Symsure Ltd v Kevin Moore

• Jurisdiction: Jamaica
• Judge: Morrison P,Phillips JA,McDonald Bishop JA
• Judgment Date: 09 February 2016
• Neutral Citation: JM 2016 CA 14
• Docket Number: SUPREME COURT CIVIL APPEAL NO 85/2014
• Court: Court of Appeal (Jamaica)
• Date: 09 February 2016

Between

Symsure Limited

Appellant

and

Kevin Moore

Respondent

[2016] JMCA Civ 8

Before:

The Hon Mr Justice Morrison P

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McDonald-Bishop JA

SUPREME COURT CIVIL APPEAL NO 85/2014

JAMAICA

SUPREME COURT CIVIL APPEAL NO 85/2014

Written submissions filed by Nunes Scholefield DeLeon & Co for the appellant

Written submissions filed by DunnCox for the respondent

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)

Morrison P

1 I have read in draft the judgment of my sister Phillips JA and agree with her reasoning and conclusion. I have nothing useful to add.

Phillips JA

2 This is an appeal filed on 18 October 2013, against the decision of Morrison J, dated 11 October 2013, in which he refused the appellant's application for security for costs against the respondent. Having reviewed the submissions of counsel for the appellant and the respondent, it is our view that the appeal should be dismissed. The reasons for our decision are set out below.

Background

3 Symsure Limited (the appellant and the defendant in the claim in the court below) is a company incorporated in Trinidad and Tobago and registered in Jamaica as an overseas branch. Kevin Moore (the respondent) is a computer programmer/product architect who was employed by the appellant from 26 March 2007 to 27 October 2008.

4 The respondent filed a claim form on 16 December 2008, and on 28 September 2012 filed an amended particulars of claim whereby he claimed against the appellant damages for wrongful dismissal or in the alternative damages for breach of contract and specific performance of the employment contract to give him (the respondent) 80,000 shares in the appellant company.

The respondent's claim

5 The respondent claimed that he had been recruited by the appellant in February to March 2007 to develop a software programme. He was employed as a consultant for three months by a contractual agreement dated and commenced on 26 March 2007. That contractual agreement concluded on 26 June 2007. The respondent alleged that upon the expiration of the three month contract, on or about 27 June 2007, the parties brought into force the terms of the three year contract.

6 The relevant terms of the three year contractual agreement provided for the following:

‘ Duration : The term of your employment shall be three (3) years.

Compensation Package : US $130,000.00 per year for the first year. Salary increases of 10% per year for the next two years.

Equity : 60,000 shares [in the Defendant] on acceptance of the offer and a further 20,000 shares for each year of the agreement.

…

Termination of Agreement : Without cause, the Company may terminate this agreement at any time upon 60 days' written notice to the Employee. If the Company requests, the Employee will continue to perform his/her duties and shall be paid his/her regular salary up to the date of termination. In addition, the Company will pay the Employee on the date of the termination a severance allowance of US$25,000.00 per year less taxes. The Employee may terminate employment upon 60 days' written notice to the Company. Employee may be required to perform his/her duties and will be paid the regular salary to date of termination but shall not receive severance allowance.’

7 The respondent stated that on or about 27 June 2008, the appellant failed to pay the 10% salary increase at the end of his first year of employment. Further the appellant failed to issue to him his equity of 80,000 shares in the company.

8 The respondent claimed that by a letter dated 27 October 2008, the appellant gave him 24 hours within which to accept another offer with reduced benefits and sought to disregard the three year contract. When he failed to accept the new offer within the stipulated time period, the appellant immediately and without cause or the requisite notice or payment in lieu of notice and severance pay, wrongly terminated his employment in breach of his contract.

The appellant's defence

9 The appellant in its defence stated that the three month contract dated 26 March 2007 was the only contractual agreement which existed between the parties, as the three year contract which was being negotiated by the parties had never been finalized or agreed. Further the three month contract had been extended by the conduct of the parties up to the time of the termination of the respondent's employment. The appellant claimed that after 26 June 2007, the respondent continued to receive remuneration in accordance with the provision of the three month contract.

The appellant claimed that the three month contract provided for the remuneration of the respondent in the sum of a base monthly payment of US $10,833.33, in addition to travel reimbursements of US$2,100.00 per month. The appellant also claimed that from 26 March 2007 to the date of his termination, the respondent was provided with the usual benefits given to overseas consultants in the industry, namely health insurance, credit cards, reimbursement of expenses, a fully maintained company car, travel expenses and accommodation expenses when he was in Jamaica.

10 The appellant further alleged that the respondent's employment was lawfully terminated in accordance with the provisions of the three month contract and in accordance with the provisions of the Employment (Termination and Redundancy Payments) Act. It was the appellant's contention that prior to the termination of the respondent's three month contract the respondent had been offered the permanent position of Chief Software Architect, which he failed to accept in the stipulated time period.

The application for security for costs

11 On 22 July 2013, the appellant filed in the court below, a notice of application for security for costs against the respondent in the sum of JA$3,000,000.00, to be paid into an interest bearing escrow account on or before 4 October 2013. The appellant also sought an order that the respondent's claim be stayed until the security for costs was provided and that in the event that the sum of $3,000,000.00 was not paid, then the claim should stand struck out.

12 That application was brought on the grounds that:

• ‘1. Pursuant to Rule 24.2(1) of the Civil Procedure Rules which provides that ‘A defendant in any proceedings may apply for an order requiring the Claimant to give security for the defendant's cost[s] of the proceedings. ‘[sic]

• 2. Pursuant to Rule 24.3 of the Civil Procedure Rules, it is just to make the order and the Claimant [the respondent] is ordinarily resident outside of the jurisdiction.

• 3. The Claimant incorrectly stated his address as 15 Norbrook Drive, Kingston 8 and this was done with a view to evading the consequences of litigation.

• 4. Pursuant to Rule 24.2(4) of the Civil Procedure Rules which provides that ‘where the court makes an order for security for costs, it will determine the amount of the security; and direct the manner in which and the date by which the security is to be given.

• 5. Pursuant to Rule 24.4 of the Civil Procedure Rules which provides that ‘on making an order for security for costs the court must also order that — a) the claim or counterclaim be stayed until such time as security for costs is provided in accordance with the terms of the order; and/or that if security is not provided in accordance with the terms of the order by a specified date, the claim be struck out’.

• 6. Pursuant to Rule 20.4(1) and 20.4(2) of the Civil Procedure Rules which provides that an application for permission to amend may be made at the case management conference. Rule 20.4(2) provides that statements of case may only be amended after a case management conference with the permission of the Court.’

13 The notice of application was supported by an affidavit sworn to on 22 July 2013 by Marlon Cooper, a director of the appellant company. Aspects of facts to which he deposed are stated below:

‘3. The facts and matters to which I depose in this affidavit are either within my own knowledge and are true, or are based upon the Defendant's (the appellant's) documentation relevant to this matter or on information which has been supplied to me, in which case the source of that documentation or information is stated and those matters are true to the best of my knowledge, information and belief.

4. That the Claimant, Kevin Moore is ordinarily resident outside of Jamaica. The Claimant prior to being engaged to work at Symsure Limited on a contract basis was ordinarily resident in the United States of America with his wife and children. The address he provided to Symsure Limited at the time of his engagement as a consultant was Florida, 812 Hawthorn Terrace, Weston FL 33327 in the United States of America. That while working at Symsure Limited the Claimant travelled to the United States very regularly in order to spend time with his wife and children who continued to reside in the United States of America.

5. That I am informed and do verily believe that after the termination of his contract with Symsure Limited he returned to the United States of America to live and continues to work there.

6. That I conducted a search of the Claimant's name on the professional networking website Linkedin. I identified the Claimant's profile based on his photograph and employment history. I ascertained from his profile that he is presently working at NubeSystems [sic] LLC a company located in Miami/ Fortlauderdale [sic] area in the United States of America. That I exhibit hereto marked with the letters ‘ MC1 ’ a copy of the Claimant's profile on linked in.

7. That in the Claim Form filed herein the Claimant incorrectly stated his address as 15 Norbrook Drive, Kingston 8 and I verily believe that this was done with a view to evading the...