Otto Sam Claimant v Tyrone Burke (The Chief Personnel Officer) Michelle Forbes (The Director, National Emergency Management Organization) Judith Jones-Morgan (Attorney General) Defendants [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Thom J.,Gertel Thorn
• Judgment Date: 17 June 2013
• Judgment citation (vLex): [2013] ECSC J0617-2
• Court: High Court (Saint Vincent)
• Docket Number: HIGH COURT CIVIL CLAIM NO. 399 of 2010
• Date: 17 June 2013

[2013] ECSC J0617-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

HIGH COURT CIVIL CLAIM NO. 399 of 2010

Between

Otto Sam

Claimant

and

Tyrone Burke (The Chief Personnel Officer)

Michelle Forbes (The Director, National Emergency Management Organization)

Judith Jones-Morgan (The Attorney General)

Defendants

Appearances:

Mr. Jomo Thomas for the Claimant

Mr. Grahame Boilers for the Defendants

RULING

1 Thom J.— On 30 ^th January 2012 Mr. Otto Sam was granted leave to make a claim for judicial review of the decision contained in the Chief Personnel's letter of August 17, 2010.

2 In his claim form filed on February 13, 2012, Mr. Otto Sam seeks the following orders:

• (1) An order that the actions of Mr. Tyrone Burke, Chief Personnel Officer in transferring the Claimant from his post as a Head Teacher to no post at NEMO was arbitrary and irrational.

• (2) An order that the action of Mr. Tyrone Burke, Chief Personnel Officer in transferring the Claimant from his post as Head Teacher to perform menial task at NEMO and then sent on 90 days compulsory leave following the occurrence of Hurricane Tomas is illegal and irrational.

• (3) Damages for the time in which the Claimant was removed from his position as Head Teacher.

• (4) Costs.

3 The matter was listed for trial on April 23, 2013.

4 On April 18, 2013 the Defendants filed an application seeking the following orders:

• (1) The 1 ^st, 2 ^nd and 3 ^rd Defendants be struck out as parties to the claim.

• (2) The reliefs claimed be struck out.

• (3) Paragraphs 9–16,19–22 and 25–28 be struck out from the statement of claim.

5 The grounds on which the application is based are:

• (1) Leave was granted for a review of the decision in the letter of August 17, 2010 on the grounds of irrationality and illegality and the 2 ^nd and 3 ^rd Defendants had no involvement in issuing the letter to the Claimant and the letter was signed by the First Defendant on the direction or on behalf of the Permanent Secretary Ministry of Education.

• (2) The letter of 17 ^th August 2010 was an assignment made by the Permanent Secretary in the Ministry of Education and not a transfer by the First Defendant.

• (3) Leave granted by the Court did not cover the Claimant being transferred to perform menial task or the issue regarding 90 days compulsory leave following the occurrence of Hurricane Tomas.

• (4) Paragraphs 9–16,19–22 and 25–28 are an abuse of process they do not relate to the matter for which leave was granted.

6 Written submissions were made by the Claimant and the Defendants on the 8 ^th and 9 ^th of May respectively.

7 Mr. Thomas also submitted that leave was granted inter partes therefore the proper procedure was for the Defendant to appeal the order granting leave and not to seek to strike out the claim. The Defendants are indirectly seeking to set aside the leave granted. Learned Counsel referred the Court to the cases of Gary Nelson v Attorney-General, et al ANVHCV 2008/0552, and R v Secretary of State for the Home Department ex parte Chinoy (1991) Admin.

8 While I agree with the submission of Mr. Thomas, that is the general principle. Where for example the statement of case or a part of the statement of case is not in keeping with the leave granted, the statement of claim of the part of the statement of claim ought to be struck out.

9 CPR 26.3 (1) provides for the court to strike out a statement of case or part of a statement of case. It is generally accepted that striking out is a draconian step and one which the court will use sparingly. It is to be used only in plain and obvious cases. In Robert Convich v Ann Van Per Elst AXA HCV 2001/002 Rawlins J (as he then was) in considering an application to strike out stated:

"It is only where a statement of case does not amount to a viable claim or defence or is beyond cure that the court may strike out."

10 In Citco Global Custody v Y2K Finance BVICVA No. 22/2008 Edwards JA after referring to Blackstone's Civil Practice 2009 identified the governing principles when determining whether to strike out a statement of case as follows:

"…the following circumstances are identified as providing reason for not striking out; where the argument involves a substantive point of law which does not admit of a plain and obvious answer; or the law is in a state of development; or where the strength of the case may not be clear because it has not been fully developed. It is also well settled that the jurisdiction to strike out is to be used sparingly since the exercise of the jurisdiction deprives a party of its right to a fair trial and the ability to strengthen its case through the process of disclosure and other court procedures such as requests for information; and the examination and cross-examination often change the complexion of a case. Also before using CPR 26.3(1) to dispose of 'side issues', one should be taken to ensure, "that a party is not deprived of the right to trial on issues essential to its case. Finally in deciding whether to strike out, the judge should consider the effect of the order on any parallel proceedings and the power of the court in any application must be exercised in accordance with the overriding objective of dealing with cases justly."

PROPER PARTIES TO THE CLAIM

11 Mr. Boilers submitted that the 1 ^st Defendant is not a proper party to the claim because he deposed that he wrote the letter on behalf of the Permanent Secretary in the Ministry of Education.

12 The 2 ^nd Defendant is not a proper party since there is no allegation that she made the decision to assign the claimant to NEMO and the Claimant has not claimed any relief against the 2 ^nd Defendant. Leave was not granted to pursue any allegations against the 2 ^nd Defendant.

13 The 3 ^rd Defendant, the Attorney General was not a proper party since no allegations were made against the Attorney General, nor reliefs claimed against her. Learned Counsel referred the Court to the decision of the Privy Council in the case of The Ministry of Foreign Affairs, Trade and Industry v Vehicles and Supplies Limited and Industrial Garage Limited No. 2 of 1991.

14 Mr. Thomas in reply submitted that the 1 ^st Defendant is a proper party since pursuant to Section 2:17 (1) (c) of the Civil Service Orders for the Public Service of Saint Vincent and the Grenadines, transfers must be made by the Chief Personnel Officer. The Chief Personnel Officer issued the letter. Further secondment pursuant to Section 2:19 must be authorized by the relevant service commission, in this case the Public Service Commission. The Chief Personnel Officer is the Head of the Public Service. Alternatively, the Court should grant leave to the Claimant to file claim pursuant to part 56.4 to add the Public Service Commission and or the Permanent Secretary in the Ministry of Education.

15 Mr. Thomas also referred the Court to Section 15(2) of the Crown Proceedings Act and submitted that all civil proceedings against the Crown must be instituted against the Attorney General. Therefore the Attorney General is a proper party.

FINDINGS

First Defendant

16 I respectfully disagree with the submission of Mr. Boilers that the 1 ^st Defendant is not a proper party. The letter of August 17, 2010 was issued by him. The mere fact that the 1 ^st Defendant deposed that he wrote the letter at the instance of the Permanent Secretary in the Ministry of Education does not mean he is not a proper party. Further the 1 ^st Defendant did not state in his affidavit that he was directed by the Permanent Secretary in the Ministry of Education to write the letter or that he wrote it on her behalf as submitted by Mr. Boilers. The 1 ^st Defendant deposed at paragraph 8 of his affidavit as follows:

"… My letter was written at the instance of the Permanent Secretary who advised and I verily believe the same to be true that the Permanent Secretary in the Ministry of National Security requested someone to be temporarily assigned to NEMO to assist with the preparation of a national...