Rosalyn Brown v Cotswold Group Ltd

• Jurisdiction: Bahamas
• Judge: Mr. Justice Keith H. Thompson
• Judgment Date: 25 October 2019
• Date: 25 October 2019
• Docket Number: 2018/CLE/GEN/01042
• Court: Supreme Court (Bahamas)

IN THE SUPREME COURT

COMMON LAW & EQUITY DIVISION

Before:

THE HONOURABLE Mr. Justice Keith H. Thompson

2018/CLE/GEN/01042

Between:

Rosalyn Brown

Plaintiff

and

Cotswold Group Limited (also Known As Costworld Group Holdings Limited

First Defendant

Cotswold Corporate Services Limited

Second Defendant

Cotswold Insurance (Barbados) Limited

Third Defendant

Appearances:

Mr. Michael Scott of Counsel for the Plaintiff and

Mr. Byron Woodside of Counsel for the Defendants.

RULING

1 This is an application made by the Defendants by way of Summons filed 10 ^th October, 2019 supported by an Affidavit of Engrid Bodie, filed on 21 ^st October, 2019.

2 The Summons seeks to strikeout the Plaintiffs Writ of Summons and Statement of Claim on the following grounds -

• (i) It discloses no reasonable cause of action in that the agreement upon which the Plaintiff relies does not provide for joint and several liability and;

• (ii) It is otherwise an abuse of the process of the Court in that the agreement upon which the Plaintiff relies specifically provides that it is governed by the Laws of Barbados and that the place of jurisdiction of all proceeding in connection with the said agreement shall be Barbados.

FACTUAL MATRIX:

3 A written agreement (Commission Agreement) was entered into with the First Defendant by the Plaintiff wherein the First Defendant appointed the Plaintiff as its non-exclusive agent to promote and market insurance products and services to the public. It is the further agreement of the Defendants that the Plaintiff relies on the commission agreement for its meaning and effect.

4 It was also a term of the commission agreement that the First Defendant would pay the Plaintiff commissions pursuant to the commission agreement, once the Plaintiff would have solicited clients and introduce them to the First Defendant.

5 The Plaintiff alleges that the Third Defendant was a vehicle through which the group of Defendants or the First Defendant was the insurer of the clients introduced pursuant to the commission agreement. The Plaintiff therefore alleges that the Defendants have breached the terms of the commission agreement by failing to supply the Plaintiff with statements of commissions on referrals.

ALLEGATIONS OF THE DEFENDANTS:

• 2. “The said Statement of Claim does not properly identify the parties. Indeed, the Statement of Claim does not state whether the First Defendant which is described as Cotswold Group Limited also known as Cotswold Group Holdings Limited which is also known as Cotswold Group Holdings Limited. The heading of a suit is not a pleading and as such the Claimant was obliged to properly identify the claim. The Claimant was also obliged to state in its Statement of Claim whether the First Defendant was registered in this jurisdiction or in any other jurisdiction. The naming of a Defendant in the heading of an action is not a proper plea as to the identity of the Defendant In the event that the companies named in the heading of the suit the Plaintiff was obliged to go further and make a specific plea in this regard. Unfortunately, the information in the Corporate Registry would not support such a plea. Further, the Statement of Claim does not state whether the Second and Third Defendants are companies or other legal entities registered in the jurisdiction and carries on business in the jurisdiction.

• 3. Subsequent to the filing of the said Writ of Summons, the Claimant disclosed to the First Defendant the Commission Agreement which is mentioned in paragraph 1 of the Statement of Claim. The said agreement is exhibited to the Affidavit of Engrid Bodie filed herein on October 16, 2018 and forms part of the Statement of Claim.

  dismissed or judgment to be entered accordingly, as the case may be.”

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

  • (3) This rule shall, so far as applicable, applying to an Originating Summons and a petition as if the Summons or Petition, as the case may be, were a pleading.”

8 The first Defendant in this regard relies in the first instance on the case of WILLIAM and HUMBERTS LTD V WARD H TRADE MARKS (JERSEY) LTD [1986] AC 368, HL from which emanates the principle that the power to strike out a pleading is to be exercised only in “plain and obvious” cases. In this case LORD TEMPLEMAN said:-

“Two courses are open to a defendant who wishes to raise the question whether, assuming a statement of claim to be proved, it entitles the plaintiff to relief. One method is to raise the question of law as directed by Ord. xxv. R. 2; the other is to apply to strike out the statement of claim under Ord. xxv, r. 4. The first method is appropriate to cases requiring argument and careful consideration. The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks.”

The observations of Lindley M.R. directed to striking out a statement of claim apply equally to applications to strike out a defence or part of a defence.

There has been recently a difference of judicial approach to the construction of Ord. 18, r. 19. In McKay v. Essex Area Health Authority (1982) Q.B. 1166, the majority of the Court of Appeal (Stephenson and Ackner L. JJ.) cited with approval the observations of Sir Gordon Wilmer in Drummond-Jackson v. British Medical Association [1970] 1 W.L.R. 688, 700 where he said;

“The question whether a point is plain and obvious does not depend upon the length of time it takes to argue. Rather the question is whether, when the point has been argued, it has become plain and obvious that there can be but one result”

On the other hand, Griffiths L.J. dissented on the point in McKay v. Essex Area Health Authority [1982] Q.B. 1166 and said, at p. 1191;

“If on an application to strike out as disclosing no cause of action a judge realises that he cannot brush aside the argument and can only decide the question after a prolonged and serious legal argument he should refuse to embark upon that argument and should dismiss the application unless there is a real benefit to the parties in determining the point at that stage. For example, where striking out the cause of action will put an end to the litigation a judge may well be disposed to embark on a substantial hearing because of the possibility of finally disposing of the action. But even in such a case the judge must be on his guard that the facts as they emerge at the trial may not make it easier to resolve the legal question.

If an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed.”

9 It is trite law that a cause of action is defined as simply a factual state of affairs, the existence of which entitles one person to obtain a remedy (ies) from a Court against another person. (See LETANG V COOPER [1961] EWCA CIV J0615–2). A cause of action ought to have some chance of success when one looks at the allegations in the pleadings alone.

10 The First Defendant says that the Writ of Summons and the Statement of Claim disclose no cause of action against the First Defendant in that the First Defendant has not been properly identified in the Statement of Claim. The First Defendant says;

No reasonable cause of action:

• “10. The First Defendant submits that the Writ of Summons and Statement of Claim disclose no cause of action against it for the First Defendant has not been properly identified in the Statement of Claim. In order to found a cause of action it is first necessary to properly identify the parties seeking the relief and the party against whom the relief is being sought See paragraph 8 hereof. The Statement of Claim does not state whether the First Defendant is a legal entity which carries on business in the Bahamas. The names attributed to the First Defendant suggests that the Plaintiff is referring to companies, but the pleading falls short in this regard. The pleading cannot be supplemented by Affidavit evidence. See Order 18 Rule 19 (2) as set out in paragraph 5 above. Further, the Statement of Claim and the Commission Agreement which is referred to in the said Statement of Claim speaks of Cotswold Group Holdings Limited and subsidiaries. The Agreement does not state that Cotswold Group Limited and Cotswold Group Holdings Limited are one in the same. In addition, the Agreement does not identify the subsidiaries or whether the liability of Cotswold Group Holdings Limited or subsidiaries is joint and several. Accordingly, the Claimant has not established a cause of action against the First Defendant in that the First Defendant has not been properly identified in the pleading or the contract The Court is invited to note that the pleading speaks of a written agreement but the Commission Agreement which the Plaintiff disclosed as the agreement mentioned in paragraph 1 of the Statement of Claim was not signed by the First Defendant There can be no cause of action relative to a written agreement which has not been signed. It is possible that a cause of action based on conduct can be established on an unsigned agreement but no such cause of action has been pleaded.

  ABUSE OF THE PROCESS OF THE COURT:

• 11. The First Defendant submits that the commencement of these proceedings is an abuse of the process of the Court and as such should be struck out

• 12. The Agreement which is referred to in paragraph 1 of the Statement of Claim and which has been disclosed to the First Defendant clearly states that the place of jurisdiction shall be Barbados. In the circumstances, it is an abuse of the process of the Court to found an action on an agreement which specifically provides that the place of jurisdiction is not in the Bahamas.

• 13. In respect of the exclusive...