Michael Williams v Ian Ellis and Others

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Bertram-Linton,Master-In-Chambers (AG.)
• Judgment Date: 04 June 2012
• Neutral Citation: [2012] JMSC Civ 103
• Docket Number: CLAIM NO. 2011 HCV 05275
• Date: 04 June 2012

[2012] JMSC Civ. 103

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV 05275

Between

Michael ‘Keyboard Money Mike’ Williams

Claimant

and

Ian ‘Ity’ Ellis

1st Defendant

and

Alton ‘Fancy Cat’ Hardware

2nd Defendant

and

Ellis International

3rd Defendant

Mr. Chukwuemeka Cameron instructed by Carolyn Reid & Company for claimant.

Ms. Stacy Mitchell , Mr. Courtney Smith and Ms. Karen Campbell-Bascoe instructed by Foga Daley & Company for defendants.

SECURITY FOR COSTS — CLAIMANT NOT ORDINARILY RESIDENT IN JURISDICTION — APPLICATION TO STRIKE OUT STATEMENT OF CASE

Bertram-Linton Master-In-Chambers (AG.)

1 For decision before us today are two remaining issues. I say remaining as in the truest tradition of the inherent powers of Case Management of this office we have managed to narrow the issues and dispose of the others that were contained in applications filed on the 28 ^th October, 2011 and 7 ^th May, 2012.

2 We then need to address applications by defendant for:

• (a) An application to strike out the claimant's statement of case against the 1st and 2nd defendants; and

• (b) Security for costs .

BACKGROUND

3 The substantive Claim for trial is one for damages for copyright infringement and alleges that sums are due to the claimant in respect of profits from a television series.

APPLICATION TO STRIKE OUT CLAIMANT'S STATEMENT OF CASE AGAINST 1ST AND 2ND DEFENDANTS

4 There is before the court an application to strike the statement of case against the 1 ^st and 2 ^nd defendants.

5 Ms. Mitchell contends that the whole Fixed Date Claim Form is directed to the 3 ^rd defendant company and rightly so because it was the company with which the claimant had any agreements. The 2 ^nd defendant she contends is not a director but merely an employee and as such has no business being sued in this capacity. Likewise, she says, the 1 ^st defendant never acted in his personal capacity and as such is wrongfully named/sued.

6 In addition, all the issues seem to refer to the defendants' jointly and are never clear as to which defendant did what and in what capacity they may have acted. Rule 26.3 (1) (c) asserts:

In addition to any other powers under the 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 the part to be struck out discloses no reasonable grounds for bringing or defending a claim;

7 Mr. Cameron's contention is that there are issues to be addressed which arose prior to the company's involvement and for which the 1 ^st and 2 ^nd defendant should answer individually. In particular he directs the court to an email which was sent to the 1 ^st defendant sometime in April 2008.

8 He also says that the enquiry to be done for alleged infringement of copyright is essential to this claim and it is the 1 ^st and 2 ^nd defendants to whom this is directed as outlined in the Fixed Date Claim Form paragraph 3 et seq.

9 He submits as to finding it strange that the 1 ^st and 2 ^nd defendants are anxilliary claimants if the defendant's are contending that only the 3 ^rd defendant was a party to the contract entered into with the claimant.

10 This point has already been conceded by counsel for the defendants who has given an undertaking to amend and as such withdraw them as anxilliary claimants. Kodilinye's Commonwealth Caribbean Civil Procedure 2 ^nd edition at page 332 states:

‘Striking out will be refused if the court would be required to conduct a protracted examination of documents. On the other hand, the documents may clearly show that there is no sustainable case.’

11 When the court reviews the copious documents filed in this action the court finds that the issues raised in the Fixed Date Claim Form and the orders sought should proceed apace as filed.

12 It is accepted that the level of particularization is not as precise as it could have been, but the court is satisfied that this aspect of the issues is best thrashed out when the evidence is heard in a detailed way at trial. Throughout the documentation, it appears one is never quite sure who is acting and in what capacity in the various meetings and arrangements averred. According to Kodilinye's Commonwealth Caribbean Civil Procedure 2 ^nd edition at page 332:-

‘Rather than striking out, the court may allow a statement of case to be amended, provided that the circumstances are such that amendment would accord with the overriding objective.’

13 In order to realize the overriding objective, which favours a full trial on the merits here I am satisfied that the parties should remain as originally filed as the matter goes forward to trial and the evidence be allowed to unfold as to the various roles played in the saga.

14 The application to strike out the statement of case as against the 1 ^st and 2 ^nd defendants is therefore refused with costs to the claimant to be agreed or taxed.

APPLICATION FOR SECURITY FOR COSTS

15 The defendants' application for security for costs was filed on March 9, 2012 and is seeking to move the court in respect of its powers under Part 24.2 of the Civil Procedure Rules 2002 which says:

• (1) A defendant in any proceedings may apply for an order requiring the claimant to give security for the defendant's costs of the proceedings .

• (2) Where practicable such an application must be made at a case management conference or pre-trial review .

• (3) An application for security for costs must be supported by evidence on affidavit .

• (4) Where the court makes an order for security for costs, it will —

  • (a) determine the amount of security; and

  • (b) direct —

    • (i) the manner in which; and

    • (ii) the date by which

      the security is to be given .

The application is supported by the defendant's affidavit filed on the same date and sworn to by Ian Ellis on behalf all three defendants named in the suit.

16 Rule 24.3 of the Civil Procedure Rules delineates the conditions to be satisfied for the making of the order, and the relevant portions so far as it is pleaded in the application are as follows:

24.3

The court may make an order for security for costs under rule 24.2 against a claimant only if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order, and that —

(a) the claimant is ordinarily resident out of the...