William Clarke v The Bank of Nova Scotia Jamaica Ltd

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brooks JA
• Judgment Date: 13 March 2012
• Neutral Citation: JM 2012 CA 26
• Docket Number: SUPREME COURT CIVIL APPEAL NO 16/2012
• Date: 13 March 2012

[2012] JMCA Civ 8

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 16/2012

Between

William Clarke

Appellant

and

The Bank of Nova Scotia Jamaica Limited

Respondent

Written submissions filed by Henlin Gibson Henlin for the appellant

Written submissions filed by Michael Hylton & Associates for the respondent

CIVIL PROCEDURE - Settlement agreement - Whether learned trial judge correctly ruled that matter fell within ambit of agreement - Whether matter was procedural appeal - Whether court has jurisdiction to hear matter - Whether matter was settled under settlement agreement - Whether matter falls under banker/customer relationship or part of ssettlement agreement - Court of Appeal Rules 2002, R. 24, 2.4(3).

PROCEDURAL APPEAL

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

IN CHAMBERS

Brooks JA

1 The appellant Mr William Clarke and his former employer, The Bank of Nova Scotia Jamaica Limited (the bank), have so hardened their respective positions in respect of their acrimonious battles since their parting, that in the proceedings, from which this appeal emanates, they both refused to provide information requested of them by the Supreme Court. Faced with that lack of co-operation, the learned judge at first instance, made a ruling based on the information, which was before her. Mr Clarke now appeals on the basis that she erred in striking out his claim against the bank.

2 The issue raised by the appeal, is whether the learned judge correctly ruled that Mr Clarke's claim properly fell within the ambit of a settlement agreement that he made with the bank, on 7 June 2011. In that document, the parties had agreed that all matters relating directly or indirectly to certain previous proceedings between them had been settled on specific terms. One of those terms was that, in the event of any dispute concerning the interpretation or implementation of the agreement, that dispute would be “resolved by Graeme Mew…whose decisions shall be final and binding”.

3 In order to determine whether the learned judge was correct, it is necessary to outline the background to the claim. Before doing so, however, it should be noted that there was a dispute as to whether this is a procedural appeal. The procedural aspect will be addressed first.

Procedural issue

4 Mr Clarke's appeal was filed as a procedural appeal pursuant to rule 2.4 of the Court of Appeal Rules 2002 (“the CAR”). Rule 2.4 (3) stipulates that the general rule is that such appeals are to be considered on paper by a single judge of this court. The bank's attorneys-at-law contended that this is not a procedural appeal because the striking out of Mr Clarke's claim “directly decided” the substantive issues between the parties. They submitted that this was a matter which should be dealt with by a panel of this court.

5 The term “directly decided” as used by the bank's attorneys-at-law is a reference to the relevant provision in rule 1.1 of the CAR. The rule defines “procedural appeal” to mean:

“…an appeal from a decision of the court below which does not directly decide the substantive issues in a claim…”

6 I cannot agree with the bank's stance. Its objection to Mr Clarke's claim, in the court below, was that that was not the proper forum for the substantive issues to be decided. The learned judge agreed and, accordingly, struck out the claim. The bank cannot properly, now say that the judge had decided the substantive issues. I, therefore, find that this is a procedural appeal. It is properly before me, as the learned judge granted permission to appeal and the notice of appeal was lodged within the allotted time.

7 Although it was not a point of dispute before him, Panton JA (as he then was) specifically considered an appeal from an order for a stay of proceedings, in circumstances similar to the instant case, to be a procedural appeal. This was in House of Blues Ltd and Another v Secret Paradise Resort Ltd SCCA No 43/2005 (delivered 21 September 2005). I draw support from that decision. I now turn to the background to the claim.

The Background

8 The relevant background to Mr Clarke's claim was that, in or about the year 2006, he had agreed with the bank that he would pay monies, totalling a certain sum, into an account, over the course of four years. This would entitle him to purchase a certain motor car, from the bank, at the end of that period. The vehicle had been assigned to him, for his use, while he was employed to the bank. He paid a total of £41,181.06 into the account pursuant to the agreement but before the period had expired and before the full sum had been paid, his employment came to a less than amicable, end. Mr Clarke, thereafter, became engaged in acrimonious litigation with the bank. In attempting to resolve their differences, the parties referred a number of issues for arbitration, through the London Court of International Arbitration (LCIA).

9 On or about 15 March 2011, as a part of the arbitral process, Mr Clarke filed a statement of case. In it, he addressed the agreement concerning the motor car. For completeness the relevant portion of the statement of case is set out:

“v. The Claimant [Mr Clarke] was provided with a 2007 BMW 750 motor car (0894 EX) by the Respondent [bank]. 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.”

10 The summary to the statement of case included a claim for the transfer of the said vehicle, “free of all encumbrances, without the Claimant being required to make any payments in respect thereof”. That summary referred to an agreement at a meeting of the bank's board of directors on 6 October 2008, deciding the transfer of the vehicle on those terms. It continued, in part:

“(ii) …The Claimant was required to contribute $3,524,275.11 with respect to the purchase price of this motor vehicle with an agreement that he would be able to purchase the vehicle at the end of four years….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.”

11 The arbitration was amicably settled and Mr Clarke signed both a settlement agreement and a form of release and indemnity. The Minutes of Settlement stated that the parties had agreed “that the matters in dispute, relating directly or indirectly to the Request for Arbitration…and Statement of case filed on or about March 15, 2011 by the Claimant with the [LCIA] and all matters relating directly or indirectly to [other specified litigation matters] are settled on the following basis:…”

12 The court below was not provided with any of the terms of the settlement except, from a copy of the last page thereof, the settlement included terms that: firstly, Mr Clarke would execute the form of release and indemnity; secondly, that all of the provisions of the settlement would be held in strict confidence; and thirdly, and most importantly, for these purposes:

“11. In the event of any dispute concerning the interpretation or implementation of this agreement, such dispute shall be resolved by Graeme Mew who shall determine the appropriate procedure to be used and whose decisions shall be final and binding.”

13 The form of release and indemnity was comprehensive. The learned judge below, described it as “clear and unambiguous”. It stated, in part:

“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 [various litigation matters].

AND FOR THE SAID CONSIDERATION THE RELEASOR agrees not to make any claims or demands, or commence, maintain or prosecute any action, cause or proceeding for damages, compensation, loss or any other relief whatsoever in connection with the matters released hereby. The Releasor further agrees that this Release shall operate conclusively as an estoppel in the event of any such claim, action or proceeding and may be plead[ed] as such….

THIS RELEASE AND INDEMNITY shall be construed in accordance with the laws of Ontario….

THE RELEASOR DECLARES THAT he fully understands the terms of this settlement and has had the opportunity to obtain independent legal advice prior to executing this document and that he voluntarily accepts the consideration offered for the purpose of making full and final compromise and settlement of all claims as noted above.” (Emphasis supplied)

The Present Claim

14 It is against...