Roscoe Thompson v The Attorney General of The Commonwealth of The Bahamas

• Jurisdiction: Bahamas
• Judge: Mr. Justice Milton Evans JA,
• Judgment Date: 18 August 2021
• Neutral Citation: BS 2021 CA 145
• Docket Number: SCCivApp. No. 10 of 2021
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honorable Sir Michael Barnett, P

The Honorable Mr. Justice Isaacs, JA

The Honorable Madam Justice Evans JA

SCCivApp. No. 10 of 2021

Between

Roscoe Thompson t/a Thompson'S Heavy Equipment

Appellant

and

The Attorney General of the Commonwealth of the Bahamas

Respondent

APPEARANCES:

Mr. Wayne Munroe, QC., with Ms. Palencia Hunter, Counsel for the Appellant

Mr. Kirkland Mackey, Counsel for the Respondent

Arnold v Britton and ors. [2015] UKSC 36 considered

Commonwealth of Australia v Amman Aviation Pty. Ltd. [1991] LRC (Comm.) 275 considered Financings Ltd. v. Baldock [1963] 2 Q.B. 104 considered

Mannai Investment Co. Ltd. v Eagle Star Life Assurance Co. Ltd. [1997] AC 749 considered Robinson v. Harman [1848] 154 ER 363 considered

Civil Appeal — Contract — Requirements for Termination of Contract — Validity of the Notice of Termination — Delayed Receipt of Notice — Cost

The appellant entered into contracts with the Department of Environmental Health Services of the Ministry of the Environment and Housing (on behalf of the Government) (“the Ministry”) for the operation and maintenance of waste disposal sites in several settlements on the island of Eleuthera. According to clause 2 of the contract, either party could terminate the contract by giving the other party 2 weeks' notice of the termination. The respondent purported to terminate the contracts effective 30 November 2017, via letter dated 13 November 2017. The appellant on 16 March 2018, issued a Writ of Summons claiming that the respondent had “failed to provide notice of the termination as specified by the agreement governing the Plaintiff's employment” and therefore breached the said agreement. He claimed loss of profits for the unexpired term of the contracts, along with interest and costs. The appellant appeals the learned judge's ruling dismissing his claim for breach of contract and that the appellant pay cost to the respondent on the grounds inter alia that the learned judge erred; “in finding that the notice was valid in all the circumstances to terminate the contract, subject to the implied term that time only began to run from receipt”, as well as “a matter of fact in ordering that the Appellant pay 70% of the Respondent's costs”.

Held: appeal dismissed; full costs to the respondent, to be taxed if not agreed.

After having considered the facts and the law relevant to the issue of the validity of the notice and delayed receipt, we agreed with the finding of the trial Judge that “whatever the issues with the Notice and the delay in service, it seems to me that a reasonable recipient could not have been left with any doubt as at the 27 November 2017 that it was the unequivocal intention of the defendant to terminate the contracts on two weeks' notice, although the termination date stated in the letter was no longer viable because of the delay in receipt.” As such we found no merit in grounds 1 and 2 of the appellant's grounds of Appeal.

As to the ground of appeal relative to cost because we found that the previous grounds put forward by the Appellant were without merit we are satisfied that the Appellant could not possibly be entitled to 100% costs of the action and was of the view that the learned Judge was generous in limiting the costs payable by the Appellant at 70%.

We dismiss the appeal and award full cost of the appeal to the respondent.

Judgment by the Honourable Mr. Justice Milton Evans JA,

Introduction

1 The Appellant in this matter appeals against the whole of the Judgement of his Lordship the Hon. Justice Loren Klein made on the 8” December, 2020 (“the Ruling”) whereby the learned judge ordered inter alia that:

• 1. The Plaintiff's claim for breach of contract is dismissed.

• 2. The Defendant is to pay to the Plaintiff the sum of $8,127.71 plus interest at the rate of 6.25% pursuant to the Civil Procedure (Award of Interest) Act, 1992, from 30 November 2017 until the date of judgement.

• 3. The plaintiff is to pay to the Defendant 70% of its costs of this action, such costs to be tax if not agreed.

The Appeal

2 The Appellant filed his Notice of Appeal Motion on the 18 January, 2021 setting out the following grounds:

“1. The learned judge erred at paragraph 46 of his Judgement in finding that the notice was valid in all the circumstances to terminate the contract, subject to the implied term that time only began to run from receipt.

2. The learned judge erred as a matter of law in finding that the Respondent did not breach paragraph 2, the termination of convenience clause.

3. The learned judge erred as matter of law in finding that the Appellant was not entitled to damages for future profits under the unexpired term of the contracts.

4. The learned judge erred as a matter of fact in finding that the Appellant's contractual entitlements amounted to $8,127.77.

5. The learned judge erred as a matter of fact in ordering that the Appellant pay 70% of the Respondent's costs”.

Background Facts

3 The learned Judge in his judgment set out the facts on which the dispute between the parties was predicated as follows:

“[4] The facts of this case are relatively simple and largely uncontroversial.

[5] The plaintiff operates the business of heavy-duty equipment and trucking services, including maintenance of landfills, trading as “Thompson's Heavy Equipment”. On 14 February 2017, he entered into seven contracts with the Department of Environmental Health Services of the Ministry of the Environment and Housing (on behalf of the Government) (“the Ministry”) for the operation and maintenance of waste disposal sites at the following settlements on the island of Eleuthera— Tarpum Bay, Whymms Bight, Bannerman Town, Green Castle, Rock Sound, Waterford and Deep Creek.

[6] The contracts are in materially similar terms, except for variations in the contract amounts for the designated sites. The value of the contracts for the Tarpum Bay and Rock Sound sites was $5,000 per month plus VAT of 7.5%; for the Green Castle, Waterford and Whymms Bight sites, $2,500 per month plus VAT of 7.5%; and for the Deep Creek and B anne rman Town sites, $2,333.33 plus VAT of 7.5% As indicated, they were to commence from 1 October 2016 and continue in force until 30 June 2018.

[7] The operative terms of the contracts are immaterial for the purposes of this claim. What is significant is the clause to be found at paragraph 2 of each of the contracts, which provides as follows: “IT IS HEREBY MUTUALLY AGREED as follows:

(1) […..]

(2) This agreement may be terminated at any time by either party by giving two (2) weeks' notice of intention to terminate the agreement and the date of termination shall be the date stated in such notice of termination.”

[8] Clause 2 does not expressly provide for the manner or form in which the notice was to be given or communicated, although the requirement for the date of termination to be “stated” in the notice implies it is to be in writing. By contrast, cl. 4, which reserved a right to the Government to terminate in the event of breach by the contractor, provided for how notice was to be given for termination under that clause: 3

[9] There appears to be a typographical error in cl. 4 (which is replicated in all of the contracts), and it seems that the words “the Contractor” are missing and should come immediately after the words ““receipt of such notice by…'' But it is reasonably clear even on the current wording that a notice under that clause is only to take effect on its receipt by the other party.

“(4) If at any time the Government is satisfied that the Contractor is in breach of the agreement by reason of its failure to comply with any of the terms and conditions herein contained the Government may without prejudice to any other remedy which may be available to it in respect of such breach terminate this Agreement by way of notice in writing to the Contractor either by fax, personally or by post and upon receipt of such notice by [sic] this Agreement shall forthwith determine and be of no effect without prejudice, however, to any rights which may have accrued to the Government prior to the determination.” [Emphasis supplied.]

[10] By letter dated 13 November 2017, the defendant purported to terminate the said contracts with effect from 30 November 2017. The notice did not s pe cifically refer to cl. 2 of the contracts, but there is no dispute that this was the provision being invoked. It appears that the defendant initially attempted to dispatch the letter by email to an account used by the plaintiff's company on 16 November 2017, but it is unclear on the evidence whether this email was ever received. The plaintiff's position is that he never received the letter until 27 November 2017, when he personally collected it from the defendant's office. Further, through his counsel Mr. Munroe, the plaintiff said that he accepted this “repudiation ‘ of the contract, although no evidence was led as to whether this acceptance of repudiation was ever directly communicated to the defendant. Nothing turns on this, however, as acceptance of repudiation may be indicated by conduct which clearly shows that the aggrieved party is treating the contract as at an end (see Vitol SA v. Norelf Ltd. [1996] AC 800, at 810–11, per Lord Steyn).

[11] Some months later, on 16 March 2018, the plaintiff issued a Writ of Summons claiming that the defendant “failed to provide notice of the termination as specified by the agreement governing the Plaintiff's employment ‘ and therefore breached the said agreement. He claimed loss of profits for the unexpired term of the contracts, along with interest and costs. As indicated, the timing of the dispatch and receipt of the Notice is a matter of some dispute between the parties, and this is critical to the resolution of this claim’.

4 At paragraph 3 of his Judgment the learned Judge signified what...