Allan Hunter v Owen Saunderson v Leo Osbourne v Granville Valentine (General Secretary of the National Workers Union) v The National Workers Union
| Jurisdiction | Jamaica |
| Judge | Henry-Mckenzie, J |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] JMSC Civ 78 |
| Date | 05 February 2019 |
| Docket Number | CLAIM NO. 2017HCV03897 |
| Court | Supreme Court (Jamaica) |
[2019] JMSC Civ 78
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Henry-Mckenzie, J. (Ag.)
CLAIM NO. 2017HCV03897
Mr. Ravil Golding instructed by Lyncook, Golding & co. for the Claimants.
Mrs. Racheal Dibbs for the Defendants.
Jurisdiction — Whether claim should be struck out on basis that no Fixed Date Claim, date or first hearing has been issued — Whether Claimants can bring matter in their personal capacity against the trade union — Whether permission of the union or court is required to bring action — Whether derivative action — Civil Procedure Rules, Part 27.
Henry-Mckenzie, J (Ag)
On March 15, 2019, I delivered an oral judgment and promised to give my reasons in writing. I now do so.
The Claimants are purported members of the second Defendant, the National Workers Union (The Union) and the 1 st Defendant is the General Secretary of the Union. By way of a Fixed Date Claim Form filed on November 15, 2017 along with Supporting Affidavits the claimants are seeking several orders:
1. A declaration that the decision taken by the Election Committee of the National Workers Union the 2 nd Defendant and the 1 st Defendant Granville Valentine to hold a Special Congress of the National Workers Union on Saturday November 18, 2017 is unlawful, invalid, null and void in that it is contrary to the provisions of the constitution of the National Workers Union;
2. An Order to quash the decision of the Defendants through their servant or agent, the Election Committee to hold a Special Congress of the National Workers Union on November 18, 2017 as being contrary to the provisions of the constitution of the National Workers Union, the 2 nd Defendant;
3. An Order to quash the decision of the Defendants through their servant or agent, the Election Committee to open nominations on Wednesday November 1, 2017 to Friday November 10, 2017 for the Post of President, Vice Presidents, Financial Secretary and Trustee of the second Defendant, the National Workers Union on the basis that the opening of such nomination is in breach of the provisions of the constitution of the 2 nd Defendant.
4. An injunction restraining the Defendants, the Election Committee or their servants or agent from taking any steps whether directly or by way of their servants and or agents from acting or on implementing the decision to open nominations between November 1 to10, 2017 for post of President, Vice Presidents, Financial secretary and Trustees until the constitutional provisions of the 2 nd Defendant have been complied with.
5. An injunction restraining the Defendants, the Election Committee or their servants from taking any further steps or from holding a Special Congress of the National Workers Union, the 2 nd Defendant on November 18, 2017 or any other date unless the constitutional provisions of the 2 nd Defendant have been complied with.
6. Alternatively, a stay of the implementation of the decisions of the Defendants, the Election Committee, their servants and or agent to open nominations between November 1, 2017 to November 10, 2017 and to hold the Special Congress for the election of President, Vice Presidents, Financial Secretary and Trustees on November 18, 2017 or any other date pending the determination of this matter.
7. Any further or other relief.
These orders were also sought in an ex parte Notice of Application also filed on the 15 th November 2017. The ex parte Notice was heard on November 16, 2017 with all parties and their counsel being present and an interim injunction was granted restraining the Defendants, the Election Committee or their servants or agents from holding a Special Congress of the National Workers Union as well as a requirement for the claimant to give an undertaking as to damages. The matter was adjourned to November 24, 2017 for hearing and subsequently to June 4 th 2018 when the court extended the injunction and made orders for the filing of Affidavits in Reply, for an extension of time to file and serve written submissions, for the filing of Answer for request for information and to refrain from publicizing any aspect of the matter. Counsel for both sides were again present on both occasions.
On November 24, 2017 an Acknowledgement of Service was filed by the second Defendant in which it was stated that service of an unsealed fixed date claim form was effected on November 15, 2017. The Defendant has denied the claim and has indicated an intention to defend it. The Defendant filed Affidavits in response to the Affidavits in support of the fixed date claim form and Skeleton Submissions in this matter and also made request for information from the third claimant.
On June 20, 2018, the Defendants filed a Notice of Application for Court Orders to Discharge Injunction and Strike out Claim. This is the application before me for consideration.
The application seeks specifically:
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1. That the claim of the claimants be struck out and for a discharge of injunction obtained on November 16, 2017.
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2. An extension of time for filing and serving of this application
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3. Cost to the Defendants
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4. Such other relief as this court deems just and reasonable.
The main grounds of the application are stated as follows:
“1. Part 26 allows an application to be made by a party to strike out
the statement of case;
2. No Fixed Date Claim has yet been issued as at June 18 2018;
3. Leave has not been sought to bring a derivative action;
4. To date no claim nor any date or first hearing has been issued by the Court pursuant to Part 27, more than 8 weeks having passed since the hearing of the application for injunction, no undertaking having been made by the Claimants to issue a claim within any time period at all. Rule 17.2(3);
5. The Claimants personally, have applied for an injunction preventing the Defendants from holding a special congress to appoint officers, election of those officers is overdue.
6. The Claimants claim to be bringing this action in their personal capacities, for the benefit of the Defendant Union.”
Hearing of this application was set for November 15, 2018; however, it was adjourned to February 5, 2019. Among the orders made on November 15, 2018 was an extension of the Interim Injunction granted on November 16, 2017, to February 5, 2019.
On February 5, 2019 the application came before me. With the consent of the parties, I discharged the interim injunction granted on November 16, 2017 with cost to the defendants to be taxed if not agreed and heard the application for the striking out of the Claimant's statement of case.
I adjourned the application for the striking out of the claimants' statement of case until March 15, 2019 for decision.
The basis of the defendants' application to strike out the claim rests on two grounds. The first is that no fixed date claim, date or first hearing was issued by the Court and the defendants were not served within the six (6) months life cycle of the claim. Secondly, that the claimants did not seek permission to bring a derivative action, but instead brought the action in their personal capacity not having the requisite standing.
Counsel for the defendants, Mrs. Rachael Dibbs, in making her submissions under this first ground, contended that the claim is invalid because to date no fixed date claim form has been issued and served on the defendants, neither has any date or first hearing been issued by the Court. Counsel indicated that eight weeks has passed since the hearing of the application for injunction and the granting of an interim injunction and while the fixed date claim form is stamped, nothing else was done and no undertaking has been made by the claimants to issue a claim within any time period at all. The Defendant in making this argument relied on Part 27 of the Civil Procedure Rules (CPR) which specifies the procedure that should be adhered to when a fixed date claim is issued and the timelines that should be followed in relation to service. I will extract the relevant rules for ease of reference:
27.2 (1) “When a fixed date claim is issued the registry must fix a date, time and place for the first hearing of the claim.
(2)That date shall be not less than four weeks nor more than eight weeks from the date on which the fixed date claim form is issued unless the court otherwise directs
(3) The general rule is that the claimant must serve the fixed date claim form not less than 14 days before the first hearing.” [My emphasis]
Reference was also made by counsel for the defendants to rule 17.2(3).
Rule 17.2(3) reads:
17.2 (3) “Where the court ‘grants an interim remedy before a claim has been issued, it must require an undertaking from the claimant to issue and serve a claim form by a specified date.”
Counsel then went on to state that the life cycle of a fixed date claim form is six (6) months and that nothing having been validly issued and served within that period, the claim has expired pursuant to the Civil Procedure Rules. In seeking to strengthen this point, she relied on the claimants' alleged acknowledgment that nothing was done in the matter for one year, giving further weight to her contention that no claim exists.
Counsel further contends that the claimants' claim should be struck out on the basis that the claim was brought by the claimants in their personal capacity for the benefit of the Union which she argues the claimants have no enforceable right to do. She continued that the claim affects the membership of the Union as a whole making it a derivative action which requires permission to be first sought from the Union by those...
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