Eureka Medical Ltd v Life of Jamaica Ltd and Others

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 12 October 2005
• Judgment citation (vLex): [2005] 10 JJC 1201
• Court: Supreme Court (Jamaica)
• Date: 12 October 2005

JUDGMENT

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

EUREKA MEDICAL LIMITED

CLAIMANT

AND

LIFE OF JAMAICA LIMITED

DEFENDANT

AND BETWEEN

LIFE OF JAMAICA LIMITED

ANCILLARY CLAIMANT

AND

EUREKA MEDICAL LIMITED

ANCILLARY DEFENDANT

LANDLORD AND TENANT - Summary judgment - Order for

Mangatal J

1 1. I apologize for the delay in delivering this judgment. I also must at the outset thank Counsel for both sides for the clear and thorough submissions which greatly assisted me in arriving at my decision. Eureka Medical Limited "Eureka" was at a particular point in time formerly the tenant of Life of Jamaica Limited "L.O.J" at premises 1 Eureka Road, Kingston 5. On or about the 13th of March, 2003 L.O.J. retook possession of the premises. The substantive claim in this case is concerned with, on the one hand. Eureka's claim that it was wrongfully evicted in breach of a revocable contractual license without reasonable notice, and on the other hand, L.O.J.'s counterclaim for arrears of rental, water rates, and insurance premiums.

2 2. On the 26 ^th of January 2004, a case management conference was adjourned to the 31 ^st of March 2004 for determination of the issue of whether L.O.J. can obtain Judgment on admissions made by Eureka to L.O.J.'s Counterclaim notwithstanding Eureka's Defence claiming to set off against L.O.J.'s Counterclaim so much of Eureka's claim as will wholly extinguish the Counterclaim.

3 3. On the 31 ^st of March 2004 L.O.J. made a new application, which was filed on the 29 ^th March 2004, seeking the following orders on behalf of L.O.J.:

4 舦 The Statements of Case of Eureka be struck out on the basis that there are no reasonable grounds for bringing the Claim or defending the Counterclaim pursuant to Part 26. 3(1) (c) of the Civil Procedure Rules 2002.)

5 舦 Summary Judgment be entered in favour of L.O.J against Eureka on the grounds that Eureka has no real prospect of succeeding on the Claim or issue or of successfully defending the claim or issue.

6 It is these combined applications that were heard and determined by me at an adjourned hearing and in respect of which I reserved judgment.

7 4. The starting point for considering whether Summary Judgment should be granted is Part 15 of the Civil Procedure Rules 2002( C.P.R.). Part 15.2 states that:

The court may give summary judgment on the claim or on a particular issue if it considers that-

i. the claimant has no real prospect of succeeding on the claim or the issue; or ii. the defendant has no real prospect of successfully defending the claim or issue.

8 5. Part 15.5 requires that the parties file affidavit evidence in support of their arguments for or against summary judgment. Eureka filed two Affidavits sworn to by Neville Hume. Eureka's Managing Director, filed March 23 and August 23 2004. L.O.J. filed the Affidavit of Janice Taffe. Vice President and Legal Counsel of L.O.J., filed June 28 2004.

9 6. Rule 26.3 (l)(c) states:

26.3(1) In addition to any other powers under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court-

....(c) that the statement of case or part to be struck out discloses no reasonable grounds for bringing or defending a claim...

10 7. The test for real prospect of success as referred to in the English rules(Rule 24.2) was discussed in Swain v. Hillman [2001] 1 All E.R. 91, a decision of the English Court of Appeal. In our jurisdiction, my brother Anderson J in Caribbean Outlets Limited v. Beverley Barakat C.L. 2002 C145 delivered May 19 2004, adopted the English Court of Appeals test. Lord Woolf MR in elucidating the test in Swain, page 92 j. indicated that in order to dispose summarily of a case, the judge has to be satisfied that there was no realistic chance of the case succeeding. The word "real" is in contra-distinction to a fanciful prospect of success. For the proper disposal of an issue under our summary judgment rules, like the English rules, the judge ought not to conduct a mini-trial. Summary judgment is really designed to deal with cases that do not merit trial at all. In Swain page 92 g-h. Lord Woolf discussed the English rule 3.4. which is essentially in the same terms as our Rule 26.3(1) (c) and deals with striking out a statement of case or part of it. He states:

Clearly, there is a relationship between r.3.4 and r. 24.2. However, the power of the court under Pt. 24, the grounds are set out in r. 24.2, are wider than those contained in r. 3.4. The reason for the contrast in language between r. 3.4 and r. 24.2 is because under r. 3.4, unlike r. 24.2, the court generally is only concerned with the statement of case which it is alleged discloses no reasonable grounds for bringing or defending the claim.

11 It would seem to me that in relation to Rule 26.3 (1) (c), unlike Rule 15.2. the court is not permitted to have regard to anything but the statement of case and is to make its decision strictly on the terms and contents of the statement of case.

12 8. In Three Rivers DC v. Bank of England (2001) 2 All ER 513, a majority decision of the House of Lords, at paragraphs 94 and 92 541 j and 542 g, Lord Hope, who delivered one of the majority judgments, stated that the question whether a claim has no real prospect of succeeding at trial is a question that has to be answered having regard to the overriding objective of dealing with the case justly. Like the English Rules, the overriding objective of our Rules ( Rule 1.1 of the C.P.R.) is to enable the court to deal with cases justly. Lord Hope expressed the view that in more difficult and complex cases attention to the overriding objective of dealing with the case justly is likely to be more important than a search for the precise meaning of the summary judgment rule. At paragraphs 94 and 95 542g,h and 543 a and b Lord Hope gives what I consider to be useful guidance for interpreting how our own rules should be operated:

But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is- what is to be the scope of that inquiry? I would approach that further question this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf MR said in Swain's case [2001] 1 All ER 91 at 95. that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.

13 8A. The broad issues are:

• (a) Whether Eureka has a real prospect of succeeding in establishing that Eureka was, at the time of the eviction exercise, a contractual licensee entitled to reasonable notice of three months.

• (b) In the alternative, whether Eureka has any real prospect of succeeding in establishing that L.O.J. made certain representations by its letters and conduct upon which Eureka relied to its detriment. The question here is whether L.O.J. was estopped from exercising its strict rights without giving reasonable notice of three months.

• (c) Whether Eureka has any reasonable prospect of succeeding in its defence against the ancillary claim.

• (d) Whether Eureka's statements of case show any reasonable grounds for bringing the claim or defending the ancillary/ counterclaim.

14 9. The facts agreed by the parties are as follows:

• (a) Eureka was until on or about the 13 ^th of March 2003 in occupation of 1 Eureka Road, Kingston 5 in the Parish of Saint Andrew. These premises are owned by L.O.J.

• (b) There had been a ten year lease between Eureka and L.O.J*s predecessor in title which commenced in 1988 and which lease required payment of rental on a monthly basis. Eureka remained on the premises after the expiration of the lease term in 1998 and was required to pay rental monthly in advance.

• (c) The premises are exempt from the Rent Restriction Act.

• (d) Eureka received notices to quit dated July 30 2002 and August 30 2002. The notice to quit dated 30 ^th August 2002 determined the tenancy on 30 ^th September 2002.

• (e) Eureka ceased 10 occupy the premises on or about the 13 ^th of March 2003 or a few weeks thereafter when L.O.J. re-took possession of the premises.

15 10. L.O.J. contends that it re-took possession in keeping with the Notice to Quit dated the 30 ^th of August 2002, served on the same date, and pursuant to its exemption certificate. L.O.J. maintains that subsequent to the termination of the tenancy by notice, it did not enter into any new arrangement, whether expressly, impliedly, or by conduct or representations with Eureka giving rise to a contractual licence.

16 11. Eureka on the other hand contends that by...