National Commercial Bank Jamaica Ltd v Justin O'Gilvie and Others

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Morrison JA,Dukharan JA,Brooks JA
• Judgment Date: 25 September 2015
• Neutral Citation: JM 2015 CA 93
• Docket Number: SUPREME COURT CIVIL APPEAL NO 82/2013
• Date: 25 September 2015

[2015] JMCA Civ 45

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 82/2013

Between

National Commercial Bank Jamaica Limited

Appellant

and

Justin O'Gilvie

1 ^st Respondent

and

Incomparable Enterprises Limited

2 ^nd Respondent

and

Bulls Eye Security Services Limited

3 ^rd Respondent

Mrs Sandra Minott-Phillips QC and Miss René Gayle instructed by Myers Fletcher Gordon for the appellant

Paul Beswick, Miss Carissa Bryan and Kayode Smith instructed by Ballantyne Beswick & Company for the respondents

CIVIL PROCEDURE - Setting aside - Application to set aside ruling - Whether second claim is an abuse of process and should be struck out - Whether there is a breach of constitutional rights of respondent - Whether there was discrimination by the bank.

Morrison JA

1 I have read, in draft, the reasons for judgment written by my brother Brooks JA. I agree with his reasoning and his conclusions and there is nothing which I can possibly add.

Dukharan JA

2 I too have read the draft judgment of Brooks JA. I agree with his reasoning and conclusion that the appeal should be allowed. There is nothing further that I can usefully add.

Brooks JA

3 The main issue raised by this appeal is whether a second claim by Mr Justin O'Gilvie and the companies, for which he is the principal, against National Commercial Bank Jamaica Limited (‘NCB’ or ‘the bank’), constitutes an abuse of the process of the court and ought to be struck out as such. Sykes J in a judgment handed down on 4 October 2013, ruled that it was not an abuse of process and ordered that it be tried along with the first claim. NCB is aggrieved by the decision and has appealed to this court asking that the ruling be set aside.

4 In their first claim, Mr O'Gilvie and his companies (together referred to herein as ‘the respondents’) claimed that NCB gave them insufficient notice of its intention to close their respective accounts held with the bank. In that claim the respondents sought a permanent injunction to prevent NCB from closing the accounts. The attempt to secure an interim injunction was unsuccessful and, after the bank gave a brief extension of time for their operation, the accounts were closed. There was, in that claim, an implicit acceptance by the respondents that NCB was entitled to close the accounts. They contended, however, that the bank could only do so after having given reasonable notice of its intention so to do. The issue joined in that claim is whether reasonable notice was given and whether damages would result from any failure to give such notice.

5 In the second claim, the respondents sued the Bank of Jamaica, the Asset Recovery Agency (‘the ARA’), NCB and the Attorney General. In this claim, the allegations were that the Bank of Jamaica, as the central bank, failed to regulate and direct NCB so as to prevent NCB from discriminating against the respondents. The claim against the Bank of Jamaica was struck out by Sykes J as part of the judgment mentioned above. The allegations against the ARA were that it recklessly alleged that the respondents were in possession of property derived from the criminal activity of convicted drug dealer, Mr Christopher Coke. The Attorney General has been joined pursuant to the Crown Proceedings Act. The details of the claims against those other parties are not relevant for these purposes, and will not be set out in this judgment.

6 In that second claim, the allegation against NCB was that, in closing their accounts, it had discriminated against the respondents and had therefore breached their constitutional rights. The basis for the discrimination, it was asserted, was the respondents” connections with the inner city area called ‘West Kingston’.

7 Whereas the second claim is, all things being equal, headed for a trial between the respondents on the one hand, and the ARA and the Attorney General, on the other, NCB contends that it should not be included as a party to that trial. Apart from its complaint that the learned judge reached the incorrect decision on the issue of abuse of process, NCB also asserts that the respondents” bases for this second claim against the bank are fundamentally flawed both as to fact and as to law.

8 This judgment will address firstly, the learned judge's decision on the question of whether the second claim constitutes an abuse of the process of the court. Secondly, it will assess the complaint, by NCB, that the respondents” claim lacks a proper factual and legal foundation. It would be helpful, however, to first set out the relevant parts of the claims involved.

The claims

9 The first claim was filed on 10 January 2013. The respondents were the claimants. They commenced the claim by a fixed date claim form, despite the fact that it was a claim asserting breach of contract. This may perhaps be explained by the fact that the main relief they sought was an injunction. The respondents filed an amended fixed date claim form on 7 March 2013 in which Mrs Maxine O'Gilvie and O'Choy O'Gilvie were joined as claimants. In that amended claim, the respondents sought:

• ‘1. A declaration that [NCB] is to give the 2 ^nd and 3 ^rd claimants reasonable notice of at least 9 months before terminating the accounts held by the 2 ^nd and 3 ^rd claimants at the [bank];

• 2. Damages for the breach of the contract for services between the…claimants and the [bank];

• 3. An injunction to restrain [NCB] from terminating the accounts held by the 2 ^nd and 3 ^rd claimants with the [bank] before the expiration of 9 months from the 18 ^th day of December, 2012;

• …

10 Mr O'Gilvie filed the affidavit in support of the fixed date claim. He deposed that he is a friend, from childhood, of Mr Christopher Coke, mentioned above. Mr O'Gilvie asserted that the ARA improperly levelled accusations against him that his businesses and assets were funded by the criminal activity of Mr Coke. Those accusations, he said, resulted in a litany of woes including, the imposition of a restraining order in a civil recovery claim under the Proceeds of Crime Act (‘the POCA’), the cancellation of his visa to the United States of America and that of his wife. It was in that scenario that, Mr O'Gilvie stated, coming ‘[immediately after the civil recovery claim commenced, the [bank] notified [him] that it was no longer interested in proceeding with the use of [one of his premises] as a branch and removed [its] Automatic Banking Machine [from those premises]’.

11 It was in that context also that NCB indicated its intention to close his accounts and those of his companies. The bank remained steadfast in its resolve, despite the fact that it had been informed that the ARA had conceded that it could not prove its allegations against the respondents and had withdrawn the proceedings under the POCA.

12 Mr O'Gilvie, at paragraph 11 of his affidavit, made an assertion, which essentially accepted the bank's right to terminate the accounts. He said:

‘I have been informed by my attorneys-at-law and verily believe that there is nothing in law to stop a bank from terminating its relationship with one of its customers even though this may give rise to a breach of contract because the court may not wish to enforce a contract of services.

Further, my Attorneys-at-law have advised me of the decision of Prosperity Limited v Lloyds Bank Limited [1922–23] TLR 372and the implications of the decision there from [sic].’

The bank now relies heavily on that assertion.

13 He complained in that claim of the hardship that the bank's then intention to close his accounts would wreak on his personal life and on his businesses. He argued that the notice that the bank gave was inadequate and should be extended.

14 The bank contested the first claim. The respondents” application for an interim injunction to prevent the closure of the accounts was filed at the same time as the fixed date claim form. The application was heard on 8 March 2013 and was dismissed. As mentioned above, that first claim still subsists.

15 The second claim was commenced on 7 March 2013, also by a fixed date claim form. This second claim, although naming other defendants, alleged that NCB, in seeking to close their accounts, had discriminated against the respondents, in breach of the Constitution of Jamaica. It also asserted that Prosperity Limited v Lloyds Bank Limited (1923) 39 TLR 372; 3 LDAB 2 87, accepted as good law in the first claim, should no longer be followed in this jurisdiction. The portion of the respondents” prayer in that claim, that is relevant to the bank, stated:

‘AND the claimants claim pursuant to Part 56 of the Civil Procedure Rules:

• 1. A declaration that save where it can be proven that the claimants are in breach of any applicable laws relating to the operation of bank accounts, or are declared guilty by a Court of Law of the Island of criminal activity which is likely to cause reputational risk to [NCB], the [defendants] collectively or individually are to provide the claimants with banking services equivalent to the banking services provided by [NCB] to the claimants at the commencement of this action;

• 2. …

• 3. …

• 4. Against [NCB], damages for breaching the claimants” constitutional rights based on section 25 of the Jamaican Constitution.

• 5. A declaration that the decision in Prosperity Limited v Lloyds Bank Limited is no longer good law to be followed in this jurisdiction;

• 6. A declaration that financial institutions do not have the authority to unilaterally terminate vital banking service relationship with their customers without a valid reason or some form of pre-defined fault on the part of the customer;

…’

16 In paragraph 8 of the fixed date claim form, the respondents set out the...