Dorothy Bain v Royal Bank of Canada (Bahamas) Ltd
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Andrew Forbes |
| Judgment Date | 10 November 2023 |
| Court | Supreme Court (Bahamas) |
| Year | 2023 |
| Docket Number | 2014/CLE/GEN/FP/00283 |
The Honourable Mr. Justice Andrew Forbes
2014/CLE/GEN/FP/00283
IN THE SUPREME COURT
Civil Division
Ms. Edwina Waldron on behalf of the Plaintiff
Ms. Karen Brown & Ms. Tashana Wilson on behalf of the Defendant.
The plaintiff had filed its special endorsed Writ of Summons on the 25th August 2014 and claimed inter alia that the defendant was a Banker and carried on the business of Banking at their branch in the City of Freeport, Grand Bahama and elsewhere. That all material times the plaintiff together with her late husband Dencil Bain were customers of the defendant and operate a loan account being 3312170 or account number 7075625. That on or about 23 rd June 2009 a person or person having access to the plaintiff's account forged a promissory demand loan application in the amount of Five Thousand Dollars ($5,000.00) in the names of the plaintiff and her late husband Dencil Bain jointly and that the bank processed and granted the loan. That on or about 25 th June 2009 and on or about the 2 nd July 2009 the defendants wrongfully and without the plaintiff's authority paid out monies from the said loan dated 23 rd June 2009 in the amount of Three Thousand Dollars ($3,000.00) and Two Thousand and Ten Dollars ($2,010.00) respectively. That Dencil Bain died on the 11 th July 2010. That the plaintiff nor her late husband did not make application for a loan for Five Thousand Dollars ($5,000.00) on or about the 23 rd June 2009 nor did they receive the proceeds of the said loan or authorized the drawing thereof and that the signatures of the Plaintiff and her late husband are forged by some person unknown. In the premises the defendants had no authority to pay out proceeds of the said loan and the plaintiff has been injured in her credit and reputation. The plaintiff seeks a declaration that the defendants have wrongfully and were not entitled to debit the plaintiff's account with the amount of the loan of the 23 rd June 2009. The plaintiff further claims the sum of Five Thousand Dollars ($5,000.00), the reversal and credit to the plaintiff of the interest charges of expenses in connection with the said loan, interest, costs and damages.
The Defendant having filed a Memorandum and Notice of Appearance on the 14 th August 2014 filed its defence on the 4 th April 2017 which states inter alia that the defendant admits paragraph 1 of specially endorsed Writ of summons filed on 25 th August 2014. That at paragraph 2 the defendant admits that the plaintiff and Dencil Bain were customers of the loan account number 3312170 and a savings account number 7075625. The defendant avers that on or about the 23 rd June 2009 the defendant advanced a principal sum of Five Thousand Dollars ($5,000.00) to the plaintiff and the said Dencil Bain by way of a loan such sum to be repaid together with interest thereon at the defendants loan base rate of 11% plus 2 Vi% per annum. The promissory note was signed by both the plaintiff and the said Dencil Bain. The defendant further avers that on or about the 25 th June 2009 the loan proceeds in the sum of Five Thousand Dollars ($5,000.00) were credited to the plaintiff's savings account. The defendant therefore denies paragraph 3 and puts the plaintiff to strict proof of the forgery alleged. As to paragraph 4 the defendant avers that on the 25 th June 2009 the plaintiff withdrew the sum of Three Thousand Dollars ($3,000.00) from the plaintiffs saving account. The receipt of transaction in respect of this withdrawal was signed by the plaintiff. On or about the 2 nd July 2009 the plaintiffs savings account was debited in the sum of Two Thousand Dollars ($2,000.00) in respect of purchase by the plaintiff of currency of the United States of America. Thereafter on the 6 th July 2009 and 7 th July 2009, withdrawals were made from the plaintiffs savings account at the automatic bank machines in the State of Florida, one of the United States of America. Save as aforesaid the defendant denies paragraph 4. The defendant admits paragraph 5. The defendant denies paragraph 6 and 7 and refers to and repeats paragraphs 4, 5 & 6 above. Further, the plaintiff is put to strict proof of the injury claimed in paragraph 7. And save as herein before expressly admitted the Defendant denies each and every allegation of fact contained in paragraphs 6 through 7 of the Statement of Claim indorsed on the Writ of Summons as if the same were set forth herein and specifically traversed.
The plaintiff although represented by Counsel on diverse occasions appeared to have filed documents on her own without reference to her representations. Once such instance was the Plaintiff self-filed an Affidavit on the 12 th June 2018 in which she had exhibited the Forensic Report commissioned by her Attorney at the time with reference to the allegations of potential fraud and forgery which was being alleged. The Court will speak to this Report at a much later stage at this decision.
That the Plaintiff would have again applied for case management notwithstanding being represented by Counsel. The Court invited the Plaintiff and Counsel for the Defendant to attend Court and sought to make inquires of the Plaintiff about her Attorney. The Plaintiff advised that she had discontinued this representation, although the Court noted the documents didn't support this assertion. The Court invited the Plaintiff to reconsider attempting to represent herself and invited her to retain Counsel to advise and assist her. The matter was then adjourned to allow the Plaintiff to obtain Counsel. At the next sitting the Plaintiff appeared with current Counsel who represented that it was her intention to make adjustments to the Writ. As a consequence the Court granted leave for the Application to be filed.
That Plaintiff's Counsel then actually filed an amended Writ of Summons on the 12 th October 2023 notwithstanding the application of the Civil Procedure Rules (CPR) and its applicability to the current matter. However, while at the hearing of the Application admitted the error and indicated that there was no intention to move forward with the Writ of Summons so filed. Shortly thereafter Plaintiff's Counsel then filed a Notice of Application on the 16 th October 2023 seeking leave to Amend and an Affidavit in Support sworn by the Plaintiff and exhibiting the intended amendments marked in red filed also on the 16 th October 2023. The defendant likewise filed on the 23 rd October 2023 an Application seeking to strike the Plaintiff's entire action alleging that it disclosed no cause of action. This was likewise filed with an Affidavit in support sworn by Jennifer Styles and filed on the 25 th October 2023. The Defendant's Counsel also objected to the Application being perused by the plaintiff also the Defendant sought Summary Judgement although the Court noted that the Defendant had not filed a counterclaim or setoff. The claimant/plaintiff filed on the 3 rd November 2023 an affidavit in response to the affidavit of Ms. Styles.
That the parties appeared before the Court and the Court observed that both the Plaintiff and Defendant Counsel had filed and laid over Skeleton Arguments in support of their respective applications. The Court noted that the Plaintiff's arguments failed to address the defendant application at all. In an effort to get full arguments the Court invited the Plaintiff's Counsel to provide supplemental arguments and if the Defendant Counsel felt it was necessary. The Court would note that at the deadline given by the Court Counsel Claimant filed additional arguments on the 14 th November 2023 and the Defendant likewise filed supplement arguments on the 16 th November 2023. The Court wishes to take this opportunity to thank both Counsel for their assistance. The Court had indicated an intention to provide its decision on the applications and does so now.
The Court notes that the following provisions of the CPR accounts for the current applications filed by the Plaintiff and the Defendant respectively. The Plaintiff/claimant would be required to make an Application pursuant to Part 20.2 which reads: “20.2 Changes to statements of case after end of relevant limitation period. (1) This rule applies to a change in a statement of case after the end of a relevant limitation period. (2) The Court may allow an amendment the effect of which will be to add or substitute a new claim but only if the new claim arises out of the same or substantially the same facts as a claim in respect of which the party wishing to change the statement of case has already claimed a remedy in the proceedings. (3) The Court may allow an amendment to correct a mistake as to the name of a party but only where the mistake was — (a) genuine; and (b) not one which would in all the circumstances cause reasonable doubt as to the identity of the party in question. (4) The Court may allow an amendment to alter the capacity in which a party claims.” This Rule is similar in its application to the Rule of the Supreme Court (RSC) found in Order 20 Rule 5(1) of the RSC. The Defendant likewise made an application pursuant Part 26.4 of the CPR which reads: “26.4 Court's general power to strike out statement of case. (1) If a party has failed to comply with any of these rules or any Court order in respect of which no sanction for non-compliance has been imposed, any other party may apply to the Court for an “unless order”. (2) Such an application may be made without notice but must be supported by 169 evidence on affidavit which — (a) contains a certificate that the other party is in default; (b) identifies the rule or order which has not been complied with; and (c) states the nature of the breach. (3) The judge or registrar may — (a) grant the application; (b) direct that an appointment be fixed...
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