Vacval v Herman

JurisdictionBahamas
CourtSupreme Court
JudgeCharles, J.
Judgment Date05 Oct 2017
Docket Number2014/CLE/gen/01795

Supreme Court

Charles, J.

2014/CLE/gen/01795

Vacval
and
Herman
Appearances:

Ms. Glenda Roker of Davis & Co for the plaintiff

Mr. Luther McDonald and Ms. Ken Sherman of Alexiou, Knowles & Co for the defendant

Civil procedure - Disclosure – Specific disclosure – Requirements for specific disclosure – Whether requested documents were necessary or of any relevance to the present matter – Order 24 Rules 7 and 8 of Rules of the Supreme Court, 1978 – Amoco (UK) Exploration Co. v. British American Offshore Ltd (2000) 23 February (Trans Ref 1999 Folio 1159)Morgan (A Firm) v. Needham [1999] 44 L.S. Gaz. R. 41, CA.

The defendant seeks specific disclosure of (i) recording of a mediation conducted by Mr. Bob Martyn; (ii) constituent documents of a Hong Kong based company and (iii) financial statements of that company for the years 2013, 2014 and 2015 and/or any other documentation evidencing the financial position of The Company for the relevant years. The defendant submitted that disclosure of these documents has become necessary since he is unable to complete and file witness statements as he is not in possession of potentially critical evidence on which it is presumed the plaintiff intends to rely on at trial.

The plaintiff is willing to provide the recording of the mediation but refuses to provide the other specific documents requested. The plaintiff asserts that the production of any documentation relating to The Company is of no relevance to the present action since The Company is not the subject of litigation between the parties. The plaintiff further states that the defendant is on a fishing expedition since the documents are not even relevant to his Counterclaim.

HELD:

1. Disclosure is not automatic and, in its case management role, the Court controls its extent.

2. An order for specific disclosure should not be made in relation to unpleaded matters: Amoco (UK) Exploration Co. v. British American Offshore Ltd (2000) 23 February, (Trans Ref 1999 Folio 1159).

3. The summons seeking specific discovery is dismissed as it is not relevant to the present action and/or to the defendant's Counterclaim and is, more or less, a fishing expedition.

Charles, J.
1

On 4 July 2017, the defendant filed a Summons, pursuant to Order 24 Rule 7 of the Rules of the Supreme Court 1978 (“the RSC”) for the plaintiff to produce for inspection within fourteen days to the defendant the following documents namely:

  • i. Recording of the mediation conducted by Mr. Bob Martyn in its entirety;

  • ii. Copies of the constituent documents of Star Trends Hong Kong Limited, a Hong Kong based watch company (“ Star Trends”) and;

  • iii. The Financial Statements of Star Trends for the years 2013, 2014 and 2015 and/or any other documentation evidencing the financial position of Star Trends Hong Kong Limited for the relevant years.

2

The Summons is supported by two affidavits of Wynsome D. Carey filed on 4 July 2017 and 23 August 2017 respectively.

3

With respect to (i), the plaintiff states that he has no objection to the production of the recording of the mediation. However, he alleges that he has experienced some difficulty in producing the recording as the original was stored in a computer which the defendant seized and sold without his knowledge, consent and approval. That being said, the plaintiff insists that he is taking the necessary steps to have the recording extrapolated from a back-up drive which, according to him, is also in the defendant's possession by virtue of his seizure of the computer.

4

With respect to (ii) and (iii) of the Summons for discovery, the plaintiff asserts that the production of any documentation relating to Star Trends is of no relevance to the present action since Star Trends is not the subject of litigation between the parties. Says the plaintiff, the defendant is on a fishing expedition to enable him to obtain information that he was once privy to during the option period but which is no longer available to him due to his own termination of the option. Further, says the plaintiff, the documents requested are also not relevant to the defendant's Counterclaim.

BACKGROUND FACTS
5

The plaintiff filed an Amended Writ of Summons with a Statement of Claim on 7 April 2015. His claim against the defendant is for (i) damages for wrongful removal and sale of personal property (ii) damages for trespass and destruction of property, trespass and illegal distress; (iii) costs and (iv) further or other relief.

6

Some relevant facts are that the plaintiff and the defendant were family friends. In or about September 2012, they entered into an agreement whereby the defendant was to provide the plaintiff with an interest free/penalty free mortgage for the purchase of Lot Number 6 in the subdivision known as Palatial Estates situated on Paradise Island (“the property”) in exchange for the option to purchase a part of Star Trends. The completion date of the agreement was set for 26 September 2014.

7

On 26 September 2012, Scotiabank (Bahamas) Limited conveyed to the plaintiff the property. On 18 December 2013, the parties executed an Indenture of Mortgage in relation to the agreement. In March 2014, the parties entered into discussions wherein they orally agreed that the completion date stated in the agreement be extended to 31 January 2015. In or about mid-June 2014, the defendant advised the plaintiff that he was not interested in exercising his option and that he wished to revert to the original completion date. Thereafter, difficulties arose between them; the details of which are not material to this application.

8

According to the plaintiff, he and his wife left the jurisdiction on a trip and during their absence, the defendant his servants and or agents entered the property without his permission and removed his belongings and that of his wife. Following the actions of the defendant, the plaintiff successfully obtained an injunction from the Supreme Court on 18 November 2014 preventing the sale of the property. The learned judge later discharged the said injunction but ordered that the defendant deliver up to the plaintiff all of his personal belongings left in the property. The plaintiff alleged that he was unaware of a sale of his personal items as well as those belonging to his wife. Consequently, he brought this action seeking damages.

9

On 15 June 2015, the defendant filed a Defence and Counterclaim. The Defence is not what I would classify as a normal defence. Except for an admission to paragraphs 1 and 2 of the Statement of Claim, and the relief sought whereby he puts the plaintiff to strict proof of the alleged loss and damage, the Defence does not state (a) which of the allegations in the Statement of Claim he denies; (b) which allegations he is unable to admit or deny, but which he requires the plaintiff to prove; and (c) which allegations he admits.

10

The normal rule is that where a defendant denies an allegation, he must state his reasons for doing so; and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version. A defendant who (a) fails to deal with an allegation; but (b) has set out in his defence the nature of his case to the issue to which that allegation is...

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