Rosalyn Brown v Cotswold Group Ltd
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 25 November 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2018/CLE/GEN/01042 |
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BS 2022 SC 144
The Hon. Madam Justice G. Diane Stewart
2018/CLE/GEN/01042
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
Mr. Michael Scott K.C. for the Plaintiff
Mr. Roger Forde Q.C. and Mr. Byron Woodside for the Defendants
By Summons filed 12 th February 2021, the Plaintiff, Rosalyn Brown (the “Plaintiff”) seeks inter alia summary judgment against the Defendants, Cotswoid Group Holdings Limited (the “Defendants”) pursuant to Order 14 (1) of the Rules of the Supreme Court (the “Summary Judgment Application”). This application was the third application made in the summons. The other two applications were previously determined by this Court.
Subsequent to the filing of this summons and before the summary judgment application was heard, the Plaintiff applied to amend her writ to remove Cotswold Group Holdings as the First Defendant and add them as the Fourth Defendant. This application was granted
The Summary Judgment Application is supported by the Second Affidavit of Rosalyn Brown filed 19 th February 2021 (the “Second Affidavit”). By the Second Affidavit, the Plaintiff avers, inter alia, that the Fourth Defendant had no defence to her claim except for the amount of the compensation owed to her. On 15 th June 2018, the legitimacy of her claim was acknowledged by Mr. Roger Forde Q.C., a Barbadian legal practitioner in a letter to her former Counsel (the 15 th June 2018 Letter”).
By the 15 th June 2018 Letter, he stated at para. 4:-
“ I am instructed by my client that Cotswold Group Holdings Limited and its subsidiaries entered into an agreement with your client whereby your client agreed to refer to my client persons or entities who are desirous of entering into a business with my client and in consideration hereof your client would be paid a commission in the even that (a) those persons or entities who she referred to my client thereafter entered into a business relationship with my client and (b) the sole efforts of your client caused those persons or entities to enter into the business relationship with my client. The agreement also provided that the commission would be paid over the period of the business relationship and that in the event persons were referred to my client and entered into a business relationship as a result of the effort of your client and some other person, then the commission would be shred……I am also instructed by my client that it has made payments to your client in pursuance of the terms of the said agreement. I attach hereto a schedule of payments made to your client”.
The 15 th June 2018 Letter was in response to her pre-action letter dated 8 th June 2018. The Plaintiff was advised by the Insurance Commission and was made to believe that there was no legal requirement under the External Insurance Act, No. 15 of 2009 (“The Act”), for an individual or a natural person to be registered. Section 4 (2) of the said Act restricted licensing to corporate entities.
The Plaintiff was mortified by the implied accusation that she was not registered when she was not required to be while they had not admitted to their own negligence for failure to register under the Act. She referred to the sixth paragraph of her affidavit filed 7 th December 2020 where she stated that on 22 nd July 2020 she made enquiries of the office of the Registrar of External Insurance, who confirmed that she was not required to be licensed and observed that none of the Defendants nor any company in the Cotswold Group of Companies were registered by the Insurance Commission. She submitted that The Cotswold Group of Companies consequently were in breach of the law.
The Plaintiff's action against the Defendants is by way of its Re-Amended Writ of Summons and Statement of Claim filed 21 st January 2022, where she seeks damages for breach of contract and an accounting of all referrals of clients for insurance business to the First Defendant and the Second Defendant by and through the agency of the Plaintiff. The Plaintiff had agreed with Cotswold Group Insurance Limited through a Commission Agreement dated 1 st February 2012 to be their non-exclusive agent to market their insurance products and services to the public and also through a Commission Agreement dated 1 st April 2014 with Cotswold Group Holdings Limited (collectively referred to as the “Commission Agreements”). It was an express term of the Commission Agreements that the Fourth Defendant and Subsidiaries as Contractor would pay the Plaintiff a commission to be calculated at specific rates and formulae.
The Defendants by the Commission Agreements would be required to account to the Plaintiff, at regular intervals, the acceptance of client referrals and settle any commission which stemmed from that acceptance. The Plaintiff also worked with the Second Defendant who assisted with KYC requirements. The Third Defendant, a Barbados incorporated company, was the vehicle deployed as the issuer of the relevant insurance policies and was used for reasons of fiscal efficiency and to take advantage of double taxation treaties in the global market.
By their respective defences the First Defendant and Fourth Defendant denied entering into any agreement with the Plaintiff for the payment of commission or at all. They further denied that they had authorized any other entity to do so. However, in the event that they did, the Plaintiff had represented that she was compliant with the Act, she did not introduce the clients as alleged and she did not meet all of her obligations under any purported agreement. They further denied that the Third Defendant was its servant, agent or principal.
The Plaintiff relies on Order 14 rule 1 of the Rules of the Supreme Court (the “RSC”) which states:-
“Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.”
In Anglo-Italian Bank v Wells (1878) 38 L.T. 197 p. 201 CA, Jessel M.R. states:-
“When the Judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant it is his duty to give judgment for the plaintiff”.
The existence of a fairly arguable point does not include a desire to investigate alleged obscurities and a hope that something will turn up, when defending an application for summary judgment. In HRH The Dutchess of Sussex and Associated Newspaper Limited [2021] EWHC 273, Warby J found that while efficiency of the administration of justice is not a ground for entering summary judgment without a trial, even if it enables a huge savings of time and costs, equally, at the other end of the spectrum, the court must be astute to a defendant who seeks to make a case look more complicated and difficult than it really is so as to obscure the fact that there is really no defense to the claim.
In the First Defendant's Re-Amended Defence and Counterclaim filed 14 th December 2020, a series of contradictory denials were provided which the Plaintiff submits do not amount to a defence. In one paragraph it denies entering into an agreement with the Plaintiff for payment of commission nor did it give any authorization to do so. In another paragraph it claims that if it did enter into an agreement with the Plaintiff, the Plaintiff did not uphold her end of the bargain by complying with the Act or by introducing the clients.
In its Counterclaim, the First Defendant alleges that if it did enter into an agreement with the Plaintiff, the First Defendant was induced to enter into it by the Plaintiff's representation that she could lawfully perform her duties. The aforesaid assertions do not amount to a bona fide defence to the Plaintiff's claim.
It was a fact that the Plaintiff, by an agreement dated 1 st April 2014, entered into a commission agreement with Cotswold Group Holdings Limited, the Fourth Defendant. It was irrelevant whether it received authorization from the First Defendant or anyone else to do so. There was no legal requirement under the External Insurance Act for an individual or natural person to be registered. Section 4 (2) expressly restricts licencing to corporate entities. Therefore, the First Defendant's Counterclaim was bound to fail.
The First Defendant is disingenuous or confused in its pleading. In its amended defence dated 14 th September 2020, it admitted that the Fourth Defendant entered into the agreement by which the Plaintiff carried out the required performance. The only triable issue was in relation to quantum of damages.
As directed by the Court, the Plaintiff submits that the use of separate company nomenclatures was ultimately irrelevant as it was plain from the context of the action that ail corporate emanations bearing the name “Cotswold” acted as one and the same. Both the 1 st February 2012 and the 1 st April 2014 agreements expressed that the “Cotswold”...
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