefore confine itself to the pleading nevertheless as it has to decide whether or not the pleading discloses a cause of action, it cannot to my mind avoid considering the law upon which the action purports to be based. For that reason I allowed counsel for the defendant to cite authorities relating to the authority of counsel at the trial of an action and I considered that the objection taken to such citation by counsel for the plaintiff to be unsound.

10 To my mind the issues I have to decide are two. The first being whether the Statement of Claim discloses that the plaintiff specifically limited the authority of his counsel in the previous action. Whilst the second is that assuming that to be case...