Wayne Robinson v Basil Jarrett

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop, P.,D Fraser, J.A.,G Fraser, J.A. (Ag.)
• Judgment Date: 04 April 2025
• Neutral Citation: JM 2025 CA 25
• Court: Court of Appeal (Jamaica)
• Year: 2025
• Docket Number: Suit No.: COA2024CV00037

Wayne Robinson

and

Basil Jarrett

McDonald-Bishop, P.; D Fraser, J.A.; G Fraser, J.A. (Ag)

Suit No.: COA2024CV00037

Court of Appeal

Appearances:

B St Michael Hylton KC and Miss Timera Mason instructed by Hylton Powell for the appellant.

Walter Scott KC, Weiden Daley and Miss Shaydia Sirjue instructed by Hart, Muirhead & Fatta for the respondent.

JUDGMENT OF THE COURT

McDonald-Bishop, P.

1 I have read, in draft, the reasons for judgment of G Fraser, J.A. (Ag). I agree with her reasoning and conclusion and have nothing to add.

D Fraser, J.A.

2 I, too, have read, in draft, the reasons for judgment of G Fraser, J.A. (Ag) and agree with her reasoning and conclusion.

G Fraser, J.A. (Ag.)

3 Mr. Wayne Robinson (‘the appellant’) filed his notice and grounds of appeal on 15 March 2024, appealing against orders made on 8 March 2024 by O Smith, J. (Ag) (‘the learned judge’) striking out his claim on the application of Mr. Basil Jarrett (‘the respondent’). The appellant has urged this court to set aside the orders made by the learned judge, in part, that:

• “1. The Fixed Date Claim Form filed May 4, 2022, is struck out.

• 2. Costs of the application and the claim to be taxed, if not agreed.

• 3. …”

4 After hearing the parties, on 27 March 2025, we made the following order:

• “1. The appeal is allowed.

• 2. The orders made on March 8, 2024, by O Smith, J. (Ag) are set aside.

• 3. The application to strike out the claim filed on June 2, 2023, is refused.

• 4. The claim is to proceed to hearing before a judge of the Supreme Court, other than O Smith, J. (Ag) on a date to be fixed by the Registrar after consultation with the parties.

• 5. Costs of the appeal and in the court below to the Appellant, to be taxed if not agreed.”

5 We promised then to provide our reasons for our decision. This is in fulfilment of that promise.

6 For present purposes, it is unnecessary to fully rehearse the factual background leading to this appeal. It suffices to provide a short chronicle of the litigation between the parties as a necessary context to the appeal. The claim was, in essence, a demand for an accounting by the respondent relative to uniforms and other merchandise purchased and received from Joseph Sports Inc. in the United States of America.

7 The appellant alleged in his claim that in 2018, by way of an oral agreement with Joseph Sports Inc., he contracted to purchase uniforms and other items for retail to the students at Jamaica College. Pursuant to this agreement, in 2020, the appellant appointed the respondent, “in his capacity as President of the Jamaica College Old Boys' Association (“JCOBA”), as his agent to handle the sale of the Merchandise, and the [respondent] accepted the appointment”. The appellant's contention is that the respondent, as his agent in the venture, failed to account for proceeds from the sale of the uniforms.

8 The respondent, upon being served the claim, filed his application for it to be struck out on the ground that the appellant did not have standing or locus standi to bring the claim against the respondent and the respondent was not the proper party to be sued and further the appellant's statement of case disclosed no reasonable grounds for bringing the claim.

9 On hearing the respondent's application, the learned judge struck out the claim. No written reasons for the learned judge's decision were provided to this court, but there seemed to be a tacit consensus between the parties that the claim was struck out because no reasonable grounds were disclosed for bringing it, stemming from a lack of legal standing (locus standi) on the part of the appellant. The parties agreed that on the issue regarding locus standi, the learned judge opined that the appellant lacked locus standi, primarily on the following bases: (a) the Education Act and Regulations do not give a school principal the power to commence a claim on behalf of the public educational institution and he/she cannot do so in his/her personal capacity on behalf of the school; (b) the Education Act and Regulations do not authorise the principal of a public educational institution to appoint an agent; and (c) the board of management of public educational institutions is responsible for the management of the school and its affairs.

10 The appellant, on being granted leave to appeal by the learned judge, consequently filed seven grounds of appeal, complaining that the learned judge erred in granting the respondent's application to strike out his claim, and further erred by her determination that the fixed-date claim form (‘FDCF’) did not disclose reasonable grounds for bringing the claim. The grounds of appeal are as follows:

The appellant sought from this court the following:

• “a. The learned judge failed to appreciate that she was hearing an application to strike out the claim and not a trial or even a summary judgment application.

• b. The learned judge erred in law by finding that the Appellant did not have standing to bring the claim.

• c. The learned judge erred in law by finding that the principal of a public educational institution does not have the authority to appoint an agent to act on his/her behalf.

• d. The learned judge erred in law when she failed to find that the issue of whether the relationship of agency existed between the Appellant and the Respondent is a matter to be determined at trial.

• e. The learned judge erred in law when she failed to recognise that a Board of Management is not a legal entity capable of suing or being sued.

• f. In particular, the learned judge failed to recognise that:

  • (i) an individual member of a board of management can file a claim; and

  • (ii) therefore, in circumstances where the Appellant was the member of the Board of Management of Jamaica College who entered into the agreement with Joseph Sports Inc. for the sale and supply of uniforms and appointed the Respondent as his agent for that purpose, the Appellant is in any event, a proper party to file the claim.

• g. The learned judge erred in law by finding that the Fixed Date Claim Form filed May 4, 2022, does not have reasonable grounds for bringing the claim.”

• “(a) The orders made on March 8, 2024 and set out at paragraph [3] above be set aside.

• (b) The application to strike out the claim filed on June 2, 2023, be dismissed.

• (c) Costs of the appeal and in the court below be awarded to the Appellant, to be taxed if not agreed.”

11 The appellant also sought an order from this court that the application made by the respondent in the court below to strike out the claim be dismissed.

12 Each party filed written submissions in support of their respective positions, and I wish to thank counsel appearing for the parties for their very fulsome and extensive submissions, which I found to be quite helpful. Without doing any injustice to the industry of counsel, I will endeavour to capture the essence of the submissions that were imperative to the disposition of the identified issues in the appeal.

13 King's Counsel, Mr. B St Michael Hylton (‘Mr. Hylton’), for the appellant, advanced, in both written and oral submissions, that the claim brought by the appellant sought proper accounting from the respondent as the appellant's agent, as it concerned arrangements made between them. The claim, therefore, concerned the alleged agency relationship between the parties. King's Counsel stated that the respondent did not deny receiving the merchandise, nor did he say he returned it. Instead, it was the respondent's case that the appellant lacked the authority to demand that he account for the money. In the circumstances, the appellant submitted that the test the learned judge should have applied was whether the respondent's failure to give an account gave the appellant reasonable grounds to bring the claim. King's Counsel contended that the learned judge, however, erred when she “ventured into an examination of the evidence to determine whether there was a real prospect of success on this issue”. Accordingly, King's Counsel submitted that the improper test was utilised by the learned judge, in that the test was not whether the appellant had a real prospect of proving the issue successfully at trial, but rather, whether the pleadings before the court disclosed reasonable grounds for the appellant to file the claim.

14 Mr. Hylton submitted that although the learned judge had the power, pursuant to rule 26.3 of the Civil Procedure Rules, 2002 (‘CPR’), to strike out a claim, it is not a power that should be exercised lightly. King's Counsel conceded that since what was before the learned judge was a FDCF, the affidavit evidence would be included as part of the pleadings, and it was, therefore, appropriate for the learned judge to look at it. However, on a striking out application, the learned judge's examination should not extend to a weighing of the evidence to determine factual issues. The learned judge's examination of the affidavit evidence was to have been confined to addressing her mind to determine whether or not the pleadings before the court disclosed a reasonable ground(s) for bringing the claim. King's Counsel relied on the authorities of S & T Distributors Limited and another v. CIBC Jamaica Limited and another (unreported), Court of Appeal, Jamaica, Supreme Court Civil Appeal No 112/2004, judgment delivered 31 July 2007 (‘ S & T Distributors Limited’), City Properties Limited v. New Era Finance Limited [2013] J.M.S.C. Civ. 23 and Delroy Foster v. Jamaican Redevelopment Foundation Inc. [2024] J.M.C.A. App. 5, in support of these submissions.

15 Mr. Hylton also argued that the learned judge failed to recognise that she had before her an application to strike out the claim, which did not require her to adjudicate on the evidence or indulge in a mini-trial. That even on a summary judgment application, where the prospect of success was in issue, this too did not...