Desmond Kinlock v Denny Mcfarlane v Patrick Campbell v Attorney General v Commissioner of Police v Commissioner of Corrections v June Spence-Jarrett v Hector Smith

• Jurisdiction: Jamaica
• Judge: Palmer, J.
• Judgment Date: 15 February 2019
• Neutral Citation: [2019] JMSC Civ 20
• Date: 15 February 2019
• Docket Number: CLAIM NO. 2013 HCV01350
• Court: Supreme Court (Jamaica)

Between:

Desmond Kinlock

Claimant

and

Denny Mcfarlane

1 ^st Defendant

Patrick Campbell

2 ^nd Defendant

Attorney General

3 ^rd Defendant

Commissioner of Police

4 ^th Defendant

Commissioner of Corrections

5 ^th Defendant

June Spence-Jarrett

6 ^th Defendant

Hector Smith

7 ^th Defendant

[2019] JMSC Civ 20

Palmer, J.

CLAIM NO. 2013 HCV01350

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Application for extension of time to file defence — Application to strike out of statement of case for being prolix — Application to strike out the case against the other Defendants as the Attorney General is the proper party to the claim — Application to strike out the statement of case that refers to Breach of Social contract — CPR rules 8.9, 8.9A, 26.3(1)(c), (d) and 34.2 — Crown Proceedings Act — Request for information

IN CHAMBERS

Paul Beswick, Angel Beswick-Reid and N. Cotterell instructed by Ballentyne, Beswick & Company for the Claimant.

Carla Thomas instructed by the Director of State Proceedings for the Defendants

Palmer, J.

Background

1 In this claim, the Claimant is seeking to recover damages for assault and battery, false imprisonment, malicious prosecution, injurious falsehood, misfeasance in public office, breach of social contract and breach of various constitutional rights arising from an incident that are alleged to have commenced with him being taken from his home on December 15, 2009 at his home, his later detention and subsequent prosecution. This application is brought before the court because of the amended Particulars of Claim dated March 28, 2013 filed by the Claimant which the Defendants have alleged is prolix and repetitive. The statement of case contains 30 pages and 57 paragraphs which the Defendants/Applicants assert include certain paragraphs which offend the rule of pleadings which is that only material facts relevant to the claim must be pleaded.

The Applications

2 By their further amended Notice of Application for Court Orders filed on November 8, 2013 the Defendants/Applicants sought orders as follows:

• (i) That the parts of the Claimant's Amended Particulars of Claim identified in the Affidavit filed on behalf of the 3 ^rd Defendant on May 2013 in support of this application be struck out as being prolix pursuant to Rule 26.3 (1) (d) of the Civil Procedure Rules 2002;

• (ii) That the Claimant's claim for breach of social contract be struck out as disclosing no reasonable ground for bringing the claim pursuant to Rule 26.3 (1) (c) of the CPR;

• (iii) That the claim be struck out in its entirety as against the 1 ^st, 2 ^nd, 4 ^th, 5 ^th, 6 ^th and 7 ^th Defendants pursuant to Rule 26.3 (i) (c) of the Civil Procedure Rules;

• (iv) In the alternative, that the Defendants be permitted to file and serve a Defence out of time and within fourteen (14) days of the hearing of this Application.

3 The grounds on which the application were made:

• (i) The Amended Particulars of Claim filed and served on behalf of the Claimant is prolix;

• (ii) Social contract, on which the Claimant seeks relief, is not a cause of action known to law in this jurisdiction;

• (iii) Pursuant to the Crown Proceedings Act, the only proper party to the claim is the 3 ^rd Defendant;

• (iv) That in the alternative the Applicants rely on Rules 26.1 (2) (c)

4 The Claimant's Notice of Application for Court Orders filed on May 13, 2013 sought orders for a default judgment against the 4 ^th and 5 ^th Defendants on the following grounds:

• (i) Pursuant to CPR rule 12.3 (6) the Claimant requires permission from the Court to make an application for default judgment against arms or agents of the Jamaican State and/or agents of the Crown;

• (ii) On the 5 ^th of March 2013 both the 4 ^th and 5 ^th Defendants were served with copies of the Amended Claim Form and Amended Particulars of Claim;

• (iii) On the 2 ^nd April, 2013 both the 4 ^th and 5 ^th Defendants were served with copies of the Amended Claim Form and Amended Particulars of Claim;

• (iv) On the 19 ^th March, 2013, the 3 ^rd Defendant filed an Acknowledgment of Service wherein they stated that they are acting for and behalf of the 3 ^rd Defendant alone;

• (v) As a result, the 4 ^th and 5 ^th Defendants have failed to file an Acknowledgement of Service on either the 19 ^th March, 2013 in relation to the original Claim Form and Particulars of Claim or on the 16 ^th April, 2013 in relation to the Amended Claim Form and Amended Particulars of Claim.

5 In the Notice of application for Court Orders filed on August 14, 2013 judgment in default was sought against the 3 ^rd Defendant for judgment in default of filing a defence. A similar chronology was outlined save that the original Claim was said to have been served on March 4, 2013. Orders were also sought by the Claimant regarding a request for information from the 4 ^th and 5 ^th Defendants regarding the identity of several of their servants and/or agents. By the Notice of application for Court Orders filed on April 4, 2014 the Claimant sought the following:

• (i) That the 4 ^th Defendant, the Commissioner of Police is hereby ordered to provide to the Applicants Attorneys-at-Law, the names and ranks of the Police officers from the Elleston Road Police station who interrogated the Applicant on or about the 15 ^th December, 2009;

• (ii) That the 5 ^th Defendant, the Commissioner of Corrections, is hereby ordered to provide the Applicant's Attorneys-at-Law, the names of the remaining members of the management team, Supervisors and Corrections officers who were on duty at the Horizon Remand Centre over the course of the ‘food riot’ in February 2010;

Submissions

Defendant's submissions

6 The Defendants listed a number of paragraphs that they were of the view ought to be struck out as either being prolix or as disclosing no reasonable grounds for bringing the claim. The Court, it was submitted, is empowered pursuant to Rule 26.3 (1) (d) of the Civil Procedure Rules 2002 (‘the CPR”) to strike out the stated portions of the statement of case because it is prolix. Reliance was placed on the Court of Appeal case of Davey v Garrett [1878] 7 Ch. D. 473 in which the decision of the first instance judge not to strike out the statement of claim for prolixity was overturned. Baggallay LJ defined prolix by stating that that it may refer to two different things: too lengthy statement of necessary facts, or to the statement of facts unnecessary to be stated. This, the learned judge opined was because:

the statement of necessary facts tends to embarrass the Defendant. Here I think that the statement is embarrassing, both from the excessive length at which the statements of necessary facts are set out, and from the statement of unnecessary facts”

7 It was submitted that a statement of case ought not to contain evidence, submissions and irrelevant material calculated to unduly occupy the resources of the other party in responding to same or to embarrass the other party. It was proposed by the Claimant that the instant pleadings are replete with prolix and that the offending sections ought to be struck out and the pleadings amended before the Defendants are called upon to answer.

8 On the claim for breach of social contract it was submitted that there is no such claim known to the civil law in Jamaica and accordingly is not one that is justiciable before this Court. The portions of the Claim that make reference to that cause of action ought therefore, it was submitted, to be struck out. Reliance was placed on the authorities of Sebol Limited and another v Ken Tomlinson et al SCCA no. 115/2007, unreported judgment delivered December 12, 2008 and Bentley Rose v City of Kingston Co-operative credit Union Limited Claim no. 2008HCV02180, unreported judgment delivered January 15, 2010. In Sebol Limited the first instance decision of Sykes J was affirmed that it was not sufficient for there to be a cause of action pleaded that was known to law, no matter how loosely the facts pleaded supported the existence of the cause of action against the Defendant but also that there needs to be a reasonable ground for bringing the claim in keeping with the overriding objective. It was therefore submitted that in the circumstance of this application that a claim for breach of social contract ought not to have been brought against the Defendants and therefore that paragraphs 50 —56 and 57 (j) ought to be struck out.

9 It was submitted further that the claim is brought against Crown servants in their personal capacity, whilst it alleged that they were at all material times acting on the course of their duties as such. Where a party is not being alleged to have gone on a frolic of his own but was acting in the course of his duties as a Crown servant, the only proper party to the claim for damages arising from the alleged commission of a tort is the Attorney General.

10 The Crown Proceedings Act 1959 it was submitted at sections 3 (1) and 13 (2) stated how such claims ought to be treated and is an issue settled in Attorney General v Gladstone Miller SCCSA no. 95 of 1997 unreported judgment delivered May 24, 2000. In that case the Court of Appeal held that default judgments entered against the Crown servant was irregular and that in keeping with the provisions of the Crown Proceedings Act, the proper party was the Attorney General. The position in Gladstone Miller was affirmed in Peter Kavanaugh v The Attorney General and Det. Insp. Carey Lawes [2012] JMSC Civ. 154. Accordingly, it was submitted that the claim out to be struck out as against the, 1 ^st, 2 ^nd, 4 ^th, 5 ^th, 6 ^th and 7 ^th Defendants.

11 Further in relation to the 4 ^th and 5 ^th Defendants in particular, it was submitted that as confirmed in the decision of Lewis v Minister of Labour and National Insurance et al (1966) 9 WIR 549 the advent of the Crown Proceedings Act did not allow for Crown servants who could previously only have...