Branch Developments Ltd v Bank of Nova Scotia Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop, J
• Judgment Date: 24 January 2014
• Neutral Citation: [2014] JMSC CIV 3
• Docket Number: CLAIM NO. 2008 HCV 00715
• Court: Supreme Court (Jamaica)
• Date: 24 January 2014

[2014] JMSC CIV 003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2008 HCV 00715

Between

Branch Developments Limited T/A Iberostar Rose Hall Beach Hotel

Claimant

and

The Bank of Nova Scotia Jamaica Limited

Defendant

Michael Hylton Q.C. Ms. Shanique Scott and Ms. Melissa McLeod instructed by Michael Hylton & Associates for the defendant

Mrs. Pamela Benka — Coker Q.C. instructed by Brian Moodie of Samuda & Johnson for the claimant

CIVIL PROCEDURE — APPLICATION TO STRIKE OUT — ORDER FOR SPECIFIC DISCLOSURE — NON COMPLIANCE WITH ORDER — UNLESS ORDER FOR FILING OF WITNESS STATEMENTS — WITNESS SUMMARIES FILED INSTEAD WITHIN THE TIME SPECIFIED — WITNESS STATEMENTS FILED AFTER DATE SPECIFIED — DISCREPANCIES BETWEEN WITNESS STATEMENTS AND WITNESS SUMMARIES — WHETHER UNLESS ORDER COMPLIED WITH — PREVIOUS BREACHES OF COURT ORDERS — WHETHER STRIKING OUT MOST APPROPRIATE SANCTION — RELEVANT CONSIDERATIONS — PREJUDICE — DELAY — CIVIL PROCEDURE RULES (CPR) 2002, RULES 26.3 (1)(a); 28.1 (4); 28.2; 28.4(1); 28.6; 28.7; 29.6(1); 29.6(2); 29.7(2) & 29.7(3).

IN CHAMBERS

McDonald-Bishop, J

1 This concerns an application brought by the Bank of Nova Scotia (Jamaica) Ltd., the defendant, for the court to invoke its case management powers contained in Part 26 of the Civil Procedure Rules, 2002 (the CPR), more particularly, the power to strike out a party's statement of case under rule 26.3(1) (a). The subject of the application is the statement of case of the claimant, Branch Developments Limited T/A Iberostar Rose Hall Beach Hotel.

2 By a Notice of Application for Court Orders dated 17 January 2013, the defendant seeks orders that:

• (1) The claim form and particulars of claim be struck out; and

• (2) The claimant pays the costs of proceedings to the defendant.

3 The application is based on the following grounds as detailed in it:

• (1) Rule 26. 3 (1) (a) of the CPR provides that the court may strike out a statement of case if it appears to the court that there has been a failure to comply with an order or direction given by the court in the proceedings.

• (2) The claimant has not complied with the orders made on 19 December 2012 at the pre-trial review for specific disclosure on or before 28 December 2012.

• (3) The claimant has been repeatedly and consistently in default of the Rules and orders made by this Honourable Court. These include:

  • (a) failing to comply with the order for standard disclosure;

  • (b) failing to file witness statements by 31 October 2012 as directed by the case management orders;

  • (c) failing to file and serve a statement of facts and issues on or before 7 December 2012 as directed by the case management order;

  • (d) failing to file and serve a listing questionnaire on or before 7th December 2012 as directed by case management orders;

  • (e) filing witness summaries in circumstances where the order of the court dated 19 December 2012 contemplated signed witness statements; and

  • (f) Discrepancies between the witness statements and previously filed ‘witness summaries’.

• (4) As a result of the claimant's breaches and non-compliance, the defendant has not been able to properly prepare for trial and has been unfairly prejudiced.

4 In support of the application, the defendant relies on the affidavit of Sundiata Gibbs, an associate in the firm of the defendant's attorneys-at-law, sworn to on 17January 2013 (‘The Gibbs Affidavit’).

5 The claimant vigorously resists the application to strike out its statement of case and has relied in response on the affidavit of Brian Moodie, an associate in the firm of the claimant's attorneys-at law, sworn to on 14 February 2013 (‘The Moodie Affidavit’)

The Background

The parties

6 The claimant is a registered company that carries on business as hoteliers in Jamaica under the name Iberostar Rose Hall Beach Hotel. The defendant carries on business of banking in Jamaica.

The claim

7 The claimant commenced proceedings against the defendant by claim form dated 18 February 2008, alleging breach of contract and/or negligence arising from the customer/bank relationship that existed between them. The claimant averred that between 2004 and 2007, it opened four accounts at the defendant's Rose Hall, St. James branch. One of these accounts was a Jamaican dollar current account that was opened in 2004. It signed three Agreements (entitled Agreement re Operation of Account) with the defendant dated 20 September 2004, 12 August 2005 and 12 June 2007.

8 It is alleged that between May and July 2007, the defendant paid several forged fraudulent cheques drawn on the Jamaican dollar current account and debited the said account with the value of those cheques. The employees who allegedly forged the cheques, on which payments were made, Carla Campbell and Janice Carruthers, were never authorized to sign cheques and so their specimen signatures were never submitted to the defendant as authorized persons to sign cheques on the account. The defendant was advised in writing by the claimants that the two employees ‘[are] authorized to confirm bank transfers…’ The signatures that appeared on the cheques on which payments were made were the forged signatures of authorized officers whose specimen signatures were submitted to the defendant.

9 The claimant claims that the defendant has breached its contract and acted negligently in debiting its account when none of the signatories authorized by it had signed those cheques and none of those persons had been contacted by the defendant although their specimen signatures were given to the defendant when the accounts were opened.

10 It seeks, by way of relief, a declaration that the debiting of the account by the defendant was unauthorized; damages in the sum of $34,439,818.24 for breach of contract and/or negligence; interest and costs.

The defence

11 In its Amended Defence filed 18 August 2008, the defendant denies liability for breach of contract and negligence as alleged. It admits that the claimant had furnished it with a list of persons who were authorized to sign on its behalf and that it was also advised that Carla Campbell and Janice Carruthers were authorized to confirm bank transfers on behalf of the claimant. It, however, avers that it had no grounds for believing that the cheques were fraudulently prepared or presented and the cheques appeared in all respects to have been drawn and issued by the claimant.

12 The defendant further avers that the claimant is not entitled to the reliefs or any relief being sought as it is the claimant that has breached the contract between them. It is not liable for any loss allegedly suffered by the claimant and it will rely on the Agreements relating to the opening of the accounts for their full terms and effect in support of its case.

Chronology since case management conference

13 After several interim processes, including the hearing of an application by the defendant for summary judgment, case management conference took place before Beckford, J on 13 April 2012. The usual case management orders were made by the learned judge. All orders were to be complied with by the parties within a time frame laid down by the court extending for a period from 29 June 2012 to 7 December 2012. Pretrial review was fixed for 19 December 2012 and trial for 27 February 2013. The claimant failed to comply fully with the case management orders within the time stipulated.

14 On 9 November 2012, an application for order for specific disclosure was filed and served by the defendant on the basis that it was evident from the claimant's statement of case and affidavit evidence that it had documents that it did not disclose.

15 The defendant's attorneys-at-law, again, by letter dated 11 December 2012 wrote to the claimant's attorneys- at- law concerning the claimant's non-compliance with the case management orders and enquired whether the claimant still intended to pursue the claim. The claimant failed to comply.

16 On 18 December 2012, being one day before the scheduled pre-trial review, the defendant filed an application to strike out the claim (the first application to strike out). It was on this same date that the claimant filed a listing questionnaire and a statement of facts and issues which were, by then, out of time. It also filed an application for relief from sanctions and extension of time within which to comply with certain orders.

17 On the date of the pre-trial review, 19 December 2012, three applications were listed before McDonald, J. Those were the application for order for specific disclosure, the defendant's first application for striking out and the claimant's application for relief from sanction and extension of time. The court documents were not before the learned judge and the judge expressed reluctance to deal with the applications. The parties, however, before going into the judge's chambers had come to some agreement as to how the applications should be dealt with. They agreed the terms of the orders that would be made and these were dictated by Mr. Hylton, Q.C. to the learned judge who made the orders accordingly.

18 It was within that context, that the orders were made on the defendant's application for specific disclosure and on the claimant's application for relief from sanction and extension of time. The defendant did not pursue its first application to strike out the claimant's case. The claimant's documents filed up to then were permitted to stand and all other orders in issue on the applications were to be complied with by the claimant on or before 28 December 2012. McDonald, J also made an ‘unless order’ in respect of the filing of witness statements in terms that if the claimant should fail to comply with that order on or before 28 December 2012, its claim should stand struck out.

19 The formal order signed by...