Levers J
IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NOS: 27 AND 47 OF 2005 BETWEEN: SOPHIE RAVEN AND: (1) CHARLES QUIN (2) ANGELYN HERNANDEZ (3) KENNETH FARROW (4) GREG LINK (5) HECTOR ROBINSON (6) NEAL LOMAX (7) QUIN & HAMPSON (A FIRM) BEFORE: The Hon. Madam Justice Levers APPEARANCE: Counsel for the Plaintiff: S. Hall-Jones instructed by S. Diamond of Diamond Law Associates Counsel for the Defendants: M. Imrie of Maples & Calder HEARD: May 5, 2005 RULING Levers J. There are two summonses before this Court. One in Cause No. 27/05 asking for the following relief:
That the Plaintiff's Originating Summons be struck out or dismissed on the ground that it is frivolous, vexatious or otherwise an abuse of the process of the Court. And the other in Cause No. 47/05 asking for the following relief: 1. That the claim by the Plaintiff against the Fourth Defendant be struck out or dismissed on the grounds that it discloses no reasonable cause of action and/or is frivolous, vexatious or otherwise an abuse of the process of the Court;
That paragraph 87 – 89 of the Statement of Claim be struck out or dismissed on the grounds that they disclose no reasonable cause of action and/or frivolous, vexatious or otherwise an abuse of the process of the Court;
That the Plaintiff be required to serve and Amended Statement of Claim on the Defendants;
That the Defendants be granted an extension of time for filing their Defence until after the hearing of this Summons;
For such further or other directions as the Court may deem just; and
That the Plaintiff do pay the Defendants’ costs of an incidental to this application, such costs to be taxed if not agreed. Background The First Summons under Cause No. 27/05. The background to this is that the Plaintiff commenced an action against Quin and Hampson and attempted to get an ex-parte injunction. That attempt resulted in the following order being made: 1. Application dismissed as it relates to communication with the Chief Justice; and 2. The balance of the application is to be made inter parties upon 4 clear days notice to the Respondent. By way of explanation, the first paragraph of that Order was in response to injunctive relief sought by the Plaintiff endeavouring to stop the firm from communicating with the Chief Justice as to the termination of the Plaintiff. The order has not been complied with by the Plaintiff, instead she commenced a new action, Cause No. 47/05. In that action she has now served her Statement of Claim and by this Summons, the Defendants ask for Cause No. 27 to be struck out on the grounds that the Plaintiff has not complied with the Orders made and has no intention of continuing that action. Mr. Hall-Jones on behalf of the Plaintiff argues that the Plaintiff is entitled to stay that action and to proceed with the new one. Surprisingly, he submits that the causes of action are not the same, although his instructing attorney wrote to the Defendants’ attorney saying they may consolidate. It is well established that the jurisdiction to strike out must be sparingly used as its exercise deprives the party of the normal procedure for establishing rights by way of trial with discovery and oral evidence tested by cross-examination. On an application, the Court’s function is to decide whether the matter is so plainly unarguable that there is no point in having a trial. Striking out for abuse of process is a power ‘which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice in disrepute among right-thinking people' (per Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at p. 536). In Hunter’s case the House of Lords struck out a civil action raising an identical issue to one decided against the Plaintiff in previous criminal proceedings. It was found that the civil action was no more than a collateral attack upon a decision of another court of competent jurisdiction, and an abuse of process. Further, it is an abuse of process to raise in a second action an issue which should have been raised against someone who was a party to earlier proceedings or which has already been raised in concurrent proceedings. In Buckland v Palmer [1985] 1 WLR 1109 it was held to be an abuse of process to commence a second action in respect of the same cause of action as raised in an earlier action. In that case the plaintiff’s car had been damaged in a motor accident. Repairs cost £1,142. She claimed on her insurance and brought proceedings against the defendant claiming the £50 excess not paid by her insurer. This action was stayed when she accepted the payment into court. The insurer then commenced a second action in the name of the plaintiff claiming £1,092, and this action was struck out as an abuse of process. I can find no greater example of abuse of process than that which is before me today. The Plaintiff apparently not wishing to comply with the orders of the court decided to leave Cause No. 27/05 on file and recommence another action based on the same allegations. I therefore Order that Cause No. 27/05 be struck out. I now turn to the Second Summons before me in Cause No. 47/05. I have already outlined the relief sought in that matter and the background to the commencement of Cause No. 47/05. Dealing with the first relief, that is that the claim against the Fourth Defendant be struck out on the grounds that it discloses no reasonable cause of action, and/or is frivolous, vexatious or otherwise an abuse of the process of the Court. Careful scrutiny of the Statement of Claim is necessitated for this relief. A cause of action with some prospect of success will not be struck out provided the pleading raises some question fit to be tried. It does not matter in my view that the case is weak or is unlikely to succeed. The cause of action pleaded without some material averment however should be struck out. On an application to strike out it is my view that the Court’s function is to decide whether the case is so plainly unarguable so that there is no point in having a trial. The leading case is Williams and Humbert Ltd. v W and H Trade Marks (Jersey) Ltd. [1986] AC 368, HL, in which Lord Templeman said that: "...if an application to strike out involves a prolonged and serious argument the judge should, as a general rule decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself." This is an application to strike out the cause of action against the Fourth Defendant. I therefore need to look at the Statement of Claim and the relief sought carefully. The Statement of Claim is divided into parts. Part One deals with the facts of the matter and Part Two deals with the Plaintiff's causes of action. The first cause of action is claim for breach of the express terms of the contract of employment. It is established that Mr. Link was not a partner of the firm of Quin and Hampson with which the Plaintiff entered into a contract. Therefore it cannot be said that any claim can lie against Mr. Link for an breach of an express term of the contract employment. The second claim is a claim for breach of the implied terms in the contract of employment. The facts do not support this claim. It cannot be said that Mr. Link was responsible for the contract of employment. The third claim is for the claim for repudiatory breach of contract. There is no allegation against Mr. Link, the Fourth Defendant made by the Plaintiff as regards this cause of action. The next claim is for the claim for misrepresentation regarding partnership admission. This cannot be said to involve Mr. Link who was not a partner. The next claim is a breach for contract to admit to partnership, this too cannot involve Mr. Link on the facts of the matter. The next claim is the claim for conspiracy to cause economic loss. That claim is allegedly based on the facts and matters pleaded in paragraph 69.1 – 69.7 of the Statement of Claim and paragraph 69.1 – 7 deals with the action of Defendants 1, 2 and 3. Therefore, I cannot but hold that the fourth Defendant is not involved in the Plaintiff’s claim for conspiracy to cause economic loss. The next claim is the claim for injurious falsehood. Once again that claim is based on the same paragraphs 69.1 – 69.7. No tort claims have been made against Mr. Link. The final claim is a claim of compounding a felony Mr. Hall-Johns confirms that he is withdrawing this claim and will seek to file an Amended Statement of Claim. Mr. Hall-Jones submits that evidence will show that Mr. Link was involved in injurious falsehoods with respect I disagree. The Court cannot await the receipt of witness statements in an application to strike out. On an application to strike out a pleading on the ground that it discloses no reasonable cause of action, no affidavit evidence is admissible. This Court is required to assume that each and everyone of the facts pleaded is true and will be capable of proof at trial. I am also mindful of the fact that the cause of action with some prospect of success should not be struck out provided that the pleadings raise some questions fit to be tried. There is simply no such pleading against the Fourth Defendant in the Statement of Claim. The Court is of the view that the question of costs needs to be addressed specifically. Mr. Hall-Jones submits that on Cause No. 27/05, the Defendants have not been put to any costs. The facts are that the Plaintiff did not discontinue the action, but instead addressed the question of consolidation thereby provoking the Defendants to take out this Summons. The Defendants invited the Plaintiff to discontinue but no steps were taken by the Plaintiff until Mr. Hall-Jones advised the Court that he would discontinue on condition that no order for costs was made. On Cause No. 47/05 as the Defendants have succeeded on all the relief sought costs should follow. I make the following Orders: 1. On Cause No. 27/05, the Plaintiff's Originating Summons is struck out on the grounds that it is an abuse of the process of the Court and that the Plaintiff be ordered to pay the Defendants' costs of and incidental to the application, such costs to be in the sum of $500; 2. On Cause No. 47/05 that the Claim by the Plaintiff against the Fourth Defendant be struck on the grounds that it discloses no reasonable cause of action. Costs to the 4th Defendant in the sum of $500; 3. That paragraphs 87-89 of the Statement of Claim be struck out on the grounds that they disclose no reasonable cause of action; and 4. That the Plaintiff be required to serve an Amended Statement of Claim on the Defendants within 14 days of this Order hereof. Dated this 10th day of May, 2005 Judge of the Grand Court