Mead, Horace v CIBC (Ja) Ltd & Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: SYKES J (Ag)
• Judgment Date: 17 September 2004
• Judgment citation (vLex): [2004] 9 JJC 1701
• Date: 17 September 2004
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 1995/M —147

BETWEEN

HORACE MEAD

CLAIMANT

AND

CIBC (JA.) Ltd

FIRST DEFENDANT

AND

THE ATTORNEY GENERAL OF JAMAICA

SECOND DEFENDANT

Miss Suzette Wolfe instructed by Crafton Miller & Company for the claimant

Mr. Kent Gammon instructed by Dunn Cox for the first defendant

Mr. Peter Wilson instructed by the Director of State Proceedings for the second defendant

CIVIL PROCEDURE - Damages for false imprisonment - Applications to strike out claim for want prosecution - Inordinate and inexcusable delay - Fair trial

SYKES J (Ag)

1 APPLICATIONS TO STRIKE OUT CLAIM FOR WANT OF PROSECUTION

2 These are applications by the two defendants to strike out the claim for damages for false imprisonment made against them by the claimant. Both defendants are relying on the inherent power of the court to strike out the action for want of prosecution on the grounds of

• (1) inordinate and inexcusable delay;

• (2) prejudice to the defendants because of the delay; and

• (3) there is substantial risk that there cannot be a fair trial

3 The first defendant, through the affidavit of Mr. Kent Gammon, states that the inordinate delay is inexcusable and an abuse of the process of the Court. He also said that trial matters are now listed for 2007 which means that the earliest possible trial date will be thirteen (13) years after the incident. The second defendant, speaking through Mr. Peter Wilson, swore in his affidavit that because of the delay there is a substantial risk that he would be unable, properly, to meet the claimant's case.

4 In order to decide this case the critical first question is what are the correct legal principles to be applied to this application? The second is how should the principles be applied to this case? The answer to this second question will involve an analysis of the affidavits of the defendants.

5 A necessary step towards resolving this matter is to have a clear understanding of the chronology of events up to the time of these applications and the allegations that led to the claim being filed.

6 The chronology of events

• (1) The alleged cause action arose in October 1994;

• (2) The writ of summons and statement of claim were filed on April 10, 1995;

• (3) The first defendant filed its defence on July 26, 1995 to which a reply was filed on August 14, 1995;

• (4) The second defendant filed his defence on March 25, 1996;

• (5) On May 17, 1996 the claimant filed an application to strike out the defence of the Attorney General and to enter judgment against him;

• (6) The Attorney General responded by applying, on October 24, 1996, to amend his defence or in the alternative to strike out the cause of action against him on the grounds that it disclosed no reasonable cause of action;

• (7) The summons to amend defence was adjourned in order to hear the application to strike out defence that was filed on May 17, 1996;

• (8) On May 20, 1997 the summons to amend defence was withdrawn and the summons to strike out defence was adjourned to June 3, 1997 because the claimant wished to do further research;

• (9) On June 3, 1997 the claimant withdrew his summons to strike out defence;

• (10) The reply to the Attorney General's defence was filed on July 22, 1997;

• (11) On April 19, 1999 the claimant filed a notice of intention to proceed;

• (12) A letter dated December 12, 2003 was written to the Registrar of the Supreme Court asking for a case management conference.

7 The significance of the letter of December 12, 2003 is this: under the Civil Procedure Rules (CPR) failure to apply for a case management conference by December 31, 2003 would result in an automatic striking out of all claims and counter claims that were filed before the new rules came into effect on January 1, 2003 (see rule 73(7)).

8 As can be seen from this chronology the claimant did nothing between April 19, 1999 and December 12, 2003. I will now look at the pleadings.

9 The cause of action

10 Mr. Mead is an entrepreneur. He believed that he would find his fortune in the ground transportation industry. To this end he borrowed money from CIBC Jamaica Limited (CIBC), the first defendant. The money was used to purchase two buses. Though no one has expressly admitted this, it appears that CIBC thought that Mr. Mead was either in arrears or otherwise in breach of some condition of the loan agreement. The first defendant sought to enforce the Bill of Sale it had over the two buses. Some contact was made with the police by CIBC which resulted in Mr. Mead being arrested by the police.

11 CIBC in its defence to the claim for false imprisonment says that the claimant sought "to prevent the First Defendant (sic) from realizing on the said secured property to collect the sums lawfully owed to the First Defendant by the [claimant], which sum the [claimant] has intentionally refused to repay to the First Defendant."

12 Mr. Mead's travails were only beginning. He was taken into custody on October 23, 1994 by the police in May Pen then transported to the Mandeville Police Station where he was detained until October 24, 1994. The second defendant states in his defence that "it was reasonably suspected that the [claimant] had committed the offence of obtaining money by false pretence." The second defendant particularises further by adding that not only was Mr. Mead a debtor to CIBC for a sum in excess of two million dollars (JA$2,000,000) but he sold the buses that were used to secure the loan, collected the proceeds of sale and refused to repay the loan. The Attorney General concludes by saying "[i]n the premises the said arrest and imprisonment of the [claimant] was lawful and justifiable."

13 All this was in response to the claimant's action for false imprisonment filed April 10, 1995.

14 I pause to make some observations on the offence allegedly committed by Mr. Mead. The Attorney General says that the offence is obtaining money by false pretence. The critical question is to whom was the pretence made and from whom was money obtained because of the false pretence? There is no allegation that Mr. Mead made any false pretence to CIBC. In fact CIBC alleges that the Bill of Sale they wanted to enforce were valid and enforceable. Thus it cannot be said that Mr. Mead obtained the loan by any false pretence. Since no one else was identified as the potential victim of Mr. Mead's false pretence it is extremely difficult to see the lawful justification for Mr. Mead's detention. There is nothing to suggest that the alleged purchaser of the buses had made any complaint to the police that Mr. Mead falsely pretended that he (Mead) could sell unencumbered buses to him. This to my mind would be the most likely false pretence that he could have made in the circumstances of this case but no one has suggested that this is the false pretence in view.

15 I return to the matter at hand. Is there an explanation for the long delay between April 19, 1999 and December 12, 2003? Miss Vivette Miller-Thwaites, an attorney at law, of the firm of Crafton Miller and Company in her affidavit filed August 25, 2004 provided a terse explanation. She says that the attorney at law who had conduct of the matter left the firm. The attorney did not assign the file to another attorney before leaving. The file was inadvertently misplaced and only found in 2003. The affidavit does not say when in 2003 the file was found.

16 The legal principles

17 It is no secret...