Compass Point Holdings, Ltd v Nagico Insurance Company, Ltd
| Jurisdiction | Turks and Caicos Islands |
| Judge | Mr. Justice Carlos W. Simons |
| Judgment Date | 27 April 2021 |
| Court | Supreme Court (Turks and Caicos) |
| Docket Number | Action No.: CL 35/18 |
Mr. Justice Carlos W. Simons QC
Action No.: CL 35/18
IN THE SUPREME COURT
Mr. Wendal Swann of Swann & Swann, Attorneys for the Plaintiff
Ms. Deborah John-Woodruffe of Misick & Stanbrook, Attorneys for the First Defendant
Mrs. Nayasha Hatmin of Stanfield Greene, Attorneys for the Second Defendant
This action has had a troubled procedural history. In the following background summary, I give only the highlights in so far as I consider those to be relevant to this Ruling.
The action started life as a claim in negligence against the second defendant only. The plaintiff's complaint arises out of property damage caused during the hurricanes of September 2017. The writ and statement of claim were filed on 13 April 2018 claiming damages for negligence. The second defendant acknowledged service on 11 May 2018 but by 12 June 2018 had not put in a defence. The plaintiff filed for default judgment on 13 July 2018, but this was set aside by consent on 5 October 2018.
Inexplicably, a full seven (7) months later, an amended writ of summons and (what is described as) an amended statement of claim was filed by the plaintiff on 23 May 2019. I use the words in brackets to indicate that there are none of the usual markings on the statement of claim to show amendments from the original pleading. The first defendant was now joined. Mr. Swann says that was with the leave of the court. However, the only indication of leave having been granted is a notation in red type at the foot of the writ that reads:
“This Writ is amended this 12 th day of March 2019, pursuant to leave granted by Her Ladyship, Chief Justice Margaret Ramsay-Hale on 27 th January 2019.”
It appears this note is erroneous and should read “27 th February” which is the date mentioned in Mr. Swann's cover letter to the Registrar on 23 May filing the documents. It is puzzling why leave to amend, granted on 27 February was not taken up until three months later! At any rate, no formal order granting leave to join the first defendant (as opposed to mere leave to amend), or any direction requiring the joinder of the first defendant, has been produced and the court's minute of order signed by the former learned Chief Justice following the 27 February hearing makes no mention of joinder of the first defendant. This seems to have been a hearing of NW Hamilton's (then the sole defendant) summons to strike out the statement of claim. It is also not clear that any draft amended writ or statement of claim was placed before the court at the time.
In addition, I have looked at Mr. Swann's written submissions opposing the strike out application by NW Hamilton and that also makes no mention of joining the first defendant. However, this is not to say that there was no discussion between counsel and the learned Chief Justice regarding the matter. This line of investigation is important because when asked, counsel for the Plaintiff says that the court directed the joinder of the first defendant, and he repeats that assertion in his Skeleton Argument opposing the first defendant's summons. However, as mentioned above, no written indication of that direction has come to my attention and in any event, I am bound to apply the procedural rules of the court regarding joinder as I find them.
The kernel of the plaintiff's claim against the first defendant is at paragraph 8 of the amended statement of claim where the plaintiff pleads:
“The first defendant, wrongfully, and in breach of the contract of insurance with the plaintiff, has refused to settle the [plaintiff's] claims, citing irregularities in the procedure adopted by the second defendant in placing the cover.”
And at paragraph 9:
“The first defendant, by its refusal to settle the claim under the policy of insurance, has breached the contract of insurance between itself and the plaintiff, and by doing so has caused the plaintiff loss and damage.”
On this basis the plaintiff claims damages, interest and costs as set out in the prayer for relief. It is noteworthy that there is no particularization of the alleged loss and damage, nor is there any differentiation as between the first and second defendants as to individual liability for any part thereof, nor as to the cause of action against either.
It is also noteworthy that notwithstanding paragraphs 8 and 9, no breach of contract is specifically pleaded against the first defendant. Paragraph 5 comes close but can hardly be said to amount to a specific, full throated allegation of breach of contract such as is required by the principles of pleadings. The consequence is obvious – first principles would suggest that a litigant will not normally be allowed to lead evidence of an allegation he has not pleaded.
The first defendant filed its defence on 26 July 2017. The fact that these pleading deficits are not addressed, except tangentially at paragraph 8, and are not specifically complained of in the first defendant's application does not preclude the court from taking note of them of its own motion and weighing them in the balance of the outcome of the first defendant's summons.
By an amended summons for directions on 22 September 2020 the first defendant sought inter alia to amend its defence. Again, no point was taken on the pleading deficiency – I suppose because as I indicated earlier, an allegation of sorts can be teased out of the language. However, in addition to denying the existence of a contract, the first defendant now pleaded in the alternative, contractual time bar – quoting paragraph 8 (c) of the proposed amended defence: “Liability under the contract expired twelve months from Hurricane Irma, which occurred on 6 & 7 September 2017. Proceedings were commenced against the 1 st Defendant on 23 May 2019, this being over twenty months after Hurricane Irma.”
Following a full hearing of the 1 st defendant's summons for directions, leave to amend was granted by the Learned Chief Justice in paragraph 1 of a Directions Order made on 1 st December 2020 and signed on 8 th December 2020.
This then, is the context in which the first defendant brings its application. By summons filed on 11 March 2021 the first defendant seeks the following relief:
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i. Striking out of the plaintiff's claim against it under RSC O. 18 r. 19 (1) (b) and (d) and/or under the inherent jurisdiction of the court; and/or
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ii. That the first defendant should cease to be a party to the proceedings forthwith pursuant O. 15, r. 6 (2) (a), having been improperly joined by the plaintiff.
The summons is supported by the first affidavit of Shantae Francis which exhibits some of the material upon which the first defendant relies and to which references will be made over the course of this judgment.
O. 18 r. 19 (1) (b) provides that the Court may at any stage of the proceedings order to be struck out or amended any pleading…on the ground that it is scandalous, frivolous, or vexatious; and paragraph (d) of that rule allows striking out etc. if the offending pleading is otherwise an abuse of the process of the Court. In either case the Court may order the action to be dismissed.
The first defendant initially denied the existence of a contract of insurance between it and the Plaintiff and in the alternative, if a contract of insurance exists, the Plaintiff failed to perform its duties thereunder and it is not liable to the Plaintiff whatsoever. But having now pleaded the contractual time bar in the alternative, Ms. John-Woodruffe relies on that to make her case under the rule. She told me that when the defence was initially filed she had not identified the contractual time bar clause at paragraph 19 of the “NAGICO Insurances Fire & Extended Perils Policy” (the policy document) that was exhibited to her affidavit in support of her amended summons for directions, referred to in paragraph 9 above.
Clause 19 of the policy document is in the following terms:
“In no case whatever shall the Company [the first defendant] be liable for any loss or damage after the expiration of twelve months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration.”
Ms. John-Woodruffe submits that, if which she continues to deny, there is a contract between the Plaintiff and the first defendant (as the plaintiff contends) then this clause is a clear and unambiguous bar to the plaintiff's claim, such as to bring it within the strike out purview of RSC O. 19 r. (1) (b) and (d). She further submits that “as soon as an unanswerable time bar is pleaded the 1 st Defendant is not a proper party to the proceedings and is entitled to an order that it cease to be a party…”
In support of her contention in this regard Ms. John-Woodruffe relies inter alia on the English Court of Appeal case of Riches v. Director of Public Prosecutions [1973] 1 WIR 1019. There the court considered the defendant's application to dismiss on grounds that included the assertions that the action was frivolous etc., or that it was statute barred under the Limitation Act 1939, and she quotes the following passage from the judgment of Stepheson LJ:
“…it would be absurd for the court, faced with an application…to strike out…a claim as an abuse of process…to shut its eyes to the fact that there is going to be raised an apparently unanswerable plea of the Limitation Act 1939…Why should such a claim not be an abuse of the process of the court? Why should not the court exercise its inherent jurisdiction to stay or dismiss an action which must fail?” And this:
“In my judgment, Justice requires that no further time or money should be wasted by either party on...
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