Stephen Lucas v KCL Capital Market Brokers Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Madame Justice Margaret Y Mohammed
• Judgment Date: 26 October 2023
• Neutral Citation: TT 2023 HC 336
• Docket Number: Claim No. CV2021-03166
• Court: High Court (Trinidad and Tobago)

Between

Stephen Lucas

Claimant

and

KCL Capital Market Brokers Limited

Trinjet Services Limited

David Edwards

Defendants

Before

The Honourable Madame Justice Margaret Y Mohammed

Claim No. CV2021-03166

IN THE HIGH COURT OF JUSTICE

APPEARANCES

Mr Gary Hannays Attorney at Law for the Claimant

Mr Dave Williams instructed by Ms Chelsea J Stewart-Chesney Attorneys at law for the First Defendant

1 The First Defendant has applied to set aside the Claimant's action against it on the basis that it is an abuse of process and that it has failed to disclose any grounds for bringing a claim against it. In the substantive claim the Claimant is seeking to set aside a consent order (“the Consent Order”) dated 26 September 2018 in CV 2018–01493 (“the 2018 action”) on the basis that the Claimant agreed to its contents by mistake and/or misrepresentation and that the Attorney at law who advised him was incompetent and negligent. The Claimant also claims that he was not properly advised of the true effects of the Consent Order. The First Defendant's Defence to this claim is that the Claimant voluntarily agreed to the terms of the Consent Order; the Claimant was represented by an experience Attorney at law when he agreed to the terms of the Consent Order; the consideration which the Claimant agreed to was he promised to fulfil the terms of the Consent Order; and the Claimant complied with Clauses 1 and 3 of the Consent Order.

2 The First Defendant's four grounds for striking out the claim are: it is an abuse of process; the Court is functus officio; the Claimant has failed to establish the threshold to prove mistake and; the Claimant has failed to established the negligence of the Attorney at law.

3 The Claimant's position is that his failure to file a Defence in the 2018 action should not be seen as an abuse of process; the Court is not functus officio; even if the Claimant has failed to plead sufficient particulars to establish that he was mistaken and / or misrepresented he can still amend his pleadings without the Court's permission; the Claimant did not provide any consideration for the Consent Order and the Attorney at law who advised the Claimant was incompetent or negligent.

4 It is settled law that a Court should not easily strike out a Claimant's case. Kokaram J (as he then was) in the University of Trinidad and Tobago v Professor Kenneth Julien & Ors1, set out the approach to be applied where a party seeks to strike out a defence and to obtain summary judgment in the same application. Kokaram J (as he then was) described the striking out application as the soft approach or the lower test and the summary judgment application as the hard approach or the harder test to overcome. At paragraph 24, Kokaram J (as he then was) explained:

“In my view I agree with the observations made in Swain v Hillman[2001] 1 ALL ER 91 that there is an obvious relationship between CPR rule 26.2 (c) and rule 15. They are both summary proceedings that seek to bring a premature

end to proceedings without the opportunity being given for the parties or the Court to fully investigate the facts and the law at a trial. The premise of both applications is that it would be a waste of the parties' and Court's resources to do otherwise and that further management to trial is an uneconomical, un-proportionate response to the nature of the case presented by the litigant. The approach maintains the equality of arms between a

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