IN THE HIGH COURT OF JUSTICE BEVERLEY ANN METIVIER AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN BEVERLEY ANN METIVIER CLAIMANT AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO 1 st DEFENDANT AND EVOLVING TECHNOLOGIES AND ENTERPRISE DEVELOPMENT CO. LTD. (E-TECK) 2 nd DEFENDANT AND WENDY HOYTE 3 rd DEFENDANT Before the Honorable Mr. Justice V. Kokaram Appearances: Mr. Sanjeev Badri-Maharaj for the Claimant (amicus) Mr. R. Armour SC and Mr. M. George instructed by Ms. Vinda Maharaj for the First Defendant Mr. Ian L. Benjamin instructed by M. Ferdinand for the Second Defendant 1

2 JUDGMENT 1. Introduction: 1.1 Beverly Ann Metivier, the Claimant, operated a farm on a parcel of land at Lot 178 Cumuto Road, Wallerfield ( the subject premises ). According to her, she entered into a lease agreement with the Attorney General, the first Defendant for a period of 30 years from February 2001, with respect to the subject premises. She alleges in this action that Evolving Tecknologies and Enterprise Development Company Limited, the second Defendant, acting through its Manager of Legal Services, Wendy Hoyte, the third Defendant caused her to close the farm in 2003 as a result of a relocation exercise that was being conducted by the second Defendant. The Claimant claims that the second and third Defendants have not made any firm offer to compensate her for the proposed relocation. In those circumstances the Claimant commenced this action for damages for breach of contract, negligence, breach of promise and breach of statutory duty. 1.2 In my judgment there is absolutely nothing in the statement of case which justified the commencement of these proceedings nor warrants further enquiry. The Claimant s claim amounts to no more than an allegation that the second and third Defendants failed to make an offer to compensate the Claimant in the event that she accepted the Defendant s invitation to consider the prospect of relocation. In my view there are no facts pleaded in the statement of case which discloses any cause of action in either contract, negligence or breach of statutory duty against the Defendants. 1.3 Both the first and second Defendants filed full written submissions in support of the contention that the statement of case discloses no ground for bring this claim. This Court agrees with the Defendants and therefore this statement of case and this claim is struck out. 2

3 2. The Claim: 2.1 The Claimant is a livestock farmer who operated a farm at the subject premises. In her statement of case the Claimant contends that through her father she entered into a lease agreement with the first Defendant for a period of 30 years. The lease annexed to the statement of case is a Standard Agricultural Lease made between the State and one Donnie Metivier dated 1 st February There is no reference in that Deed to this Claimant. By the terms of that lease, in consideration of the rent and the covenants reserved therein, the subject premises were demised by the State unto Donnie Metivier for a period of 30 years from 1 st February Although the Claimant s statement of case demonstrates that there is no lease agreement made between the State and the Claimant, the first Defendant, in its defence refers to a Deed of Gift made between Donnie Metivier and the Claimant assigning his interest in the said premises to the Claimant. 2.3 The Claimant contends that it was an implied condition of the said (lease) agreement that the first Defendant would allow the Claimant to peacefully enjoy the entire lease without hindrance or interruption. Pursuant to the terms of the lease the first Defendant was entitled to re-enter and reclaim one twentieth of the demised lands should the first Defendant require the demised lands for public use. In 2003 the Claimant contends that the second Defendant through the third Defendant visited the farm and directed that the Claimant wind down and cease all farming operations. The Claimant complied and an exchange of correspondence followed in relation to the issue of relocation. 2.4 By letter dated 19 th July 2004, the second Defendant explained that it was mandated by the Government to develop approximately 1100 acres of lands at Wallerfield into the Wallerfield Industrial and Technology Park. The Claimant s farm was just outside and bordering the site and in those circumstances the second Defendant wished to consider the relocation of the Claimant s premises. The letter outlined an 3

4 approach to relocation and extended an invitation to hold discussions with the Claimant. 2.5 By letter dated 23 rd September 2004 the second Defendant again invited the Claimant to meet to discuss proposals for relocation. By letter dated 13 th June 2005 the Claimant submitted to the second Defendant a breakdown of a proposed settlement sum of approximately $8million to compensate her for her relocation. This was followed by a letter dated 1 st July 2005 from the Claimant to the third Defendant stating the Claimant s expectation that the third Defendant will negotiate in good faith to a mutually satisfactory outcome. She also outlined in her letter the factors to be taken into account to arrive at an appropriate compensation for the Claimant in the event of relocation. 2.6 The second Defendant in a letter dated 1 st September 2005 outlined to the Claimant the options being proposed by the second Defendant as guidelines for the settlement of compensation and relocation of occupants on and bordering the site of the Wallerfield Park. The second Defendant made it clear that in the event that private negotiations failed, the Government would proceed to the compulsory acquisition of the farms. The Claimant s complaint, however, was that this letter did not acknowledge the principles of settlement as outlined in her previous correspondence. 2.7 By letter dated 9 th November 2005, Mr. Kenneth Munroe-Brown indicated that he was appointed to act as attorney at law for the Claimant and requested a conference to hammer out an amicable settlement. After conferences, conversations with the third Defendant and an exchange of correspondence, in which Mr. Brown used unnecessary intemperate language to express his impatience in awaiting an offer from the second Defendant, the parties simply did not agree to any form of compensation. The Claimant maintained her request for compensation of $8million and the second Defendant requested documentation and justification from the Claimant to support that proposal. 4

5 2.8 The Claimant eventually issued her pre action protocol letter dated 27 th November 2006 indicating her intention to commence litigation on the basis that the second Defendant failed to table a reasonable offer and to arrive at an amicable settlement. The Claimant stated that if the second Defendant failed to table a proper compensation package within 7 days of receipt of this letter legal proceedings shall be instituted against you and Ms. Wendy Hoyte in her person and individualised capacity. 2.9 Against this backdrop the Claimant pleads as follows in her statement of case: 32. To date, no response has been forthcoming from the Defendants and all negotiations has shut down and the Claimant continue to maintain losses running for over 3 years since the shut down of her farming operations and continuing. PARTICULARS (i) The Claimant contract ended prematurely when the Defendants caused the Claimant to vacate and shut down her business operations. (ii) Discussions and negotiations ensued between the Claimant and the 2 nd and 3 rd Defendants upon which the 2 nd and 3 rd Defendant has failed in their promise to table an offer or counter offer to the Claimant s proposal for settlement for losses incurred upon the Claimant by the actions of the Defendants. (iii) The Claimant by herself has failed to obtain a settlement with the Defendants and attempts by her attorney-at-law has also turned into long drawn out procedure as it appears the Defendants are reluctant to arrive at a settlement figure. (iv) A period of 3 years and more has passed since the shut down of farming operations and the Claimant has been without a source of income and continues to suffer hardship as a result of the Defendants actions. 5

6 The Claimant will rely on the particulars stated at paragraph 1 to 31 inclusive hereof. Further or alternatively so far as may be necessary the Claimant will rely upon the doctrine of res ipsa loquitur and the circumstances thereof resulting in the Claimant s injuries, as far as may be necessary Paragraph 32 of the Statement of Case virtually sets out the essence of the Claimant s claim. Based on these facts the Claimant claims by her claim form filed on 7 th September 2009, the following: Against the First Defendant: (1) Damages for Breach of Contract. (2) Aggravated Damages. (3) Interest. (4) Costs. (5) Such further and/or other relief as the court may deem just. Against the Second and Third Defendants: (1) Damages for Negligence, Interference with Contract and Trade, Breach of Statutory Duty and Breach of Promise. (2) Damages in the sum of $912,400 for loss of infrastructure. (3) Damages in the sum of $7,157,120 for loss of income. (4) Damages for loss of right of option to renew under option to renew. (5) Aggravated Damages. (6) Interest. (7) Costs. (8) Such further and/or other relief as the court may deem just. 3. The application to strike out 3.1 In their Defence, the Defendants raised as a preliminary issue that the statement of case disclosed no reasonable cause of action. On 14 th February 2008, Kangaloo J by consent, granted the Claimant permission to withdraw its claim against the third named Defendant with no order as to costs. Kangaloo J then gave directions for the parties to file their written submission on the preliminary issue. 6

7 3.2 By order dated 12 January 2009 Best J granted leave to Mr. Kenneth Munroe- Brown to cease to act for the Claimant as her attorney at law. The Claimant is the only party who has failed to file any written submissions on the preliminary issue. Both Defendants filed their respective written submission on 18 th April 2008 and 5 th February When this matter came on for hearing before me the Attorneys for the Defendants indicated that they had nothing further to add to their written submissions. Mr. Badri-Maharaj appeared amicus for the Claimant and indicated that the Claimant may adopt a certain course. In any event he agreed that the Court should consider the submissions and deliver its judgment. 4. The power to strike out a Statement of Case: 4.1 Rule 26. 2(1) (b) and (c) CPR empowers the Court to strike out a statement of case or part of a statement of case if it appears to the Court that the statement of case or the part to be struck out is an abuse of the process or discloses no grounds for bringing or defending the claim. The statement of case is a fundamental pillar to the Claimant accessing justice under the CPR. It must be carefully drafted so as to properly articulate the facts in support of the cause(s) of action or the basis on which the claim is being made against the Defendant. This duty is reinforced by rule 8.6(1) and (2) CPR which mandates that the claimant include in his claim form or statement of case, a short statement of all the facts on which he relies and to identify or annex a copy of any document which the claimant considers necessary to his case. 4.2 The principles of proper pleading has not been jettisoned by the general wording of rules 8.6(1) and (2) CPR. The duty to state material facts necessitates a careful attention to the details of the case that are material to establishing a claim. 7

8 4.3 In Kirby v Sanderson Motors Pty Limited 1, Hodgson JA examination of the requirements for a pleading to state material facts is just as appropriate to our rules: It might appear that these rules [the Supreme Court Rules] do not require that causes of action be stated in pleadings; the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion - Material means material to the claim, that is, to the cause or causes of action which are relied on. (2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract. (3) The general requirement to avoid surprise means that material facts must be stated in such a way that the defendant can understand the materiality of the facts, that is, how they are material to a cause of action. 4.4 The importance of properly setting out the case in the statement of case is underscored in a court driven system of case management where the Court in furthering the overriding objective by actively managing cases must decide promptly which issues need full investigation and trial and disposing summarily of the others. See r 25.1 CPR. 4.5 Johnson J in McGuirk v The University of New South Wales 2 usefully reinforced the function of pleadings in the context of applications to strike out a statement of case: 21 The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at 1 [2002] NSWCA 44; (2001) 54 NSWLR [2009] NSWSC

9 trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; [1982] 148 CLR 658 at 664; Banque Commerciale at In Perpetual Trustees Victoria Limited v Dunlop [2009] VSC 331, Forrest J observed at [24] that the rules of pleading are the servants of the interests of justice, with those interests demanding that a party have every opportunity to plead out an arguable case against other parties, but that those other parties have, at an early point in the proceedings, the opportunity to be properly appraised of the case against them. 23 Pleadings provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the Court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at [100]- [103]. 24 Proper pleading is of fundamental importance in assisting Courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s.56 Civil Procedure Act It stands to reason therefore, that a Claimant s case must be properly pleaded in his statement of case as it provides the structure for defining the legal issues to be determined. It also assists the Court in determining the best method of managing the case and allocating the Court s resources for the appropriate resolution of the claim. 4.7 Of course, the power to strike out is one to be used sparingly and is not to be used to dispense with a trial where there are live issues to be tried. A. Zuckerman observed: The most straightforward case for striking out is a claim that on its face fails to establish a recognisable cause of action (Eg. a claim for damages for breach of contract which does not allege a breach). A statement of case may be hopeless not only where it is 9

10 lacking a necessary factual ingredient but also where it advances an unsustainable point of law Porter LJ in Partco Group Limited v Wagg 4 surmised that appropriate cases that can be struck out for failing to disclose a reasonable ground for bring a claim include: (a) where the statement of case raised an unwinnable case where continuing the proceedings is without any possible benefit to the Respondent and would waste resources on both sides Harris v Bolt Burden [2000] CPLR 9; (b) Where the statement of case does not raise a valid claim or defence as matter of law 4.9 Where a party advances a groundless claim it is a waste of the Court s resources and it defeats the overriding objective of these rules to give directions for a trial. The appropriate response by the Court is to strike out the groundless claim at the outset. Such a response in dealing with baseless claims is a proportionate, just and expeditious means of dealing with the claim. 5. No reasonable claim against the first Defendant: 5.1 The first Defendant submitted that there is no factual nexus to establish a contractual relationship between the Claimant and this Defendant. I agree. The Statement of Case discloses no contract between the State and the Claimant. The lease on which the Claimant relies to establish a relationship with the first Defendant is a contract made between Donnie Metivier and the State and not the Claimant. There is no specific averment that the State ordered the winding down of the Claimant s farming operations. In any event the documents relied upon by the Claimant do not support the issuing of any such order by the first Defendant. 5.2 By letter dated 21 st September 2005 the second Defendant indicated that in the event that the negotiations were to be fruitful and sales could be concluded the 3 Civil Procedure (2003) 4 [2002] EWCA Civ

11 GORTT would be requested to compulsory acquire the property... The issue of the compulsory acquisition by the State has therefore not yet arisen. The negotiations that ensured between the parties were made between the second Defendant and the Claimant. There are no allegations that the said negotiations were conducted on behalf of the first Defendant. It is in my view insufficient to establish a cause of action against the State in this case by the Claimant s simple assertion in her Statement of Case the first Defendant is a client of the second Defendant. Not only is that on its face unintelligible, it is contradicted by the chronology of events as alleged in the statement of case and the documents relied upon by the Claimant. See Joan Jacob v Housing Development Corporation CV where similarly, the absence of any facts to support a cause of action was fatal to the claimant s claim and it was struck out. 5.3 In proceedings against the State the statement of case must contain reasonable information as to the circumstances in which it is alleged that the liability of the State has arisen, and as to the government department and officers of State involved. See rule 56.4 CPR. The Claimant has failed to do so in this case. The allegations and particulars referred to in paragraph 32 of the Claimant s Statement of Case simply do not establish any cause of action in contract. There is no specific plea in the statement of case identifying any breach of contract by the first Defendant. The claim against this first Defendant is therefore unsustainable. 5.4 I now consider the claim against the second Defendant under the various causes of action referred to in the claim form. 6. The second Defendant-No ground for for breach of contract: 6.1 The essence of the claim is that the second Defendant failed to table a counter offer to the Claimant s proposal for settlement. There is no allegation in this Statement of Case which can remotely give rise to a cause of action in contract. I adopt the 11

12 approach advanced by Lord Diplock in Gibson v Manchester City Council 5 in determining whether an agreement has been made by parties: I can see no reason in the instant case for departing from the conventional approach of looking at the handful of documents relied upon as constituting the contract sued upon and seeing whether upon their true construction there is to be found in them a contractual offer by the corporation to sell the house to Mr. Gibson and an acceptance of that offer by Mr. Gibson. I venture to think that it was by departing from this conventional approach that the majority of the Court of Appeal was let into error. 6.2 The letter dated 19 th July 2004 from the second Defendant referred to in the statement of case, is significant. It outlines the second Defendant s consideration of a relocation of premises outside and bordering the Wallerfield Park. The letter explains that the generally the approach to relocation involved: One to one meetings with occupiers. The valuation of the farms structures and crops. Discussions and negotiations with occupants. Examination of all available options open to you. Agreement on compensation and relocation. This was a framework to hold discussions with occupants of the farms in relation to relocation. 6.3 Neither in this letter nor in any correspondence relied on by the Claimant was there any agreement, promise or unconditional offer to compensate the Claimant made by the second Defendant. At best the second Defendant s proposals amounted to an invitation to treat. See Chitty on Contracts paragraph to The Claimant made an initial offer for settlement in the sum of approximately $8m. The parties engaged in negotiations with the Claimant being consistent in maintaining her position and the second Defendant similarly being consistent in not making any commitments on either a settlement figure or proposal for relocation. 5 [1979] 1 WLR

13 The Claimant is very much in a similar position to Mr. Gibson in Gibson v Manchester CC. In that case the City Council had written Mr. Gibson saying the corporation may be prepared to sell the house to you at the purchase price of 25 less 20%. Lord Diplock stated that it was impossible to construe that letter as a contractual offer capable of being converted into a legally enforceable open contract for the sale of land by Mr. Gibson written acceptance. The words may be prepared to sell are fatal to this. The second Defendant s simple position as articulated in the correspondence relied upon by the Claimant, was for the Claimant to consider three options in the overall negotiations of proposals on relocation. As in Gibson I can cull no legally enforceable contract for the words used by the parties in this case. 6.5 Taken at its highest, the parties entered into negotiations. It is important to note that based on the pleadings and supporting documents, there was no condition imposed on the Claimant that the farm should cease operating during the course of negotiations. Even if it can be contended that the second Defendant directed a closure of the Claimant s farm, the Claimant accepted that position and entered into negotiations. The essence of the claim is that the negotiations did not bear fruit. Lord Denning MR in Courtney & Fairbarn Limited v Tolaini Brothers (Hotels) Limited 6 examined the legal effect of offers to negotiate and referred to the judgment of Lord Wright in Hillas and Co Limited v Arcos Limited 7 in which he stated: There is then no bargain except to negotiate, and negotiations may be fruitless and end without any contract ensuing; yet even then, in strict theory, there is a contract (if there is good consideration) to negotiate, though in the event of repudiation by one party the damages may be nominal,.. Referring to that assessment of Lord Wright, Lord Denning MR opined: That tentative opinion by Lord Wright does not seem to me to be well founded. If the law does not recognise a contract to enter into a 6 [1975] 1 WLR (1932) 147 L.T

14 contract (where there is a fundamental term yet to be agreed) it seems to me it cannot recognise a contract to negotiate. The reason is because it is too uncertain to have any binding force. No court could estimate the damages because no one can tell whether the negotiations would be successful or would fall through: or if successful, what the result would be. It seems to me that a contract to negotiate, like a contract to enter into a contract, is not a contract known to the law. 6.6 Similar sentiments were expressed by Lord Ackner in Walford v Miles (H.L.(E.)): A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of a negotiating party. It is here the uncertainty lies. In my judgment, while negotiations are in existence either party is entitled to withdraw from those negotiations, at any time and for any reason. There can be thus no obligation to continue to negotiate until there is a proper reason to withdraw. Accordingly a bare agreement to negotiate has no legal content. 6.7 The options that were available to the Claimant were to continue to negotiate with the second Defendant or deal with the State in a compulsory acquisition. The Claimant s best case is that the parties agreed to enter into negotiations which failed to culminate in agreement. This however does not give rise to a claim in breach of contract. Any such agreement is unenforceable and has no legal content. 7. No ground for bringing a claim in negligence/statutory duty 7.1 There are no facts pleaded to support any breach of duty or statutory duty. The Claimant has failed to set out its case pursuant to r 8.6 CPR to provide any facts in support of any claim establishing a duty of care and a breach of that duty. There is no legal duty to negotiate or to make an offer to settle. Furthermore the doctrine of res ipsa loquitur is not a cause of action. Reliance on the doctrine in this case is not only unhelpful, it is unintelligent. 14

15 8. Conclusion 8.1 The facts alleged by the Claimant are not deserving of any further investigation. The claim does not give rise to any cause of action against the defendant. In furthering the overriding objective, it is best if the matter ends here. The Statement of Case is struck out and the claim is dismissed. I will hear counsel on the appropriate award of prescribed costs to be made in this matter pursuant to rule 67.5(2) (iii) CPR. Dated: February 10, 2010 Vasheist Kokaram Judge 15