Percival Stewart Claimant v [1] Harlequin Properties (Caribbean) Ltd [2] Harlequin Properties (SVG) Ltd [3] Ridgeview Construction (SVG) Ltd Defendants [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Court: High Court (Saint Vincent)
• Judge: Actie M [Ag.]
• Judgment Date: 29 May 2012
• Judgment citation (vLex): [2012] ECSC J0529-4
• Docket Number: SVGHCV 2009/343
• Date: 29 May 2012

Between:

Percival Stewart

Claimant

and

[1] Harlequin Properties (Caribbean) Limited

[2] Harlequin Properties (SVG) Limited

[3] Ridgeview Construction (SVG) Limited

Defendants

[2012] ECSC J0529-4

SVGHCV 2009/343

IN THE HIGH COURT OF JUSTICE

On Written Submissions

Actie M [Ag.]

1 This is an application for striking out the statement of claim; changes to statement of case.

2 The claimant by statement of claim filed on 20^th October 2009 claimed special damages, general damages, further and other reliefs against the first and second named defendants. The claimant alleges that he was employed by the first and second defendants as a painter in 2007 on the defendants' construction site. The claimant alleges that sometime in March 2008 he lost his footing, fell and suffered damages, during his employment on the site, as a result of a discarded cement bag left on the ground which covered a piece of steel. The claimant gave particulars of the injury and claimed special damages totaling the sum of $689,777.41

3 On 24^th November 2009, the first and second defendants filed a defence disputing the claimant's claim. The defence avers that the 1^st named defendant never carried on business in St. Vincent and the Grenadines and did not know in what circumstances it had been made a party to the claim. The defence admits that the 2^nd defendant does business in St. Vincent & Grenadines but in 2006 contracted Ridgeview as an independent contractor with complete possession, management and control of the construction site in 2007 when the claimant suffered his damages. The second defendant states that the claimant was at all material times an employee of Ridgeview.

4 The claimant by way of an amended statement of claim filed on 10^th August 2010 added Ridgeview as a third defendant. In the amended claim the total sum for special damages was amended to $153,867.41 instead of the sum of $689,777.41 initially claimed.

5 The first and second defendants by an amended defence filed on 5^th October 2010 restated that they were not proper parties to the claim,

6 On 26^th October 2010 in a reply to the defence the claimant states that Ridgeview was an agent of the first and second defendants and at all material times was responsible for the damages suffered by the claimant, the first and second defendants having taken over and settled outstanding debts owed by Ridgeview.

7 By a defence filed on 26^th October 2010, the third defendant (Ridgeview) admits that it was engaged as a construction company on the site and terminated the claimant's employment when it became apparent that the claimant was unfit to work. Ridgeview states that it has since ceased to be connected to the construction site. Ridgeview neither admitted nor denied that that it was an agent or an independent contractor of the first and second defendants. Ridgeview at Paragraph 12 of the defence states that if and to the extent it is held liable to the claimant, which it denies, it is entitled and shall claim an indemnity and/or contribution from the first and/or second defendant pursuant to CPR Part 18.3. (My emphasis)

Striking out

8 By application filed on 2^nd June 2011 the first and second defendants apply to the court to strike out the claimant's claim with costs, on the ground that the pleadings disclose no reasonable cause of action against the first and second defendants. The application was supported by an affidavit of Simon John Terry, a solicitor for Harlequin Management Services (South West) Limited.

9 By affidavit filed on 30^th June 2011, the claimant opposes the application to strike out the claim.

The Test for Striking Out

10 It is well settled law that the Court may strike out a statement of case under CPR 2000 Rule 26.3 (1) if it appears to the Court that:

"(a)…

(b) the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a claim."

Additionally, Rule 26.1(2)(1) empowers the Court to dismiss or give judgment on a claim after a decision on a preliminary issue."

11 The seminal test on an application to strike out was stated by Sir Dennis Byron CJ [Ag.], as he then was, inBaldwin Spencer v the Attorney General of Antigua & Barbuda Civil Appeal No. 20 A of 1977 when he said:

'This summary procedure should only be used in clear obvious cases when it can be seen on the face of it, that the claim is obviously unsustainable, cannot succeed or in some other way is an abuse of the process of the court". Striking out has been described as "the nuclear power in the court's arsenal and should not be the first and primary response of the Court…." The Court must be satisfied that a party or that the statement of case 'or Defence" is unable to prove or defend allegations made against another party or that the statement of case or defence is incurably bad or that it discloses no reasonable ground for bringing or defending a case, and has no real prospect of succeeding at trial. The operative issue is whether there is even a scintilla of a defence',

12 In this present claim the claimant was seriously injured on a construction site and suffered damages as a result. Liability and or indemnity are live issues that are to be determined between the parties. The first and second defendants allege that the third defendant, Ridgeview, was at all material times an independent contractor employed to construct a tourist development for the defendants.

13 Rigdeview in its defence filed on October 2010 admits that it terminated the claimant's employment when it became apparent that the claimant was unfit to work. Ridgeview neither admits nor deny that it was an agent or independent contractor of the first and second defendants. Ridgeview states at paragraph 12 of its defence that if and to the extent it is held liable to the claimant, which it denies. it is entitled and shall claim an indemnity and/or contribution from the first and/or second defendant pursuant to CPR Part 18.3. The issue of indemnity is claimed against another when there is a sufficient nexus.

14 The claimant in his claim referred to statements made by CEO of the first and second defendants in the print media about settlement of debts owing by Ridgeview, the third defendant, which had been settled by the second defendant. The claimant made reference to undertakings given by the first and second defendants for payment of unsettled debts of Ridgeview. These are live issues to be ventilated and determined at the trial where further evidence will be provided in witness statement or otherwise.

15 A statement of claim is not suitable for striking out if it raises a serious issue of fact or law which can only be properly determined by submissions or hearing oral evidence. I am of the view that the interest of justice requires that the matter proceed to trial. The claimant should not be stultified at this preliminary stage.

16 Applying the seminal test for striking out and having regard to the issues to be determined between the parties, the application to strike out the claim or in the alternative summary judgment for the first and second defendants is dismissed.

Changes in the statement of Case

17 The matter came up for case management before the Master on 30^th May 2011 whereby standard case management directions were given.

18 The claimant by notice of application with an accompanying further amended statement of claim filed on 8^th July 2011 applies for leave to further amend the amended claim form and to add further particulars pursuant to CPR Rule 20.1. The application is supported by the claimants' affidavit dated 30^th June 2011 in opposition to the first and second defendant's application to strike out the claim.

19 The material terms of the propose further amendments are summarized below:

"A correction of the name of the second defendant to read Harlequin Property (SVG) limited instead Harlequin Properties (SVG) limited

"Paragraph 1 was amended to read "that the claimant was employed with thethird defendant…"

Paragraph 4 was amended to read thesecond defendant at first transported the claimant…"

Paragraph 6 — the third defendant was the agent at all material times...