Archipelago Trading Ltd v The Commissioner of Police
| Jurisdiction | Dominica |
| Judge | Pariagsingh, M |
| Judgment Date | 31 January 2023 |
| Neutral Citation | DM 2023 HC 1 |
| Docket Number | Claim No. DOMHCV2018/0064 |
| Court | High Court (Dominica) |
| Year | 2023 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Civil Division
Master Alvin S. Pariagsingh
Claim No. DOMHCV2018/0064
Prof. Leslie Thomas KC leading Noelize Knight – Didier, Joelle Harris and Indira St. Jean for the Claimants; and
Antony Astaphan SC (abs) leading Dr. David Dorsette, Vanica Sobers – Joseph Pearlisa Morvan and Kayan Toussaint for the Defendant
Defendants' application to strike out
— Before the Court is the Defendants' application seeking an order that the Claimants' statement of case be struck out. 1
The application is made pursuant to Part 26 Rule 26.3(1)(b) and (c) of the Civil Proceedings Rules 2000 2 as well as under the inherent jurisdiction of the Court.
The Applicants seek, as it relates to the Second and/or Third Defendant only, that the claim be dismissed as it discloses no reasonable cause of action against them. The Applicants also seek, as it relates to all Defendants, an order that the claim be struck out as it discloses no reasonable cause of action and/or it is an abuse of process of the Court. The Applicants also seek an order that judgment be entered in favour of the Defendants and costs.
At the commencement of the hearing, it was indicated that the Claimants concede that that they have no claim for breach of statutory duty. The Claimants contend however, that they do have a claim in negligence and rely on the same pleadings.
For the purposes of this decision, I would only consider the submissions and arguments as it relates to the claim in negligence and the alleged breach of a common law duty.
The grounds of the application are that:
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1. The Claimants have not pleaded any reasonable cause of action against the Second and/or Third Defendant.
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2. There is no reasonable cause of action pleaded concerning the alleged common law duty owed to the Claimants by the Defendants or for damages for the alleged breaches.
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3. The pleaded case for a common duty of care owed by the Defendants is, in the premises, substantially, if not solely, on alleged failures to stop violence or looting of private businesses after hurricane Maria;
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4. The common law precludes a claim for damages for an alleged breach of a duty of care against the Defendants and in particular the First Defendant especially in operational matters, unless it is pleaded, and it is not, that the Defendants by their own actions caused, or contributed to the damage and/or the damage was caused by the persons under the control of the Defendants, and not third parties or other members of the public;
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5. There is no pleaded allegation or case that the Defendants or persons under their control caused the damage or loss allegedly suffered by the Claimants;
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6. Mere omission or failure by the First Defendant and his commanding or other officers to act in the circumstances of devastation and violence as pleaded by the Claimants is wholly insufficient to create any duty of care to the Claimants;
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7. Public policy, or the law, requires especially after a Hurricane Maria, and the island wide devastation caused by it, that no private or other duty of care was owned by the Defendants to the Claimants as individual members of the public.
The application is supported by an affidavit of Daniel Carbon. 3 The affidavit is expressed to be made in support of the Defendants' application. The affidavits simply says that the deponent has read the grounds of the application and he was advised by his Attorneys at Law that the grounds are true. 4 The Defendants have filed no affidavit in opposition. Pereira CJ in Dr. Martin Dider et at v Royal Caribbean Curses Ltd et al 5 at paragraph 28 outlined the approach the court ought to take in an application to strike out:
‘Therefore, for the strike out procedure, the pleadings alone are examined and if the court finds that they are untenable as a matter of law a party may have his/her claim or defence struck out. This does not preclude that party however, from remedying the faults of their claim or defence and bringing further legal proceedings in relation to the same dispute. They are perfectly entitled to do so. The situation is different, however, with the summary judgment procedure since this procedure gives a judgment on the merits which operates as issue estoppel. No further litigation on the same issue(s) will be entertained by the court’ emphasis mine.
Accordingly, there was no need for an affidavit in support of the application and consequently no need to reply. In any event, the affidavit was of no assistance in resolving the issues to be determined.
The power to strike out is contained in CPR 26.3 1(b) and (c) which states:
‘26.3(1) In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that –
(a) ………….
(b) the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending the claim;
(c) the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings; or …..’
The approach to applications to strike out has been settled in a series of authorities in this jurisdiction including those set out in the written submissions of both parties. In general, the court will not strike out a party's case unless it is clear that the case is doomed to fail and there is no other alternative that can be used that would lead to the case being determined on the merits. The court's approach always favours cases being determined on its merits whilst not being divorced of the notion of procedural justice and fairness.
The statement of claim in this matter was filed on March 20, 2018, five (5) days short of the fourth year anniversary that this claim has been pending. Pleadings have been closed since June 28, 2018. The matter is at the stage of being fixed for pre-trial review all witness statements having been filed.
The Court is compelled to highlight the lateness of this application and the disservice that does to the Court and the litigants. Nothing is raised in the application that was not at the disposal of the Defendants four (4) years ago. Instead, the Defendants stood silent and waited in the curtains until the eve of the matter progressing to trial and in particular until the Claimants have put their intended evidence before the Court to make this application.
The lateness of this application interrupts the case flow management and the Court now has to go back to looking at the pleadings when the parties have put themselves in a place for trial. Whilst no time is prescribed in the rules for the making of an application to strike out, it must be that an application with the potential to dispose of a case entirely ought to be made at the earliest possible opportunity. The Defendants have not made this application with any promptness having regard to how long they have had this claim in their possession. In this regard, the lateness of making this application will be taken into account in treating with the issue of costs, if it arises.
In light of the concession of Counsel for the Claimants that the claim for breach of statutory duty is not being pursed, I will only focus on the relevant parts of the statement of claim.
In summary, the Claimants are all businesses in close proximity to the Dame Eugenia Charles Blvd, Rouseau. The First Defendant is the Commissioner of Police who the Claimants allege commanded and was responsible for the good conduct, control and discipline of the police force under the general orders of the Minister, the Second Defendant. The Third Defendant is the Attorney General who is vicariously liable for the actions of the servants and/or agents of the State pursuant to Section 14 of the State Proceedings Act. 6
The Claimants' claim is that a general duty of care was owed by the Defendants to enforce the criminal law both during the passage and for a reasonable period after hurricane Maria. Their case is that the Defendants negligently breached that duty resulting in them suffering damages and loss as a result of looting and general destruction after the hurricane.
Each Claimant has pleaded specified facts in relation to their claim. In relation to the First Claimant, its case is that on September 20, 2017 its business place was opened and entered by persons unknown and looted.
The Second Claimant contends that its place of business was flooded by river waters and from high tides from the sea. Its case is that on September 19 and 20, the business was broken into and looted.
The Third Claimant contends that following the hurricane its business was broken into and looted on September 19, 2017. This looting continued and the Third Claimant closed its operations permanently.
The Fourth Claimant contends that on September 20, 2017 its business place was broken unto and looted. This continued until September 22, 2017.
The Fifth Claimant contends that on September 19, 2017 after the hurricane, its premises were looted and this continued.
The Sixth Claimant contends that September 19, 2017 its business place was broken unto and looted.
All the Claimants contend that the looting after the hurricane continued unchecked for a significant period and was directly caused by the Defendants...
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