Moree et Al v The Imperial Life Assurance Company of Canada

• Jurisdiction: Bahamas
• Judge: Sawyer, C.J.
• Judgment Date: 27 March 1998
• Court: Supreme Court (Bahamas)
• Docket Number: No. 1003 of 1996
• Date: 27 March 1998

Supreme Court

Sawyer, C.J.

No. 1003 of 1996

Moree et al

and

The Imperial Life Assurance Company of Canada

Appearances:

Mr. R. Rigby for the plaintiffs.

Mrs. G. Diane Stewart for the defendants.

Practice and procedure - Appeal from decision of the Deputy Registrar in which he ordered the plaintiff's action to be struck down under Order 18 rule 19 of the R.S.C. on the ground that the cause of action accrued more than six years before the writ of summons which began the action was filed — Plaintiff's action stood dismissed — Appeal allowed.

Sawyer, C.J.

1 This is an appeal from the decision of the learned Deputy Registrar given on 3rd October, 1997, in which he ordered the plaintiffs' action to be struck out under Order 18, rule 19 of the Rules of the Supreme Court, 1978 (“RSC”) on the ground that the cause of action accrued more than six years before the writ of summons which began this action was filed.

2 That decision was made in the absence of counsel for the plaintiffs while I have had the benefit of argument by counsel on both sides.

3 In order for this decision to be comprehensible I set out the factual background to the arguments before me in some detail.

4 Counsel for the plaintiffs issued a writ of summons on September 27, 1996. By the indorsement on that writ the plaintiffs seek a declaration that the plaintiffs are entitled to an accidental benefit as beneficiaries under a contract of insurance made between Donald Alfred Moree Snr. and the defendant company (“the defendant”), cost and interest.

5 The statement of claim which was filed January 23, 1997, does not contain any claim for a declaration but counsel for the defendant has made no submission on the departure of the plaintiffs from their pleading. It reads:

• “1. By a Contract of Insurance made between Donald Alfred Moree Jr. Deceased issued by the defendant, policy number 109713, the defendant promised to pay to the beneficiary of the late Donald Alfred Moree a sum of money upon his death which sum was calculated as a death benefit and an additional benefit where the death was accidental. The first named plaintiff is the beneficiary pursuant to the terms of the contract of insurance; the second named plaintiff is the heir-at-law to the estate of the deceased;

• 2. By Letters of Administration issued to the first-named plaintiff dated 27th July, 1990, the Supreme Court on its Probate Side (No. 337 of 1990) declared that Donald Alfred Moree was presumed dead on 9 day of March, 1983, having gone missing on an aircraft journey;

• 3. The first named plaintiff asserted a claim pursuant to the terms of the said Contract of Insurance and the defendant paid the death benefit but not the accidental death benefit;

• 4. Notwithstanding the demands of the first named plaintiff, the defendant has refused to pay the accidental death benefit in breach of the Contract of Insurance, and has caused loss and damage.

PARTICULARS OF LOSS

1

Accidental death benefit; 2. Interest on the benefit.

AND THE PLAINTIFFS CLAIM:

1

Loss and Damage as per paragraph 4 of the Statement of Claim 2. Interest 3. Costs.”

6 On February 10, 1997, a defence was filed on behalf of the defendants which reads:

• “1. The plaintiffs cause of action did not accrue within six (6) years before the commencement of this action and the defendant will rely on the relevant provisions of the Limitation Act, 1995.

• 2. Save that the defendant issued a policy of insurance to Donald A. Moree Sr., deceased, being policy number 1097130, the defendant admits the first sentence of paragraph one (1) of the Statement of Claim. The defendant denies that the first named plaintiff is the beneficiary under the said contract of insurance and avers that the Estate of the deceased was the beneficiary of the same.

• 3. Save that the Supreme Court in its Grant of Letters of Administration declared that Donald Alfred Moree was presumed dead having gone missing on an aircraft journey, the defendant admits Paragraph two (2) of the Statement of Claim. The said Grant stated that the said deceased was presumed to have died on the 9th day of March, 1983 in waters on his way to Exuma, Bahamas.

• 4. Save that the defendant paid the Death Benefit to the Administratrix of the Estate of the deceased, the defendant admits Paragraph three (3) of the Statement of Claim.

• 5. The defendant admits Paragraph four (4) of the Statement of Claim and avers that the same is not pay able in the circumstances of this case. The defendant having paid all monies due under and in accordance with the policy has complied with all the terms of the policy.

• 6. Save as hereinbefore specifically admitted the defendant denies each and every allegation of fact contained in the Statement of Claim as if the same were set forth herein and traversed seriatim.”

7 No further pleadings were filed and summons for directions was filed May 23, 1997, seeking the usual orders as to the further conduct of the action.

8 By a summons filed July 11, 1997, the defendant sought the following:

“…an Order that;

the Writ of Summons served on the defendant in the above entitled Action be struck out pursuant to Order 18, rule 19 of the Rules of the Supreme Court on the ground that it discloses no reasonable cause of action such action or cause of action having been barred by the Limitation Act, 1995. 2. Alternatively, for the court to determine by way of preliminary issue whether or not the above entitled action is barred by the Limitation Act, 1995. 3. In the further alternative a declaration that the plaintiffs are not proper parties to this action and an order be made striking out the plaintiffs as parties to this action.

1 AND that the costs of this application be borne and paid by the plaintiffs in any event.”

9 A notice of hearing filed August 6, 1997, stated that both the summons for directions and the summons filed 11th July, 1997, were set for hearing before the Deputy Registrar for the 26th August, 1997 at 10.30 a.m. It appears that on that date, when counsel for both parties appeared, counsel for the plaintiffs requested and was granted an adjournment to 3rd October, 1997, the date on which the decision, now under appeal, way made.

10 It is accepted that on the hearing of such an appeal, the court will give due consideration to the reasoning of the Registrar but that the appeal is, in effect, a rearing of the application.

11 There is not much dispute about the factual background to this matter as will be seen from the pleadings set out above.

12 The first order which the defendants seek is based on the ground that the writ and statement of claim disclose no reasonable cause of action; on the hearing of such an application, no evidence is normally permitted and the court is confined to a consideration of the pleading as it stands. Order 18, rule 19 (1)(a) and (2) RSC read:

• “19. -(1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

  • (a) it discloses no reasonable cause of action or defence, as the case may be; or

  • (2) No evidence shall be admissible on an application under paragraph (1)(a).”

13 However, in the case of Re Caines, Knapman v. Servian [1978] 2 All E.R. 1, it was held that affidavits used before the Master without objection cannot be excluded before the judge. In this case, there are two affidavits sworn by the first-named plaintiff and filed on the 22nd and 25th August, 1997, respectively, that is, prior to the hearing before the Deputy Registrar and no objection was taken by defence counsel when counsel for the plaintiffs referred to those affidavits. I therefore had regard to those affidavits in considering whether the plaintiffs' pleading disclosed a reasonable cause of action.

14 According to Lord Pearson in Drummond-Jackson v. British Medical Association [1970) 1 All E.R. 1094, a reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered. On the other hand, the practice over the years has been that so long as a statement of claim discloses some cause of action, or raises some question fit to be tried by a judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out - see e. g., Wenlock v. Moloney [1965] 2 All E.R. 871.

15 If one looks at the statement of claim alone in this case, one could not, without more, say that it discloses no reasonable cause of action - see e. g., Ronex Properties limited v. John Laing Construction Ltd. [1983] Q.B. 398. However, it is clear from the defence, that the defendants intend to rely on the limitation defence. In those circumstances the court is required to consider whether there is anything before the court to suggest that the plaintiffs could escape from the limitation defence.

16 Counsel for the plaintiffs submits that the cause of action is not statute-barred because time did not begin to run against them until there was a breach of the contract of insurance by the refusal of the defendants to pay the additional benefit (i.e., either 28th September, 1990 or 24th June, 1996) and he relies on the contents of a letter dated September 28, 1990, under cover of which, the Director of Administration/Training of the defendants, sent a cheque in the sum of $157,581.72 representing payment of the life insurance claim by the first-named plaintiff on behalf of the deceased's Estate after deducting an amount which was due to the defendants from the deceased. In that letter, the Director of Administration/Training of the defendants, included the following statement:

“…Payment of the accidental death benefit is being withheld pending information surrounding the circumstances of the accident, police report, newspaper...