Trinidad Home Developers Ltd v I.M.H. Investment Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Sharma, J.A. |
| Judgment Date | 09 March 1990 |
| Neutral Citation | TT 1990 CA 8 |
| Docket Number | Civ. App. No.19 of 1987 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 09 March 1990 |
Court of Appeal
Bernard, C.J.; Edoo, J.A.; Sharma, J.A
Civ. App. No.19 of 1987
Mr. Michael De La Bastide QC, and Mr. Clew Razack for appellant.
Mr. Tajmool Hosein QC, Mr. S. Jairam and Mr. F. Hosein for respondents.
Practice and procedure - Summary judgment under O.14 — Conflict over approach which court should adopt in O.14 proceedings when matters of pure law are raised — Review of case law — O.14 procedure in Trinidad and Tobago not as speedy as it should be because courts are overburdened — Ruling that in O.14 proceeding the master or judge should deal with any matters of pure law raised finally and definitely.
The circumstances which give rise to his ruling raise important of practice and procedure when dealing with matters of pure law Order 14 proceedings in our jurisdiction.
In order, however, to render this ruling intelligible it would necessary to rehearse albeit, briefly some of the salient facts - all which are undisputed before proceeding to deal with the various submissions made by senior attorneys.
There are several agreements involving as many parties in this case, but for present purposes, the only one that need concern us is (respondent) and Trinidad Home Developers Limited (appellant)on the 3 rd July, 1978 (the Patent agreement). Under the terms and conditions of the Patent agreement there was inter alia, a provision for the appellant to pay royalties to the respondent.
This the appellant did for some time, but then it started to have financial problems and indeed indicated this to be respondent and asked for time to liquidate the balance. It did not, and quite a substantial amount fell into arrears. Correspondence ensued between the appellant and the respondent which culminated in a specially indorsed writ being filed on the 23 rd June, 1986. On the 1 st July, 1986, the respondent filed Ord. 14 proceedings claiming the sum of US $1,060,954.00 for royalties under the ‘patent agreement’.
On the 7 th October, 1986, the Order 14 came before Master Gopiesingh. The hearing before him lasted two days, during which there were extensive legal arguments, and citation of many authorities.
On the 13 th February, 1987, the court delivered a very elaborate and comprehensive judgment, in which judgment was entered for the respondent.
In the course of his judgment, there was a generous reference to many authorities by the Master and it would seem that he was clearly of the view that since the arguments before him had raised only issues of law, he felt able to determine the matter finally.
The appellants appealed, contending that it had raised triable issues, and that it ought to have been granted unconditional leave to defend. Mr. De La Bastide who appeared for the appellant in this court and the court below, raised two points on the appeal, the hearing of consideration. He submitted that there was an absence of consideration on the part of the respondents for the payment of the royalties by the appellant, and secondly, there was a misrepresentation by the respondent, as a result of which the appellant was entitled to rescind the patent agreement.
On the first point, Mr. De La Bastide contended, and indeed initially accepted that this raised a pure question of law, and accordingly this court was in a position to deal definitively with it.
In respect of the other, however, he submitted that matters were raised which ought to be investigated at a full trial of the action. His argument on these two points ranged over a several days (for which he was not solely responsible) - in which very mature and complex arguments in law have been raised.
Mr. Hosein, who appears for the respondent, at the beginning of his argument contented that the points raised by Mr. De La Bastide were capable of a final resolution by this court and further that he intended to submit and demonstrate that this court was quite capable of disposing of them effectively.
After two days of arguments by Mr. Hosein, the court, on the morning of the third day of Mr. Hosein's submissions, drew to the attention of both attorneys, the case of Home and overseas Insurance Co. Ltd. v. Mentor Insurance Co. (UK) Ltd. [1989] 3 All ER. (The Home case) which had only recently came to hand, and on which the court thought it would seek the assistance of both attorneys.
The matter was then stood down to enable both attorneys to look at this case, and on the resumption of the hearing, Mr. De La Bastide indicated to us that he and Mr. Hosein had agreed that, in the light of the case, both attorneys would make submissions on it.
As I understand it, it purpose for this approach in this case was to enable this court to rule on whether it ought to decide the points of law raised in this appeal finally, (in so far as they can be decided without further evidence) or whether this court without deciding these points finally ought to send the matters back for trial, if it cannot readily be demonstrated that the points of law are plainly unsustainable.
Of course, one of the virtues in this exercise is that, if the court were to take the latter approach, then it may be a signal to attorney for the respondent as to the course he might wish to adopt on the further hearing of this appeal.
There is however, another reason and it goes far beyond the interest of the parties in this case. It will determine what approach our courts should take when faced with matters of pure law in Ord. 14 proceedings in our jurisdiction.
Before dealing with the rival contentions of both attorneys, I think I ought to make a few preliminary observations about the Home case. The facts of the case itself are in no way unique, nor do they in my opinion impact or impinge upon the statement made by Parker LJ (who gave the leading judgment) when he sought to deal with pure law in Ord. 14 proceedings. In other words, these statements were intended to be general application.
What is also equally clear is that the other judges Lloyd and Balcombe LJ, agrees with Parker in the statement although Balcombe L.J was less expansive in his concurrence, than Lloyd L.J, and merely content to dismiss the appeal for the reasons given by Parker and Lloyd LJ.
At page 77 of the Home case he said:
“I shall shortly consider the authorities relating to the way in which the court should deal with Ord. 14 applications when countered by an application for a stay based on an arbitration clause. Before doing so, however, I venture to make some general observations on the question Ord. 14 application both when standing alone and when countered by a stay application.
The purpose of Ord. 14 id to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant's only suggested defence is a point of law and the court can see at once that the point is misconceived the plaintiff is entitled to judgment. If at first sight the point appears to be arguable but with a relatively short argument can be shown to be plainly unsustainable the plaintiff is also short not in my view be allowed to become a means for obtaining in effect, an immediate trial of an action, which will be the case if the court lends itself to be determining on Ord. 14 applications points of law which may take hours or even days and the citation of many authorities before the court is in a position to arrive at a final decision”.
At p. 78 he said:
In very clear cases a plaintiff is no doubt entitled to his summary judgment notwithstanding the clause, but, when a plaintiff seeks immediate judgment in other than a clear case and resists the submission of the dispute to the tribunal on which he has agreed, one is bound to wonder whether the course which he has taken is prompted by the knowledge that the chosen tribunal with its more intimate knowledge of which he might either fail to obtain leave to appeal or if he did obtain leave fail demonstrate any error.
The foregoing observation may at first sight appear to conflict with observations in this court by Robert Goff LJ in European Asian Bank AG v. Punjab and Sind Bank [1983] 2 All ER 508 at 516, [1983] 1 WLR 642 at 654 and by Kerr LJ in Zakhem International Construction Ltd. v. Nippon Kokan KK (1987) 2 Lloyd's Rep 596 and Nichimen Corp v. Gatoil Overseas Inc (1987) 2 Lloyd's Rep 46 at 51–52. In the last of these cases Kerr LJ said:
“It has been said again and again in this court in recent years that it is not sufficient to conclude that the defendants have an arguable case if the issues turn on a point of law, other material, which enables the court to form a definitive view on the rights of the plaintiffs there and then…. In a case like the present the judge should only give leave to defend it if, after full consideration of the material before him, he is satisfied that the plaintiff is not entitled to judgment there and then”.
The observation which have made were however not intended, in my judgment, to indicate any more than that it was insufficient for the defendant to raise an arguable point of law if that point could be readily demonstrated to be unsustainable. They cannot be taken as granting to a plaintiff the right to an accelerated and lengthy trial on a difficult point of law.
In American Cyanamid Co. v. Ethicon Ltd. [1975] 1 All ER 504 at 510, [1975] AC 396 at 407 Lord Diplock, when speaking of applications for interlocutory injunctions, said:
‘The court no doubt must ne satisfied that the claim is no frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court's function at this stage… to decide difficult questions which call to detailed argument and mature considerations. These are matters to be...
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