William Clarke v Bank of Nova Scotia Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Harris JA
• Judgment Date: 30 January 2014
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 16/2012
• Date: 30 January 2014

[2014] JMCA Civ 5

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

SUPREME COURT CIVIL APPEAL NO 16/2012

Between

William Clarke

Appellant

and

The Bank of Nova Scotia Jamaica Limited

Respondent

TRUSTS - Striking out - Order for payment of monies held in trust - Breach of contract - Application to srike out case - Civil Procedure Rules 2002, Rule 9.6

Harris JA

1 The appellant was a former president and chief executive officer of the respondent. During the currency of the appellant's employment with the respondent, a seven series BMW was purchased by the respondent for the appellant for the sum of £260,008.06. The appellant was in fact entitled to a five series BMW and not a seven series BMW. However, an agreement was brokered by the parties in which: theappellant was accorded an option to purchase the seven series motor vehicle in exchange for the five series; and he should deposit the difference of the costs of a five series and a seven series vehicle into an account with the respondent and on the exercise of the option, after four years, the amount deposited by the appellant would be deducted from the purchase price of the seven series vehicle. Pursuant to the agreement, the appellant opened an account at one of the branches of the respondent's banks and made payments into the account. The appellant claimed that he made payments amounting to £41,181.06.

2 The appellant's employment with the respondent ended in 2007 when he retired prematurely. He discontinued making payments into the account in December 2007. On 6 October 2011, the appellant's attorney-at-law wrote to the respondent demanding the return of a balance of £41,181.06 standing in the account. The respondent having not acceded to the demand, on 19 October 2011, the appellant brought a claim against the respondent, seeking an order: for the payment of the sum held by the respondent in trust for him; or alternatively, damages for breach of contract and interest.

3 On 17 November 2011, the respondent filed a notice of application, seeking a declaratory order that the court was without jurisdiction to hear the claim and that the claim form and particulars of claim be struck out or alternatively, that the proceedings be stayed.

4 The grounds on which the application was made were in the following terms:

• ‘1. Rule 9.6(l)(a) of the Civil Procedure Rules 2002 (“the CPR”) provides that a defendant who disputes the court's jurisdiction to try the claim may apply to the court for a declaration to that effect;

• 2. Rule 9.6(6) of the CPR provides that any order under this rule may also strike out the particulars of claim or stay the proceedings;

• 3. The claim has been settled pursuant to a Settlement Agreement entered into between the Claimant and the Defendant on June 7, 2011; and

• 4. The Settlement Agreement stipulates that all disputes arising out of the agreement must be referred to the named Arbitrator.’

5 The application was supported by an affidavit of Mrs Shaun Lawson-Laing, the legal counsel for the respondent, in which she stated that on 7 June 2011, a Settlement Agreement between the parties was concluded in which it was a term of the agreement that disputed matters emanating from that agreement should be determined by the named arbitrator, Mr Graeme Mew, of the London Court of International Arbitration (“LCIA”). She averred, among other things, that the question as to the motor car was determined under the Settlement Agreement. She exhibited: a copy of the Minutes of Settlement; a copy of a part of the Settlement Agreement and a copy of a Release and Indemnity executed by the appellant. In a further affidavit filed on 25 November 2011, she exhibited extracts from the statement of case, filed by the appellant for arbitration purposes, in relation to the motor vehicle.

6 In an affidavit by the appellant, sworn on 3 January 2012, he stated that his claim arises out of a breach of a banker and customer contract, and not out of a contract made on 26 March 2010, relating to a dispute between the parties on the question as to what would be a fair and equitable retirement plan for him. He further averred that all facts and issues were covered by the agreement of March 2010. In a further affidavit sworn on 20 March 2012, he stated that there was no agreement to arbitrate and that it is untrue that Mr Mew was a named arbitrator. The sole matter in dispute, he asserted, was the claim for the money with the respondent.

7 The contract of 26 March 2010, to which the appellant has alluded, was in the form of an arbitration request in which the parties agreed to submit to arbitration before the LCIA. The arbitral process produced a Settlement Agreement. This Settlement Agreement was executed by both parties. That portion of the agreement which was before the court made provision: for the execution of a Release and Indemnity by the appellant in favour of the respondent; that the terms of the settlement should remain confidential; and that any dispute arising with respect to the implementation or interpretation of the agreement be referred to Mr Mew for determination. The full minutes of the settlement were produced. They read:

‘It is hereby agreed between William Clarke (“the Claimant”) and the Bank of Nova Scotia Jamaica, Limited (the “Respondent”), that the matters in dispute, relating directly or indirectly to the Request for Arbitration filed on or about July 21, 2010 and Statement of Case filed on or about March 15, 2011 by the Claimant with the London Court of International Arbitration (“the LCIA”) (the “Arbitration”), and all matters relating directly or indirectly to the Supreme Court of Judicature of Jamaica. Claim No. 2008 HCV 6042, and all matters relating directly orindirectly to the Jamaican Court of Appeal Civil Division Appeal No. 38 of 2009, and all matters relating directly or indirectly to the Application for Court Orders initiated in the Supreme Court of Judicature of Jamaica (Civil Division) Claim No. 2009 HCV 05137, and all matters relating directly or indirectly to the claim commenced in the Supreme Court of Judicature of Jamaica (Civil Division) Claim No. 2010 HCV 00336 (Claim No. 2009 HCV 05137 and Claim No. 2010 HCV 00336 collectively referred to herein as the ‘Facebook Claim’) are settled on the following basis:’

8 The statement of case, to which reference has been made in the Minutes of Settlement, was filed by the appellant in support of his request for arbitration. The allegations contained in the statement of case, relating to the motor vehicle, are as follows:

‘3v. The Claimant was provided with a 2007 BMW 750 motor car (0894 EX) by the Respondent. This was also based on his position and service to the Respondent. The Claimant also contributed directly to the purchase price for this car and would have continued to do so but for his early retirement from the Respondent. It was agreed that the Claimant would have the right to purchase this motor car at the market value less the amount of his contribution.’

He claimed the following:

‘6.4 (ii) Transfer ownership of the 2007 BMW 750 motor vehicle (0894 EX) that was assigned to the Claimant, to the Claimant free of all encumbrances, without the Claimant being required to make any payments in respect thereof. This was already agreed at a meeting of the Board of the Respondent on October 6, 2008. A copy of the minutes of October 6, 2008 will be relied on by the Claimant . The Claimant was required to contribute J$3,524,275.11 with respect to the purchase price of the motor vehicle with an agreement that he would be able to purchase the vehicle at the end of four years. The Claimant will rely on a copy of the relevant Bank statement at the trial . The fact that the Claimant was requested by the Board to retire prematurely in no way negates the agreement. It is for this reason that the Board resolved on October 6, 2008 that the vehicle should be transferred to the Claimant at no cost to him.’

9 Following the execution of the Settlement Agreement, the appellant also signed a form of Release and Indemnity. It states as follows:

‘IN CONSIDERATION of the terms set out in the Minutes of Settlement dated June 7 ^th 2011, the sufficiency of which is hereby acknowledged, William Clarke (hereinafter referred to as the “Releasor”) and his heirs, executors, predecessors, successors, assigns and agents do hereby remise, release and forever discharge The Bank of Nova Scotia, its heirs, executors, predecessors, successors, affiliates, subsidiaries (including but not limited to The Bank of Nova Scotia Jamaica Limited), officers, directors, employees, servants, agents and assigns (collectively, the “Bank”) of and from all manner of actions, causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, claims and demands whatsoever which against the Bank the Releasor ever had, now has or hereafter can, shall or may have by reason of any matter, cause or thing whatsoever existing to the date hereof, known or unknown, including, without limitation, all matters relating directly or indirectly to the Request for Arbitration filed on or about July 21, 2010 and Statement of Case filed on or about March 15, 2011 by the Releasor with the London Court of International Arbitration, and all matters relating directly or indirectly to the Supreme Court of Judicature of Jamaica Claim No. 2008 HCV 6042, and all matters relating directly or indirectly to the Jamaican Court of Appeal Civil Division Appeal No. 38 of 2009, and all matters relating directly or indirectly to the Application for Court Orders initiated in the Supreme Court of Judicature of Jamaica (Civil Division) Claim No. 2009 HCV 05137, and all matters relating directly or indirectly to the claim commenced in the Supreme Court of Judicature of Jamaica (Civil Division)...