Caricom Investments Ltd v National Commercial Bank Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Laing, J
• Judgment Date: 16 December 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU 2019 CD 00231 (formerly C.L. 2005 HCV 1884)
• Date: 16 December 2019

[2019] JMCC Comm 38

In the Supreme Court of Judicature of Jamaica

CLAIM NO. SU 2019 CD 00231 (formerly C.L. 2005 HCV 1884)

Between

Caricom Investments Limited

1 ^st Claimant

Caricom Hotels Limited

2 ^nd Claimant

Caricom Properties Limited

3 ^rd Claimant

and

National Commercial Bank Jamaica

1 ^st Defendant

Rio Blanco Development Limited (in Receivership)

2 ^nd

Estate Of Karl Aird (deceased) (Receiver of Rio Blanco Development Limited)

3 ^rd Defendant

IN CHAMBERS

Mrs Caroline Hay QC and Mr Neco Pagon instructed by Braham Legal, Attorneys- at-law for the Claimants

Mr Charles E Piper QC, Ms Carlene Larmond and Mr D'Angelo Foster instructed by Charles E Piper & Associates, Attorneys-at-law for the Defendants

Civil Procedure — Application for permission to further amend Claimant's statement of case prior to re-trial of the claim pursuant to an order of the Court of Appeal — Factors to be considered in exercise of Court's discretion

Laing, J

The Background

1 The litigation which forms the basis for this claim was commenced by the 1 ^st Claimant, by Claim Form filed in Claim Number 2005/HCV 01884 on 6 ^th July 2005. The 2 ^nd and 3 ^rd Claimants were added as parties to the claim by an Amended Claim Form filed 30 ^th September 2009.

2 The original 3 ^rd Defendant, Karl Aird, was appointed by the 1 ^st Defendant to be the Receiver of the 2 ^nd Defendant pursuant to a debenture which the 1 ^st Defendant held. Karl Aird as receiver of the 2 ^nd Defendant executed agreements for sale with the 1 ^st Claimant dated 3 ^rd May 1993. One agreement was for the sale of land, and the other was for the sale of “chattels and property”.

3 The Claimants allege that the Defendants have breached the Agreement for Sale in respect of the land and sought the following reliefs as contained in their Further Amended Claim Form filed on 2 ^nd September 2010, which was amended pursuant to an order of the Honourable Mr Justice Roy Anderson made on 1 ^st September, 2010:

“AND THE CLAIMANTS CLAIM AGAINST THE DEFENDANTS FOR:

• 1) In relation to the 1 ^st Claimant, Specific performance of Agreements for Sale dated the 3 ^rd day of May 1993 between the 1 ^st Claimant and the 2 ^nd Defendant, who acted through the 3 ^rd Defendant, the 3 ^rd Defendant having been appointed Receiver of the 2 ^nd Defendant by the 1 ^st Defendant pursuant to a Debenture of the 1 ^st Defendant.

• 2) Further or in the alternative that in the event that specific performance is not possible, a declaration that the 2 ^nd Defendant has wrongfully refused and/or neglected to hand over the Duplicate Certificates of Title and/or has wrongfully retained the Duplicate Certificates of Title in respect of the parcels of land registered at Volume 1220 Folio 921 and those registered at Volume 1230 Folios 801, 811, 812 in breach of its obligations contained in the said Agreements for Sale;

• 3) An order that the Claimants are therefore entitled to cancellation and/or rescission of the Agreement for Sale of Land dated 3 ^rd May, 1993 in accordance with Clause 5 of the said Agreement together with damages in lieu of specific performance; and/or Damages for breach of Contract .

• 4) Damages for Breach of Warranty.

• 5) Special Damages in the amount of $8,690,173,177.00 and continuing .

• 6) A refund of all monies in the amount of $77,452,885.00 paid by the Claimants to the 1 ^st Defendant up to the time of cancellation of Agreement together with interest calculated “at a rate equivalent to the best deposit rate of National Commercial Bank Jamaica Limited then prevailing on deposits as to amount similar to the amount being refunded the Purchaser” equating to $8,993,967,420.00 and continuing .

• 7) The sum equivalent to the difference between the sums paid plus interest at the lending rates charged by the Claimants' Investors who the Claimants had to repay less the amount refunded in respect of the purchase price and costs attendant on the sale of the property together with interest calculated at the average Bank of Jamaica lending rate prevailing with amounts equating to $13,677,214,145.00 and continuing .

• 8) An Order that the Claimants be indemnified for all losses suffered as a result of the suit brought by Rio Blanco Development Limited against the 1 ^st and 3 ^rd Defendants; and the caveat lodged against the Certificate of Title comprised in Volume 1229 Folio 161 registered in the name of the 3 ^rd Claimant an opportunity loss of $52,800,000 (being US$600,000.00 x JA$88.00.

• 9) Costs and Attorneys' costs.

• 10) Such further and other relief and orders as this Honourable Court shall think fit in the circumstance of the case.”

I have deliberately reproduced the amendments as underlined to reflect the extent of the previous amendments made by the Claimant to its Claim Form.

4 Following the trial of the Claim (the “First Trial”), the judgment of the Supreme Court was handed down on 20 ^th September 2018, but unfortunately, by then, the learned Judge who had heard the case, had retired from the bench.

5 On an appeal by the Claimants/Applicants, the Court of Appeal, following its earlier judgment in Paul Chen-Young and Others v Eagle Merchant Bank Jamaica Limited and Others [2018] JMCA App 7, ruled that the retirement of the trial Judge before his judgement was handed down, resulted in the First Trial before him and the consequent Judgment being a nullity.

The Application

6 By Notice of Application filed 28 ^th November 2019, the Claimants applied for various orders relating to the appointment of the 1 ^st Defendant to represent the estate of the 3 ^rd Defendant, now deceased, in respect of the continuation of this litigation and for the admission of the 3 ^rd Defendant's evidence given on oath at the First Trial. These orders are not being opposed by the Defendants/Respondents. I will therefore concentrate on the Claimant's application for permission to amend their Statement of Case and for consequential orders.

7 The Claimants' proposed amendments as reflected in their draft 4 ^th Amended Claim Form and 4 ^th Amended Particulars of Claim can be conveniently summarised in a number of main groups as follows:

• a) The particularisation of the claim for damages to include claims for misrepresentation and or negligent misstatement;

• b) The particularisation of the facts on which the claim for damages for misrepresentation and negligent misstatement are based;

• c) Pleading that at all material times the 1 ^st Defendant was vicariously liable for the acts and/or omissions or the 2 ^nd and/or 3 ^rd Defendants.

• d) An averment that the 1 ^st Defendant had a duty to act in good faith in the performance of the Agreement for Sale;

• e) An averment that the 1 ^st Defendant and or 3 ^rd Defendant (as employee for purposes of vicarious liability or otherwise and/or an agent acted in bad faith).

• f) A claim for interest at the commercial rate to be compounded; and

• g) A claim for the reimbursement of capital expenditure and operational losses plus commercial interest.

8 There is no dispute between the parties that the Court has the power to allow the amendment of statement of case generally. This is provided for by the Civil Procedure Rules (“CPR”). CPR 20.1 allows for the amendment of a statement of case at any time before the case management conference without the Court's permission (subject to certain qualifications which are not here relevant). CPR 20.4(1) provides that an application for permission to amend a statement of case may be made at the case management conference and CPR 20.4(2) provides that statements of case may only be amended after the case management conference with the permission of the Court.

9 I agree with the submission of Mrs Hay QC, that it is now settled law, that the Court can grant amendments at any time, although this is not expressly stated in our CPR. Mrs Hay also submitted, correctly so, that although the CPR offers no guidance on how the Court is to exercise is discretion, save for CPR 1.1 the overriding objective, case law fills in the lacuna.

10 By way of a comparison, it should be noted that, the Eastern Caribbean Supreme Court Civil Procedure Rules (the “ECSC CPR”) provides a list of the factors which the court should take into account in exercising its discretion on an application by a party to amend its statement of case. The ECSC CPR 20.1 provide as follows:

“Changes to statement of case

• 20.1 - (1) A statement of case may be amended once, without the court's permission, at any time prior to the date fixed by the court for the first case management conference.

• (2) The court may give permission to amend a statement of case at a case management conference or at any time on an application to the court.

• (3) When considering an application to amend a statement of case pursuant to Rule 20.1(2), the factors to which the court must have regard are -

  • (a) how promptly the applicant has applied to the court after becoming aware that the change was one which he or she wished to make;

  • (b) the prejudice to the applicant if the application were refused;

  • (c) the prejudice to the other parties if the change were permitted;

  • (d) whether any prejudice to any other party can be compensated by the payment of costs and or interest;

  • (e) whether the trial date or any likely trial date can still be met if the application is granted; and

  • (f) the administration of justice.”

Are the claims for damages for negligent misstatement, misrepresentation and vicarious liability new claims?

11 Mrs Hay submitted that in many of the cases dealing with amendments, the main issue is whether an amendment should be permitted after a period of limitation has expired and the result has often turned on the question of whether the amendment in fact amounts to a new cause of action. Learned Queen's Counsel has placed heavy reliance on the case of The Jamaica Railway Corporation v Mark Azan, ...