Clarke (William) v Bank of Nova Scotia Jamaica Ltd, Pavement and Structures Ltd, Cybercrimes Investigations & Research Unit, Cable & Wireless Jamaica Ltd and Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | BROOKS, J. |
| Judgment Date | 23 February 2010 |
| Judgment citation (vLex) | [2010] 2 JJC 2302 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2009 HCV 05137 |
| Date | 23 February 2010 |
Civil Practice — Pre-Claim Applicatiion for discovery — Whether Court has the jurisdiction to grant — Whether party required to disclose may claim privilege that disclosure may incriminate them — Principles guiding court- CPR rr. 8.1,11.12,17.1, 17.2, 25.1. 27.9, 28.6
CIVIL PROCEDURE - Discovery - Pre-claim application for - Whether Court has the jurisdiction to grant - Whether partty required to disclose may claim privilege that disclosure may incriminate them - Principles guiding court - Civil Procedure Rules, Rules 8.1, 11.12, 17.1, 17.2, 25.1, 27.9, 28.6
The name William "Bill" Clarke has been a household name in Jamaica for many years. Associating that name with less than honourable activity is therefore likely to draw attention and comment. Mr. Clarke alleges that such an association has, in fact, been, wrongfully made. The problem is that he does not know who has perpetrated the act. It was done between April and July 2009, through a medium known as "Facebook", which is a social networking website on the Internet. Mr. Clarke alleges that a false profile of him was created on "Facebook". He says that some of the content of that profile defames him.
He has brought this application to have the court order the discovery, preservation and inspection of information relevant to the use of the profile. This information, he says, is likely to reveal the identity of the perpetrator so that he can institute a claim against that person or entity.
In this preliminary application he has sought relief against five entities. The first is his former employer Bank of Nova Scotia Jamaica Ltd. (BNS). The second is Pavement and Structures Ltd. an engineering and construction company. These two entities have been identified by their internet service provider, Cable and Wireless Jamaica Limited (C & W), (the 4 th entity) as having been assigned Internet Protocol (IP) addresses which have actually accessed that "Facebook" site. The Cybercrimes Investigations and Research Unit of the Jamaica Constabulary Force (the 3 rd entity) has, on Mr. Clarke's complaint, seized equipment and copied data belonging to Pavement and Structures. The 5 th entity. The Attorney General for Jamaica is joined because of the involvement of the Cybercrimes Unit.
In deciding whether to grant Mr. Clarke's application, the questions to be answered are:
"...the popular social networking site, Facebook, which was started at Harvard several years ago, spread to university networks on both sides of the Atlantic, migrated from the universities cis its users graduated..."
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1. Does this court have the jurisdiction to order discovery, preservation and inspection of the Respondents' equipment and property prior to a claim being filed against them or any of them?
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2. Does the fact that Mr. Clarke; has made a complaint to the police about the false profile entitle BNS and/or Pavement and Structures to refuse inspection on the basis that information might be discovered which incriminates them or either of them?
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3. Does the subsequent filing of a claim by Mr. Clarke affect the current application?
Before dealing with those questions it may be of assistance in understanding the context of the case, to repeat an outline of the origin and proliferation of the use of "Facebook" as given by Richard Parkes QC at paragraph 2 in Applause Store Productions Ltd. and another v Raphael [2008] EWHC 1781 (QB):
Does this court have the jurisdiction to order discovery, preservation and inspection of the Respondents' equipment and property prior to a claim being filed against them or any of them?
Learned counsel for BNS, Miss Lightbourne, submitted that this court has no jurisdiction to make the orders sought by Mr. Clarke. She submitted that, unlike the provisions of the relevant statutes and rules in England, our statutes and rules do not provide the authority for the court to make these orders. The submission, as I understand it, may be summarized as follows:
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a. The court does not have the inherent power to order preaction disclosun. There is also no statute or mle of procedure which gives this court the jurisdiction to order pre-action disclosure.
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b. The Civil Procedure Rules 2002 (the CPR) delimits the circumstances m which an application may be made for an interim remedy. The relevant provision is rule 17.2. Mr. Clarke's case does not fall within the provisions of that rule. The overriding objective does not permit the court to grant an order for pre-action disclosure because there is no substantive rule which may be interpreted, or substantive power which may be exercised, in that way.
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c. The pre-action procedure utilised to secure information in cases such as Norwich Pharmacal Co. v Customs and Excise Commissioners [1971] AC 133 applies to innocent third parties and is not for alleged wrongdoers. It is not relevant.
The Judicature (Supreme Court) Act
It is important to note that certain provisions of the Judicature (Supreme Court) Act grant to this court the power to exercise the authority once belonging to the Court of Chancery. Section 48 (a) of that Act requires this court to give to an applicant, who claims equitable relief founded upon a legal right, "such and the same relief as ought to have been given by the Court of Chancery before the passing of [the] Act". Section 49 (h) authorises this court to grant injunctions and similar types of relief. It does not place a restriction on the time at which the court may grant that relief.
Lord Denning M.R. in Anton Piller KG v Manufacturing Processes Ltd. and Others [1976] 1 Ch 55, made it clear that the Court does have an inherent jurisdiction to order entry and inspection of a party's premises especially after a hearing where both parties are present. (See pages 60 H — 61 B) He went on to say that the order may also be made without notice:
"It seems to me that such an order can be made by a judge ex parte , but it should only be made where it is essential that the plaintiff should have inspection so that justice can be done between the parties: and when, if the defendant were forewarned, there is a grave danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden, or taken beyond the jurisdiction, and so the ends of justice be defeated: and when the inspection would do no real harm to the defendant or his case."
The broad jurisdiction having been established, it may now be determined whether any rules of procedure provide a restriction. I shall, therefore, examine the relevant provisions of the CPR.
The Relevant Provisions of the Civil Procedure Rules
The relevant provisions of the CPR may be considered in two separate contexts; within and outside of the provisions of Part 17. I first consider those outside of Part 17.
Rule 8.1 (5) allows an application for a remedy before proceedings have started, that is, before a claim form has been filed. It specifies that the remedy must be sought by way of an application made under Part 11.
Part 11, in addition to stipulating the form and procedure concerning applications, also gives guidance as to the way the court may deal with such applications. For these purposes, it is relevant to point to mle 11.12 (4). The latter rule authorises the court to exercise any power which it might exercise at a case management conference.
It is beyond question that at a case management conference the court has many powers. These include identifying the essence of the case and bringing it to a state to allow an efficient trial. It is appropriate to point out that rule 27.9 (1) (a) obliges the court, at a case management conference, to consider whether to give directions for standard disclosure and inspection. Rule 28.6 (2) allows a court to order specific disclosure on or without an application. Finally, rule 28.6 (3) allows an application for specific disclosure to be made at a case management conference.
Apart from the powers of case management mentioned above, rule 25.1 (m) requires the court to ensure that no party gains an...
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