IN THE HIGH COURT OF JUSTICE BETWEEN JULIANA WEBSTER CLAIMANT AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN JULIANA WEBSTER CLAIMANT AND REPUBLIC BANK LIMITED PC KAREN RAMSEY #13191 PC KERN PHILLIPS #16295 THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO DEFENDANTS BEFORE THE HON. MADAME JUSTICE JOAN CHARLES Appearances: For the Claimant: For the Second, Third and Fourth-named Defendants: Mr. C. Gift, S.C., instructed by Ms. J. Gift Ms. M. Smith, instructed by Ms. P. Cross Date of Delivery: 12 th October, 2012 DECISION Page 1 of 16

2 BACKGROUND [1] By Amended Fixed Date Claim Form and Statement of Case filed on the 11 th November, 2011, the Claimant is seeking the following reliefs: i. A Declaration that the Defendants were not entitled to subject the Claimant to a search of her handbag and a strip search at the First-named Defendant s premises on the 7 th August, 2007; ii. iii. A Declaration that the said searches constituted: a. An assault and trespass to her person; b. An invasion of her privacy; c. A breach by the First-named Defendant of what would have been implicit as to the procedures to be followed regarding the intervention by the police at its branches; d. A breach of an implied and/or express term of the Claimant s contract that the First-named Defendant would provide and maintain a safe and healthy work environment for its staff; e. A violation of her fundamental rights being unnecessarily protracted, excessive and unreasonable; f. A breach of the OCCUPATIONAL HEALTH AND SAFETY ACT, CHAP. 88:08. A Declaration that the detention of the Claimant contravened her right: a. To liberty and/or security of the person; b. Not to be deprived thereof except by the due process of law; c. To the protection of the law; and, Page 2 of 16

3 d. Not to be deprived of her liberty except by due process. iv. A Declaration that the detention of the Claimant was arbitrary, oppressive and unconstitutional; v. A Declaration that the Claimant was unlawfully detained during the period 6:15 p.m. to 7:15 p.m. on the 7 th August, 2007 thereby infringing her rights under SECTION 4(a) and 5(2)(a) of the CONSTITUTION; vi. A Declaration that the actions of the Second and Third-named Defendants were unconstitutional and illegal and contravened the Claimant s right to liberty and security of the person, to equality before the law and protection of the law and to freedom of movement; vii. A Declaration that the First-named Defendant was culpable in providing the environment in which it became permissive for the Second and Third-named Defendants to exercise authority over the Claimant in violation of her constitutional rights; viii. A Declaration that the First-named Defendant was culpable with the other Defendants in falsely imprisoning the Claimant; ix. A Declaration that in the absence of the arrest of the Claimant, the strip and cavity search of the Claimant was illegal; x. A Declaration that in the absence of the Claimant first being arrested, the conduct of a strip and/or cavity search or both upon the person of the Claimant constitutes a trespass upon her; xi. Damages for false imprisonment, assault and trespass to the persons against all Defendants; and xii. Damages for anxiety, stress, trauma, humiliation and embarrassment against all Defendants. Page 3 of 16

4 [2] It is pertinent to note that the First-named Defendant Republic Bank Limited is a company registered under the COMPANIES ACT, CHAP. 88:01; the Second and Third-named Defendants are being sued in their capacities as Police Officers of the State. The Fourth-named Defendant is being sued in its representative capacity with regard to the suits against the Second and Third-named Defendants. APPLICATION [3] By Application filed on the 12 th March, 2012, the Second, Third and Fourthnamed Defendants sought to have the Amended Fixed Date Claim Form and Amended Statement of Case filed herein struck out pursuant to PART 26.2(1)(a) 1 and (b) 2 of the CIVIL PROCEEDINGS RULES 1998 ( CPR ). [4] The grounds of the Application are that: i. The Claimant has failed to comply with PART of the CPR in that: a. She has filed an Application for relief pursuant to SECTION 14(1) 4 of the CONSTITUTION but in breach of PART 56.7(2) of the CPR the claim was not headed Originating Motion and served as such; 1 The court may strike out a state of case or part of a statement of case if it appears to the court that there has been a failure to comply with a rule, practice direction or with an order or direction given by the court in the proceedings. 2 The court may strike out a state of case or part of a statement of case if it appears to the court that the statement of case or the peat to be struck out is an abuse of process of the court. 3 How to make an application for an administrative order 4 For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion. Page 4 of 16

5 b. In breach of PART 56.7(3) of the CPR the Claimant hast not filed an affidavit with the said Claim Form; ii. The continuance of this action by way of Fixed Date Claim Form is an abuse of process because: a. There is a parallel remedy in tort available to the Claimant; b. The claim does not fall within any of the categories listed in PART 8.1(4) 5 of the CPR; and, c. The claim does not disclose exceptional circumstances which gives the Claimant the right to apply to the High Court for redress pursuant to SECTION 14(1) of the CONSTITUTION. SUBMISSIONS CLAIMANT [5] The Claimant filed her Reply to the Second, Third and Fourth-named Defendants Application on the 28 th May, [6] Counsel for the Claimant submitted that the claims made in this matter are not solely based on an application under SECTION 14(1) of the CONSTITUTION. In this matter, claims are made both against the State resulting from the conduct of certain Police Officers and also against a private entity Republic Bank Limited. 5 Form 2 (fixed date claim form) must be used - (a) in proceedings for possession of premises (b) in claims arising out of hire-purchase or credit card sale agreements; (c) whenever its use is required by a rule or practice direction; and, (d) whereby an enactment proceedings are to be commenced by originating summons or motion. Page 5 of 16

6 [7] He further submitted that the CPR 6 permits the use of either a statement of claim or affidavit with a fixed date claim form. Counsel cited the cases of Antonio Webster v The Attorney General of Trinidad and Tobago 7, Kelvin Parmassar v The Attorney General of Trinidad and Tobago 8 and The Attorney General of Trinidad and Tobago v Siewchand Ramanoop 9 as support for this proposition. [8] Counsel went on to submit that these proceedings can be initiated by fixed date claim form and statement of case pursuant to PART 8.1(4) of the CPR. Additionally, Counsel urged the Court to exercise its discretion under PART of the CPR should there be any error of procedure in the Claimant s pleadings. [9] In response to the Defendants contention that this claim does not fall within any of the categories listed in PART 8.1(4) of the CPR and therefore cannot be initiated by fixed date claim form, Counsel for the Claimant relied on the case of Antonio Webster v The Attorney General of Trinidad and Tobago 11. In this case, it was held that in matters relating to SECTION 14(1) of the CONSTITUTION the application ought to be made as a fixed date claim, followed by an application to the court for directions that the whole application be dealt with as a claim and also for directions for the filing of necessary pleadings and/or documents. 6 Form 2: Fixed Date Claim Form, pp A statement of case or an affidavit giving full details of the claimant s claim should be served on you with this claim form. 7 Civ. App. No. 113 of Civ. App. No. 120 of [2005] UK PC General power of the court to rectify matters where there has been an error of procedure. 11 Op. cit. Page 6 of 16

7 [10] Further, in reply to the Defendants submission that the claim does not disclose exceptional circumstances giving the Claimant a right to apply to the High Court for redress pursuant to SECTION 14(1) of the CONSTITUTION, Counsel asserted that the arbitrary use of State power in carrying out an illegal body and cavity search of the Claimant amounted to exceptional circumstances. SECOND, THIRD AND FOURTH-NAMED DEFENDANTS [11] The Second, Third and Fourth-named Defendants filed their submissions in reply to the Claimant on the 22 nd June, [12] In response to the Claimant, Counsel for the Defendants cited the case of Thakur Persad Jaroo v The Attorney General of Trinidad and Tobago 12 in support of their argument that: i. SECTION 14(1) relief can only be sought in exceptional circumstances where there is a parallel remedy; and, ii. The originating motion procedure under SECTION 14(1) of the CONSTITUTION should only be used where the facts are not in dispute and the only issues remaining are questions of law. [13] Counsel submitted that in the present case the facts are in dispute as borne out in the pleadings. Counsel also submitted that the Claimant has a parallel remedy in tort as shown in her Amended Fixed Date Claim Form and Statement of Case where she is seeking damages for false imprisonment, assault and trespass to the person against all the Defendants. 12 (2002) UKPC 5 Page 7 of 16

8 [14] In further support of their argument that there were no exceptional circumstances to allow the Claimant to pursue SECTION 14(1) relief, Counsel relied upon the Privy Council decision of Antonio Webster v The Attorney General of Trinidad and Tobago 13. In this case, reference was made to the decision in The Attorney General of Trinidad and Tobago v Siewchand Ramanoop, where Lord Wilson opined: What was the feature which entitled the claimant in Ramanoop not to make his claims in tort for assault, battery and false imprisonment and therein to claim exemplary damages including by reference to breaches of his constitutional rights? The Board s answer was that the police officer s conduct, which had been quite appalling, had represented a shameful misuse of the coercive powers with which the state had endowed him... It is suggested that the Board s answer has made it difficult for advice to be given about the proper form of claim against police in respect of unlawful violence. But the Board made clear that it was not departing in any way from the guidance which it had given in Jaroo. Such remains the principal guidance. The facts in Ramanoop exemplify the exceptional circumstances [15] Counsel argued that the Claimant s case does not fall within these exceptional circumstances which would give her the right to apply to the High Court for redress under SECTION 14(1) of the CONSTITUTION. Counsel submitted that the Claimant s case does not disclose that she had been the victim of the type of violence at the hands of the Police as exemplified in The Attorney General of Trinidad and Tobago v Siewchand Ramanoop. 13 [2011] UKPC 22, para. 19 Page 8 of 16

9 [16] Finally, Counsel submitted that the Claimant s argument that her claim is mixed in nature is without merit. She stated that the correct approach should have been for the Claimant to frame the claim as being for damages in tort and should seek to amend her claim to exclude the declaratory relief. In support of this position, Counsel cited the dicta of Lord Wilson in Antonio Webster v The Attorney General of Trinidad and Tobago 14, where he opined: The advocate was correct to submit that, were the appellant to secure an award reflective of breaches of his constitutional rights, the appellant needed a finding that they had been broken. But the advocate was also correct to submit that a declaration to such effect would be alternative to such a finding that there would be no additional need for it. CLAIMANT S REPLY [17] The Claimant sought and was granted leave to reply to the Second, Third and Fourth-named Defendants submissions. The Claimant filed her Reply on the 3 rd August, 2012 and argued that the assertion by the Defendants that her claim has a parallel remedy in tort ignores the Claimant s declaratory reliefs for which a claim for damages for false imprisonment, assault and trespass are not parallel remedies. [18] In answer to the Defendant s contention that the facts of the case are disputed, Counsel for the Claimant argued, to the contrary, that most of the facts in this matter are not in dispute; significantly the Defendants do not dispute the facts upon which the Claimant bases her claim for constitutional relief. He argued 14 Op. cit. para. 20 Page 9 of 16

10 that the only outstanding issues to be determined are legal in nature e.g. whether the Police Officers acted legally in detaining the Claimant and whether the Police Officers were empowered to search the handbag and/or person of the Claimant. [19] In further answer to the Defendants argument that the Claimant does not satisfy the test in Antonio Webster v The Attorney General of Trinidad and Tobago and The Attorney General of Trinidad and Tobago v Siewchand Ramanoop, Counsel submitted that the actions of the Police Officers in this case were just as oppressive and grave as the above cited cases. He went on to argue that it was a shameful misuse of the coercive powers bestowed upon police officers to conduct a body and cavity search of a woman in circumstances that did not warrant such action. [20] Counsel submitted that given the invasiveness and illegality of the search, coupled with her unlawful detention, as well as trauma caused to the Claimant by the entire incident, the Court ought properly to regard these circumstances as quite appalling sufficient to constitute exceptional circumstances as that recognized in The Attorney General of Trinidad and Tobago v Siewchand Ramanoop. [21] In conclusion, Counsel reminded the Court that these proceedings are still at the stage where it has the discretion under PART 56.9(2)(b) of the CPR to give directions for the further conduct of these proceedings. Page 10 of 16

11 ANALYSIS ABUSE OF COURT PROCESS [22] I will deal firstly with the issue of whether the form of the Claimant s claim is an abuse of process. In Antonio Webster v The Attorney General of Trinidad and Tobago 15, the Court of Appeal dealt with the issue of mixed claims, i.e., constitutional relief claimed in civil actions. With regard to a claim form which raises constitutional issues, Jamadar JA opined: this does not necessarily mean that a claim made by Claim Form which raises constitutional issues is an abuse of process or a nullity. This is because pursuant to Part 56.6(1), CPR, 1998, where an action brought by Claim Form discloses facts which can support a claim for constitutional relief, the court may give such directions as are necessary for the action to proceed under PART 56 What the CPR, 1998 contemplates is that where the only or main relief disclosed in an action brought by Claim Form is for an administrative order (which includes constitutional relief), then such an action should be directed to proceed under Part 56. [23] From a review of the Claimant s Amended Fixed Date Claim Form and Statement of Case, it is evident that the majority of the reliefs sought against the Second, Third and Fourth-named Defendants are Administrative Orders; only two of the claims are in tort for damages for false imprisonment, assault 15 Civ. App. No. 113 of 2009, paras. 16, 18 Page 11 of 16

12 and trespass to the person. The claims in tort are also being sought against the First-named Defendant Republic Bank Limited. [24] On this point, I had regard to PART 8.4 of the CPR which provides: A claimant may make claim which includes all, or any, other claims which can be conveniently disposed of in the same proceedings. In addition, PART 56.9(1) of the CPR provides: The general rule is that, where permitted by the substantive law, the applicant may include a claim for any other relief or remedy that arises out of or is related or connected to the subject matter of an application for administrative order. Accordingly, the Court is empowered by PART 56.9(2)(b) of the CPR to give directions as to how to proceed with such as claim. This Part provides: The court may, however, at any stage (in a matter commenced pursuant to Part 56, by Fixed Date Claim Form direct the whole of the application to be dealt with as a claim and give appropriate directions under Parts 26 and 27. See the dicta of Jamadar JA in Antonio Webster v The Attorney General of Trinidad and Tobago Para. 24 Page 12 of 16

13 [25] I also had regard to the authority of The Attorney General of Trinidad and Tobago v Siewchand Ramanoop 17, where Lord Nicholls of Birkenhead opined: An originating motion is a summary procedure. Save in the simplest of cases it is ill-suited to decide substantial factual disputes. Satisfactory resolution of such disputes usually requires pleadings, discovery and oral evidence. [26] Further, it would not be in keeping with the overriding objective and the interest of justice to cause the Claimant to make separate claims for constitutional and tortious relief which both emanate from the same set of facts and which can be expeditiously determined in the same claim. As stated by Sharma CJ in Damien Belafonte v The Attorney General of Trinidad and Tobago 18 : It would not be fair, convenient or conducive to the proper administration of justice to require an applicant to abandon his constitutional remedy or to file separate actions for the vindication of his rights. [27] Further, from a review of the pleadings, it is evident that while some facts in this matter remain in dispute, those upon which the Claimant bases her claim for constitutional relief are not disputed. In the circumstances, this falls within the principle as enunciated by Lord Hope of Craighead in Thakur Persad Jaroo v The Attorney General of Trinidad and Tobago that: 17 Op. cit., para Civ. App. No. 84 of 2004 Page 13 of 16

14 Their Lordships wish to emphasize that the originating motion procedure under section 14(1) is appropriate for use in cases where the facts are not in dispute and questions of law only are in issue. It is wholly unsuitable in cases which depend for their decision and resolution of dispute of facts. 19 [28] In conclusion, I hold that: i. This is a mixed claim by the Claimant seeking both constitutional and common law reliefs; ii. iii. The institution of these proceedings by way of Fixed Date Claim Form is permitted under PART 8.1(4)(d) of the CPR and is therefore not an error of procedure; and, Pursuant to my Case Management powers under PART 56.9(2)(b)of the CPR, I can and do direct that the matter be proceeded with as a claim. EXCEPTIONAL CIRCUMSTANCES [29] I now turn to the issue of whether the circumstances of this case are exceptional, thereby giving the Claimant the right to apply to the High Court for redress under SECTION 14(1) of the CONSTITUTION. [30] In Harrikissoon v Attorney General of Trinidad and Tobago 20, Lord Diplock observed that an allegation of an infringement of a human right or a fundamental freedom does not of itself entitle a claimant to invoke the SECTION 14(1) procedure if it is apparent that the allegation(s) is(are) for the 19 Op. cit., para [1980] AC 265, 268 Page 14 of 16

15 sole purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy which involves no contravention of any human right or fundamental freedom. Further, in The Attorney General of Trinidad and Tobago v Siewchand Ramanoop 21, Lord Nicholls of Birkenhead opined: As a general rule there must be some feature, which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a misuse, or abuse, of the court s process. A typical example of a special feature would be a case where there has been an arbitrary use of state power. [31] In this case the Claimant alleged against these Defendants that without a warrant or any other lawful authority: i. They detained her at the bank for several hours; ii. iii. During said detention they forced her to strip and conducted a search of her person and belongings; and, At no time before such detention and search was she advised of her right to an Attorney nor was she permitted to contact her Attorney. [32] On this issue, I uphold the argument advanced by Counsel for the Claimant that the allegations made by her against the Defendants are quite appalling and constitute an arbitrary use of state power. This is sufficient to case this case to fall within the exceptional circumstances as described in Antonio Webster v The Attorney General of Trinidad and Tobago and The Attorney General of Trinidad and Tobago v Siewchand Ramanoop. 21 Op. cit. para. 25 Page 15 of 16

16 CONCLUSION [32] In the circumstances, I make the following orders: i. The Application of the Second, Third and Fourth-named Defendants filed on the 12 th March, 2012 is dismissed; ii. The Second, Third and Fourth-named Defendants to pay the Claimant s costs of this Application to be assessed in default of agreement by the Registrar. JOAN CHARLES JUDGE Page 16 of 16