Levi Maximea Claimant/Respondent The Dominica Agricultural Industrial and Development Bank Gerald Burton Chambers Defendants/Applicants
| Jurisdiction | Dominica |
| Judge | Stephenson, J,M E Birnie Stephenson |
| Judgment Date | 03 February 2017 |
| Judgment citation (vLex) | [2017] ECSC J0203-7 |
| Court | High Court (Dominica) |
| Docket Number | DOMHCV2016/160 |
| Date | 03 February 2017 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
DOMHCV2016/160
Mrs Colleen Felix Grant for the Defendants/Applicants
Claimant/Respondent in person
Considered on the written submissions submitted by:
Mrs Colleen Felix Grant for the Applicants
Mr Levi Maximea in person
[1] Stephenson, J. This is an application filed by the defendants to strike out the claim filed herein as an abuse of process. The application is filed pursuant to Rule 26.3 of CPR 2000. The relevant parts of Rule 26.3 states
"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 -
(b) the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a 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 …
[2] In this case, the claimant/ respondent ('the respondent') issued proceedings against the defendants/applicants ('the applicants') for damages for breach of contract, defamation, slander and malicious prosecution as well as exemplary and aggravated damages and damages for breach of constitutional rights.
[3] The striking out of a statement of case (Claim) is a draconian step which a court would only take in exceptional circumstances. I am guided by the decision in Baldwin Spencer v The Attorney General of Antigua and Barbuda et al1where Dennis Byron CJ (Ag.), had this to say about the test that should be applied by the court in applications such as the one in the case at bar.
"This summary procedure should only be used in clear obvious cases, when it can be seen on the face of it, that a claim is obviously unsustainable, cannot succeed or in some other way is an abuse of the process of the court… striking out has been described as 'the nuclear power' in the court's arsenal and should not be the first and primary response of the court."
[4] In Tawney Assets Limited v East Pine Management et al2, Acting Justice of Appeal Don Mitchell QC said that:
". The court must therefore be persuaded either that a party is unable to prove allegations made against the other party; or that the statement of case is incurably bad; or that it discloses no reasonable ground for bringing or defending the case; or that it has no real prospect of succeeding at trial".
[5] Learned Counsel for the applicants, has submitted that the claim filed by the respondent should be struck out as it is an abuse of process. In the case of Swainv Hillman [2001] 1 All ER 913 in looking at the role of the judge in applications to strike Lord Woolf said that:
"It is important that a judge in appropriate cases should make use of the powers contained in Part 244. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose and, I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant shouldknow this as soon as possible. Useful though the power is under Part 24, it isimportant that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial." (emphasis mine)
[6] In the Anguilla case of Robert Conrichv Ann Van Der Elst5 Rawlins J said that
"It is only where a statement of case does not amount to a viable claim or defence or is beyond cure that the court may strike out"(Emphasis mine)
[7] In this application to strike out the claimthe determination that has to be made is whether or not the claim is bound to fail and in that regard this court is only concerned with the statement of case which it is alleged discloses no reasonable grounds for bringing the claim. Consequently, the claimant ought not to be permitted to continue to pursue a case which has no real prospect of success.
[8] This is of course in keeping with the overriding objective of the CPR2000 that is, to deal with cases justly by saving unnecessary expense and ensuring timely and expeditious disposal of cases.
[9] The claimant seeks damages against the defendants based on the torts of libel, slander and malicious prosecution. In a nutshell, he claims that the defendants' actions to commence legal proceedings in another matter6 have caused him injury, loss, and damage.
[10] Judgment was since entered against the respondent in the said claim.
[11] In the case at bar, the respondent claims that allegations made in that case that he had defaulted on his mortgage amounted to libel and defamation causing him damage and that the applicants also prosecuted him maliciously.
[12] The tort of malicious prosecution has over the years not be generally available in respect of civil proceedings and has been generally been only admitted in a few cases where it was found that there was an initial abuse of legal process which caused arguable. immediate and in some cases irreversible damage to the reputation of the victim.7
[13] In the very recent case of Willers -v- JoyceUNK [2016] 3 WLR 477,8 it was held that the tort of malicious prosecution includes the prosecution of civil proceedings. It was heldthat it seems instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for having instigated it. Therefore in the case at bar, it is possible for the respondent to bring a claim for malicious prosecution against the applicants.
[14] Having said that, though, it is now incumbent upon the court to review the statement of case in an effort to ascertain whether or not the respondent has a case which is sustainable in law. Does the claim as brought by the respondent have a real prospect of succeeding at trial?
[15] In order for the respondent to succeed in a claim for malicious prosecution he must be able to prove the following four key elements:
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i. that the original case which was instituted against him was terminated in his favor;
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ii. that the applicants played an active role in the original case;
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iii. that the applicant did not have probable cause or reasonable grounds to support the original case;
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iv. that the applicants initiated or continued the initial case with an improper purpose.
[16] The respondent in the case at bar would have an insurmountable task in that the case brought against him by the first named applicant with the second named applicant acting on its behalf was not terminated in his favour. The defence which he sought to raise at first instance was struck out and judgment entered in favour of the applicant to be assessed by the court.
[17] His application for...
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