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

CourtCourt of Appeal (Jamaica)
Judge P. HARRISON, J.A: , PANTON, J.A. , HARRIS. J.A. (Ag.)
Judgment Date18 November 2005
Neutral CitationJM 2005 CA 66
Judgment citation (vLex)[2005] 11 JJC 1802
Date18 November 2005
Dave Garcia and Nigel Jones instructed by Myers Fletcher and Gordon for the appellants.
Leonard Green instructed by Chen, Green and Company for the respondent.

CIVIL PROCEDURE - Summary judgment


This is an appeal against the decision of Mr. Justice Sykes (Ag.) on December 23, 2004, refusing the appellants' application for summary judgment.


On May 13, 2005, we dismissed the appeals of the 2 nd and 3 rd appellants, affirmed the judgment of Sykes, J. (Ag.) and ordered that the matter go to trial. The 1st appellant Gordon Stewart, was dismissed from the claim. We awarded costs to the 1 st appellant to be paid by the respondent here and in the court below to be agreed or taxed and further ordered that the costs of the appeal be the respondent's against the 2 nd and 3 rd appellant to be agreed or taxed.


The relevant facts are that the respondent ("Samuels"), a fisherman and diver was injured, on November 12,1999, when he was in a collision with a ski boat operated by the 2 nd appellant and owned by the 3 rd appellant, while swimming in the sea adjacent to property known as Sandals Montego in the parish of St James. He was hospitalized and treated in the Cornwall Regional Hospital, Montego Bay, St James. He was eventually discharged on January 30, 2001.


Prior to his discharge, he engaged on January 2, 2000, the services of Mr. Leonard Green, attorney-at-law, who on January 4, 2000, wrote to the "Manager Sandals Montego Bay" copied to "Gordon Butch Stewart" the 1 st appellant, advising that:

"We act on behalf of the above captioned Mr. Merrick (Herman) Samuels who instructs us that while swimming in the coastal waters ... a motor craft driven by one of your employees negligently collided with him. ... Happily, we are advised that a member of your hotel staff has made periodic visits to the hospital and has been providing modest financial assistance and seeing to some of our client's medical and other needs...,"


and requested that:

"... you communicate with this writer at ... (the) earliest convenient opportunity so that we may commence negotiations with you regarding an appropriate settlement."


Mr. Green's said letter was probably responded to by Axis (Jamaica) Ltd. International Loss Adjusters and Surveyors, because by his letter dated August 4, 2000, he referred to the latter's letter, saying:

"In response to your letter dated the 21 st day of March, 2000 we wish to state emphatically that we have no intention of supplying you with any proof that we received instructions from Mr. Samuels to act in this matter. Suffice it to say that we do have written authorization to do so."


He advised that the delay in the filing of the suit was due to the non-receipt of the medical report, and continuing complained:

"What is of concern to us is the fact that you seem to be communicating with our client and we wonder to what end.

Please be advised that you were made aware of our involvement in the matter as far back as the 4 th day of January, 2000 and any efforts to attempt negotiations with the client without due regard to his attorney's involvement will negate the validity of any such action."


By letter dated May 11, 2001, to Appliance Traders Ltd. ("attention: Mr. Dimitri Singh"), Mr. Green advised:

"We act on behalf of Mr. Herman Samuels who instructs us to proceed in this matter on his behalf."


and forewarned that Company of the imminent suit.


The writ of summons was filed on May 24, 2001, and the statement of claim on July 11, 2001. On August 8, 2001, Taynia Nethersole, Group Legal Advisor of Sandals Resorts International, wrote to Mr. Green. The letter reads:

"Enclosed, please find Release duly executed by Mr. Samuels, which speaks for itself. The matter is therefore at an end. Additionally, you will note from the penultimate paragraph, that Mr. Samuels states that he has given no instructions to an Attorney-at-Law."


The said release (undated) reads, inter alia:


I, (Herman) Samuels acknowledge all past medical and financial assistance amounting to $103,833.03 (doctor's visit $3,300.00; medication $4,528.41; groceries $2,004.50; hotel food stuff $54,726.12; room rental $28,650.00; other expenses of $10,624.00 provided to me by Bay Roc Ltd., better known to me as Sandals Montego Bay.

I further acknowledge and accept the sum of $380,000.00 (along with a cellular phone) as additional compensation. In consideration of said compensation, I unconditionally release Bay Roc Ltd., trading as Sandals Montego Bay, its associates, its agents and employees, Mr. Gordon 'Butch' Stewart and his associated companies, associates and agents from any and all liability, now and in the future, with respect to this incident.

I am also stating that I have not in the past nor will I give any instructions to any Attorney-at-Law to seek any additional compensation on my behalf.

I sign this document freely and willingly in the presence of witnesses.


Merrick Samuels



The respondent entered judgment in default of defence against the appellants on July 25, 2002, but it was set aside subsequently. The appellants in turn filed a defence and applied for summary judgment against the respondent relying on the release. The application was refused by Sykes, J. resulting in this appeal.


In refusing the appellant's application for summary judgment, Sykes, J found that the respondent:

"... has raised a strong arguable case of undue influence..."


He relied on the affidavit evidence before him and based his finding on the fact that the respondent had a "... low level of education" and in addition, there was:

"... a transaction that appears to be very unfavourable to the victim who alleges that he was befriended by the defendants (appellants) and consequently trusted them ..."


The learned trial judge had considered the case of Swain v Hillman et al [2001] 1 All ER 91, relied on by Mr. Garcia for the appellant, and reasoned that the test "real prospect of success" as contrasted with "fanciful prospect" was not helpfully defined by the judges therein. He reasoned further that because Judge L.J. seemed to equate "real prospect" of success with "improbable prospect" he then advanced the premise that:

"If the adjective 'real' in this context, means something less than improbable then it cannot take much to satisfy a court that there is a real prospect of success."


That reasoning led the learned trial judge to conclude that:

"If Swain is correctly decided then it does suggest that the criterion for establishing that a case has a real prospect of success is perhaps not far above that required for an injunction namely, a serious triable issue."


He maintained consequently, that "the threshold to satisfy the test of 'real prospect of success' is very, very low."


Summary judgment may be obtained by a party in circumstances where there is no valid defence to the claim or on the other hand, no substance to the claim. Rule 15.2 of the Civil Procedure Rules, 2002, reads:

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

  • (a) the claimant has no real prospect of succeeding on the claim or the issue; or

  • (b) the defendant has no real prospect of successfully defending the claim or the issue." (Emphasis added)


The prime test being "no real prospect of success" requires that the learned trial judge do an assessment of the party's case to determine its probable ultimate success or failure. Hence, it must be a "real prospect" not a "fanciful" one - Swain v Hillman (supra). The judge's focus is therefore in effect directed to the ultimate result of the action as distinct from the initial contention of each party. "Real prospect of success" is a straightforward term that needs no refinement of meaning. The latter term should not therefore be equated to the "good and arguable" case concept as required to obtain the issue of an injunction. The "good and arguable case" or "a serious question to be tried" test, in the case of the grant of the injunction, is directed to a preliminary assessment of the party's contention in contrast to an ultimate result.


Sykes, J by adopting the test of "good and arguable case" fell into error by rationalizing the test of "real prospect of success" as requiring a "low threshold" of proof. The contrary is true. I agree with Mr. Garcia, for the appellants that the "mere arguability test" adopted by the learned trial judge was the incorrect approach.


The appellants' application for summary judgment was based on


the release signed by the respondent. They argued that the release was


a complete defence to the respondent's claim. A release can operate


as accord and satisfaction. Scrutton, LJ, in British Russian Gazette and Trade Outlook Trade v Associated Newspaper, Ltd [1933] 2 KB 616, at page 643, said:

"Accord and satisfaction is the purchase of a release from an obligation whether arising under

contract or tort. ... The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative."


The respondent, in response, maintained that there was no valid release due to the fact that undue influence was exercised by the appellants in their dealings with the respondent.


Undue influence is the basis on which a court of equity may set aside a transaction where one party has so...

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