Grenada Rice Mills Ltd v Grenada Marketing and National Importing Board

• Jurisdiction: Grenada
• Judge: ‘Thom JA’
• Judgment Date: 06 October 2021
• Judgment citation (vLex): [2021] ECSC J1006-1
• Docket Number: GDAHCVAP2015/0002
• Court: Court of Appeal (Grenada)

[2021] ECSC J1006-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

GDAHCVAP2015/0002

Between:

Grenada Rice Mills Ltd.

Appellant

and

Grenada Marketing and National Importing Board

Respondent

Appearances:

Mr. Dickon Mitchell and Mr. Anselm B. Clouden, Ms. Skeeta Chitan and Mrs. Crystal Braveboy-Chetram for the Appellant

Ms. Lisa Taylor for the Respondent

Civil appeal — Without prejudice rule — Whether without prejudice rule must be pleaded — Whether it was open to learned judge to hold that the respondent's letter was privileged — Whether negotiations were ongoing when letter was sent to appellant — Whether letter amounted to an admission by respondent of monies owed to the appellant — Appellate court's interference with trial judge's finding of fact — Trial judge's assessment of credibility of witnesses — Whether learned judge misconstrued appellant's case — Whether learned judge erred and misdirected herself in holding that there was no agreement for the respondent to purchase rice from the appellant

This appeal arises out of a dispute surrounding agreements made between Grenada Rice Mills Ltd (“GRM”) and Marketing and National Importing Board (“the Marketing Board”), for the milling of rice. GRM is a limited liability company registered in Grenada, engaged in the business of milling rice. While the Marketing Board is a statutory corporation engaged in the importation of rice which is then milled and sold in Grenada.

On 14 ^th February 1995, GRM and the Marketing Board entered into a written agreement in which it was agreed that GRM would store rice imported by the Marketing Board and at the Marketing Board's request, it would mill the rice for the Marketing Board at an agreed price referred to by the parties as “milling fees”. Subsequently, GRM and the Marketing Board entered into an oral agreement whereby, it was also agreed that whenever the Marketing Board's stocks of rice were depleted, GRM would loan rice to the Marketing Board. GRM would recover the loaned rice from the Marketing Board's next shipment and bill the Marketing Board for the milling fees. This happened in September 1998 and as a result, GRM submitted invoices in the sum of $359,643.34 to the Marketing Board for payment of rice delivered to the Marketing Board during that year. However, the Marketing Board rejected the invoices on the ground that they represented the sale price for rice and not the milling fees.

This disagreement between the parties continued from December 1998 to March 1999. GRM sent invoices to the Marketing Board totaling $204,270.34 being milling fees for rice milled and the Marketing Board disputed this sum, being of the view that, $185,960.77 was due to GRM. GRM also sent invoices totally $614,314.84 for rice supplied to the Marketing Board during the period December 1998 to March 1999. The Marketing Board refused to pay the sum contending it amounted to the sale price and not milling fees. Meetings were held between the parties to determine the sums due to GRM and on 21 ^st June 2001, the General Manager of the Marketing Board, wrote to GRM and offered to pay the sum of $350,803.82 in settlement of the sums claimed by GRM. However, GRM responding by letter, rejected the offer and subsequently instituted proceedings for $1,180,723.38, being sums due pursuant to the written agreement dated 14 ^th February 1995, together with interest and costs.

During cross-examination in the court below, the issue of whether the letter dated 21 ^st June 2001, being an offer to settle, was an admission by the Marketing Board of monies due to GRM, arose. The Marketing Board contended that the ‘without prejudice’ rule was applicable to the letter and GRM could not rely on the offer to settle contained in it. Further, the offer to settle was not an admission. While GRM argued that the letter was in fact an admission that the Marketing Board was indebted to GRM in the sum of $350,803.82. The learned judge having heard the evidence of both parties found that there was no general agreement between the parties for the Marketing Board to purchase rice from GRM. Further there was no agreement for the Marketing Board to purchase rice from GRM in September 1998 nor during December 1998 through March 1999. The learned judge also found that the “without prejudice” rule was applicable to the Marketing Board's letter dated 21 ^st June 2001 to GRM and the letter was therefore a privileged document and was inadmissible in evidence. The learned judge also found that the letter did not amount to an admission that the Marketing Board owed GRM $350,803.82. The learned judge therefore refused to award GRM the sum claimed save and except the sum of $21,466.25 which was admitted by the Marketing Board as outstanding milling fees, together with interest at the rate of 3% from the date of filing to the date of judgment and 6% thereafter to the date of payment and costs in the sum of $6,400.00.

GRM being dissatisfied with the judge's decision appealed on several grounds. The appeal raises the following issues for determination: (i) whether it was open to the learned judge to hold that the Marketing Board's letter dated 21 ^st June 2001 was privileged; (ii) whether the letter amounted to an admission by the Marketing Board that it owed GRM $350,803.82; and (iii) whether the learned judge erred and misdirected herself in holding that on the evidence adduced before the court, there was “no agreement” for the Marketing Board to purchase rice from GRM.

Held: dismissing the appeal; and ordering that the appellant pay the respondent the costs of this appeal in the sum of $4,266.66 being two-thirds of the costs awarded below, that:

• 1. Where a party seeks to base his case or part of it on a statement made during negotiations, the other party, the author of the statement, could object to the admission of the statement. This is usually done by an application to strike out. However, in this case, where the issue of admission of the sums owed by the Marketing Board contained in the letter of 21 ^st June 2001 arose during cross-examination, it was open to the Marketing Board to contend that the document was privileged by virtue of the ‘without prejudice’ rule in their submissions to the learned judge.

  Oceanbulk Shipping & Trading SA v TMT Asia Limited and others [2010] UKSC 44 applied; Berkely Square Holdings and Others v Lancer Property Asset Management and Others [2020] EWHC 1015 (Ch) applied; Ofulue and another (FC) v Bossert (FC) [2009] UKHL 16 applied.

• 2. The ‘without prejudice’ rule dictates that communication between parties during negotiations are privileged and are therefore inadmissible in court proceedings unless both parties consent. A document written ‘without prejudice’ that is part of a continuing sequence of negotiations, whether by correspondence or orally, will be privileged and therefore cannot be given in evidence without the consent of both parties, subject to exceptions. In light of this and having regard to the evidence that was before the learned judge, it was open to the learned judge to find as she did, that the ‘without prejudice’ rule applied. While there was documentary evidence in support of the negotiation between the parties, there was no direct evidence that negotiations had ended or evidence from which it could reasonably be inferred that the negotiations had ended during the time that the Marketing Board's letter dated 21 ^st June 2001 was sent to GRM. In sum, the learned judge did not err in ruling that the letter was a privileged document and therefore inadmissible.

  Dixons Stores Group Ltd. v Thames Television plc [1993] 1 All ER 349 considered; Cutts v Head and another [1984] Ch. 290 applied; Unilever plc. v The Procter & Gamble Co. [2000] 1 WLR 2436 applied.

• 3. In view of the finding above, GRM's submission that the letter dated 21 ^st June 2001 amounted to an admission must therefore fall away. In any event, on a proper construction, the letter shows that the Marketing Board was rejecting rather than agreeing that, there was or had been an agreement of sale between the parties. The letter did not amount to an admission of sums due and owing to GRM as contended.

• 4. It is well settled that an appellate court will only interfere with a judge's finding of fact where it is demonstrated that the learned judge made some material error of law or there was no basis on the evidence for the finding of fact or the judge failed to consider relevant evidence, or where the findings of fact cannot reasonably be explained or justified. Further, where the issue is one of credibility of witnesses, the appellate court will exercise caution, bearing in mind that the trial judge is in a privileged position to assess the witnesses' credibility. The judge had the opportunity to both see and hear the witnesses. Therefore, where there is conflicting evidence the judge's view of which witnesses were credible should be given great weight. In this case, where there was conflicting evidence, the learned judge having had the benefit of hearing and seeing the witnesses was entitled to determine their credibility. As such, the learned judge's view of which witnesses were credible should be given great weight.

  Clarke v Edinburgh and District Tramways Co. Ltd [1919] UKHL 303 applied; Watt (or Thomas) v Thomas [1947] SC (HL) 45 applied; Ming Siu Hung and others v J F Ming Inc and another [2021] UKPC 1 applied.

• 5. The learned judge was also entitled to conclude that GRM could not recover the selling price of the rice since there was no general agreement to purchase rice and there was no agreement to purchase rice in September 1998 or between December 1998 and March 1999. The agreement in September 1998 was for payment in kind being the recovery of...