Stewart (Gordon), Andrew Reid, Bay Roc Ltd v Merrick (Herman) Samuels

• Jurisdiction: Jamaica
• Judge: Sykes J (Ag)
• Judgment Date: 23 December 2004
• Judgment citation (vLex): [2004] 12 JJC 2301
• Court: Supreme Court (Jamaica)
• Date: 23 December 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO 2001/S-081

BETWEEN

MERRICK (HERMAN) SAMUELS

CLAIMANT

AND

GORDON STEWART

FIRST DEFENDANT

AND

ANDREW K. REID

SECOND DEFENDANT

AND

BAY ROC LIMITED

THIRD DEFENDANT

IN CHAMBERS

Mr. Leonard S. Green instructed by Chen, Green and Company for the claimant

Mr. Dave Garcia and Mr. Nigel Jones instructed by Myers, Fletcher and Gordon for all the defendants

CIVIL PROCEDURE - Summary judgment - Application - Whether defendants are entitled to summary judgment - Whether claimant was a victim of undue influence

Sykes J (Ag)

1 APPLICATION FOR SUMMARY JUDGMENT

2 1. The claimant was severely injured by a motor boat on November 13, 2000 while he was swimming in waters near a hotel known as Sandals Montego Bay. He filed suit against all three defendants seeking compensation for his injuries. The first defendant is alleged to be the owner of Sandals Montego Bay. The second defendant is alleged to be an employee of the hotel and the third defendant is alleged to be the operator of the hotel. It is not necessary for me to state any more of the facts having regard to my decision. I shall confine by analysis to the sole issue that has been raised during the hearing of this application which is whether the defendants are entitled to summary judgment under rule 15.2(1)(a) of the Civil Procedure Rules 2002.

3 2. The defendants say that the claimant has " no real prospect of succeeding " because he signed a release sometime in August 2001. Mr. Garcia submitted that the terms of the release and the money paid under it meet the legal definition of accord and satisfaction as defined in British Russian Gazette and Trade Outlook, Limited v Associated Newspapers, Limited [1933] 2 K.B. 616 by Scrutton L.J. at pages 643 – 644. In that case, the Lord Justice said that accord and satisfaction is the purchase of a release from an obligation whether arising in contract or tort by means of valuable consideration. The accord is the agreement and the satisfaction is the consideration that gives life to the agreement.

4 3. The claimant challenges this conclusion. He says that his agreement was procured by undue influence.

5 The affidavit evidence

6 4. Mr. Horace Peterkin, who identified himself as the General Manager of Sandals Montego Bay, a hotel managed by the third defendant, swore an affidavit dated January 2, 2003, in which he gives an extremely terse account of the circumstances that led to the signing of the release. He apparently is speaking for all three defendants. He says that he discussed the matter of compensation with the claimant. During the discussions he alleges that Mr. Samuels said he had no lawyer. Mr. Peterkin added that he was informed by a Mr. Dimitri Singh who is described as the legal officer of Bay Roc Limited, the third defendant, that Mr. Leonard Green, attorney at law, "claimed" to represent the claimant.

7 5. Let us now look at some of the incontrovertible facts concerning what has almost been dismissively described as this "claim" by Mr. Green to represent the claimant.

• i. the writ of summons was filed on May 24, 2001, three months before the release was signed. The writ was signed by Mr. Vincent Chen, a partner in the firm of Chen, Green and Company;

• ii. the writ states that it was issued by Chen, Green and Company. The address of the attorneys is stated on the writ;

• iii. the statement of claim was filed on July 11, 2001, a month before the date the release was signed. The statement of claim was filed by Chen, Green and Company;

• iv. an appearance was entered on May 10, 2002 by the three defendants;

• v. the claimant obtained interlocutory judgment in default of defence against all three defendants in July 2002. This was ten months after the release;

• vi. the defendants applied to have the judgment set aside on the basis of the release signed in August 2001;

• vii. Mr. Green in a letter dated January 4, 2000 addressed to the manager of Sandals Montego Bay, copied to Mr. Gordon Stewart, the first defendant, stated that he acted on behalf of Mr. Samuels. The letter invited the manager to contact Mr. Green in order to commence negotiations for an appropriate settlement. This was twenty months before the release was signed by Mr. Samuels. There is no evidence that the manager of Sandals Montego Bay or Mr. Gordon Stewart had not received this letter. It is fair to point out that there is no evidence that they did receive the letters but during the hearing of this matter no issue was taken by the defendants about this;

• viii. Mr. Green wrote a letter dated August 4, 2000 to Axis (Jamaica) Limited. Axis is the insurer of the third defendant. This was a year before the release. In that letter Mr. Green referred to a letter from Axis to him dated March 21, 2000. Mr. Green made it clear that he had written authorisation from Mr. Samuels to act on his behalf. The letter from Mr. Green also stated that the only matter delaying the filing of suit was a detailed medical report from Dr. Francis Lindo on the injuries suffered by Mr. Samuels. The letter closes with a reminder to Axis that they were made aware of Mr. Green's involvement in the matter from at least January 4, 2000. This means that Mr. Green sent communication to at least three persons on this matter — one to the manager of Sandals Montego Bay, another to the first defendant Mr. Gordon Stewart and a third to the insurers of the third defendant;

• ix. Mr. Green raised, in the August 4, 2000 letter to Axis, concerns about the propriety of Axis seeking to communicate directly with Mr. Samuels without any regard to his (Mr. Samuels') attorney's involvement;

• x. Ms Taynia Nethersole, who described herself as the Group Legal Advisor, signed a letter dated August 8, 2001. This letter was addressed to Mr. Green and it enclosed the release signed by Mr. Samuels.

8 6. Given these uncontroverted facts, it is difficult to see how Mr. Dimitri Singh could have informed Mr. Peterkin that Mr. Green merely...