Liberty Club Ltd Claimant v James Bristol Henry, Henry & Bristol, a firm Defendants
| Jurisdiction | Grenada |
| Judge | Glasgow, M |
| Judgment Date | 14 March 2016 |
| Judgment citation (vLex) | [2016] ECSC J0314-3 |
| Docket Number | Claim Number: GDAHCV2015/0496 |
| Court | High Court (Grenada) |
| Date | 14 March 2016 |
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
IN THE HIGH COURT OF JUSTICE (CIVIL)
Claim Number: GDAHCV2015/0496
The Eastern Caribbean Court of Appeal in the case ofJanin Caribbean Construction Limited v Wilkinson et al1 made an express finding that "the law as it stands inRondel v Worsleyhaving not been changed by legislative hand, represents the law applicable in Grenada with regards to barrister's immunity. Notwithstanding this statement of the law for the purposes of this territory, the claimant herein (hereinafter the respondent) has filed this claim in which it asserts that it is entitled to remedies for the defendants' negligence and breach of contract as counsel in proceedings before the court. Unsurprisingly, the defendants (hereinafter the applicants) have applied to strike out the claim on the grounds that it has no realistic prospect of succeeding. The grounds for the application are equally predictable. The applicants are asking the court to find that the allegations made in the statement of claim "relate to decisions made in the course and furtherance of the conduct and management of litigation in the Insurance Claim and the decision to amend the said pleadings was made in court or alternatively was a preliminary decision affecting the way in which the case was to be conducted at the hearing and, in the circumstances, the Defendants are immune from suit in respect thereof by virtue of section 25 of the Legal Professions Act No. 25 of the 2011 Laws of Grenada."2. Complaint was made about the claim being statute barred but this point of contention was not pursued strenuously by either side in oral arguments.
Before reciting the respondent's rejoinder, it may assist to set out the background to how the parties got to this point.
The first applicant is a partner in the second applicant firm of attorneys-at — law. The second applicant was retained to represent the respondent in claim no GDAHCV 2005/0409 which action was brought by the respondent against Beacon Insurance Company Limited (hereinafter referred to as "Beacon" and the "Beacon Proceedings"). In the Beacon proceedings, the respondent alleged that Beacon breached the terms of an insurance agreement between Beacon and the respondent. Beacon is said to have failed to honour obligations to pay the respondent for losses it incurred as a result of the passage of Hurricane Ivan in 2004. The respondent filed this claim against the applicants alleging that they (the applicants) breached their contractual obligations to properly represent the respondent in the Beacon proceedings. It is also pleaded that the applicant acted negligently in executing their duties owed to the respondent. The allegations concern the conduct of the trial of the Beacon proceedings. I will borrow the applicants' succinct description of the actions which form the basis of the respondent's complaint against the applicants —
The respondent"alleges that on the morning of the trial the first defendant James Bristol who with Leslie Haynes QC and Diana Forrester acted as counsel for Liberty Club Ltd in the action had applied to amend its Reply to Defence against Beacon without consulting it on the matter. It maintains that the Reply ought to have been amended within the 17 months prior to the hearing and the application for amendment was made contrary to Liberty Club's instructions that nothing should be done to delay trial of the action against Beacon."3
For the respondent it is said that the applicants' actions at trial breached the specific terms of the retainer agreement with the respondent. Concomitantly, the applicants acted inconsistently with their implied duty to use reasonable skill and care in the conduct of the Beacon proceedings. The applicants, in their defence and affidavit in support of the application for summary judgment rejoin that their actions in the said proceedings were entirely appropriate and in any event they benefit from barristers' immunity for the manner in which they conducted the trial. The first applicant offers the following explanation of the events at the trial of the Beacon proceedings —
In or about June 2008 whilst I was preparing the said pre-trial memorandum in conjunction with Leslie Haynes Q.C, it became evident to us that the Defendant may have waived strict compliance with a condition of the insurance policy, the subject matter of the Insurance claim.
It was decided that no immediate application ought to be made to the Court to amend the Claimant's Reply in the Insurance Claim due to the restriction on so doing as a result of the interpretation placed by the Court on CPR Part 20.1(3) as it was then worded.
On the 17th November 2009 whilst preparing for trial of the Insurance Claim together with Leslie Haynes Q.C, I formed the view that the restriction on amendments imposed by CPR Part 20.1(3) may be unconstitutional in that it denied the Claimant therein the right to a fair
hearing as guaranteed by Section 8(8) of the Constitution. The issue was discussed with Leslie Haynes Q.C and it was decided that an application to amend the Reply ought to be made and which was made the next morning immediately before the trial commenced."4
The applicants argue that the claim ought to be dismissed and a summary judgment entered in their favour. The respondent strongly opposes this view. The respondent's rejoinder is that the claim exposes issues which ought to be resolved at trial and not by summary disposal. Chief among the reasons for this submission is the posture that section 25 of the Legal Professions Act (hereinafter the Act) relied on by the defendants does not apply to this case "since at the material time when the negligence arose, the Act was not then in force and the Act is not retroactive in nature."5 In respect of the immunity of barristers, the respondent's reply is that the "old rule ofRondell v Worselydoes not apply. The House of Lords has since the case ofHall v Simonsdeparted from the English Law doctrine of barristerial immunity from suit for professional negligence… It is doubtful whether that doctrine was imported into Grenada."6 The response continues that even if the doctrine did apply to the territory, the conduct "of which complaint was made does not fall within the category of negligent conduct covered by this immunity… insofar as such conduct does not fall within such category or that the question whether it does fall unto that category, is a mixed question of law and fact which cannot be disposed of in a summary fashion."7 For the position that the court ought not to grant a summary judgment in these circumstances, the respondent relies on the cases of CITGO Global Custody NV v Y2K Finance Inc8, Alfa Telecom Turkey Limited v Cukurova Finance International Limited and Cukurova Holdings AS9, Saint Lucia Motors & General Insurance Co. Ltd v Modeste10 and SGL Holdings Inc. v Shammas11.
Much of the argument in this case was focused on the question of the applicability of the barristers' immunity from suit for negligence. More aptly, the applicability of what may be shortly described as theRondel v Worsley principle and the line of cases following that decision. Counsel for the applicants insisted that Rondel v Worsley is still good law in Grenada and urged the court to consider the New Zealand case of Rees v Sinclair12 for the proposition that the Rondel v Worsley principle is extended to jurisdictions such as Grenada where there is what is called a "fused" legal profession. The applicants also urge the court to dismiss the assertion that the Act is inapplicable to this case having been promulgated at a time after the cause of action arose. The argument here is that the Act intends to affect the instituting of suits against counsel for negligence from the date of its promulgation and does not reflect any intention of retroactive effect. For this latter proposition, the applicants rely on the Court of Appeal decision in Browne v the Attorney General and others [2014] 5 LRC 34813.
For its part, the respondent relies on the cases ofSaif Ali v Sydney Mitchell & Co [1978] 3 ALL ER 1033 (a firm) and others, P (Third Party)14 and Arthur J.S. Hall & Co (a firm) v Simons et al [2000] 3 All ER 67415 for the argument that the barristers' immunity no longer exists in England and has not been imported into Grenada.
I have hopefully recited the legal positions of both sides with deference to the eminence of legal counsel engaged in this case. However, the reason for the controversy on the application is not readily apparent to me. I say this because it would seem to me that the entire issue of the law on the barristers' immunity in Grenada was fulsomely addressed in the case ofJanin Caribbean v Wilkinson et al. In this context it would be useful to quote fully from what was said by her Ladyship, Pereira C.J in this regard —
As the learned trial judge pointed out...
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