Liberty Club Ltd v The Beacon Insurance Company Ltd

CourtHigh Court (Grenada)
Judgment Date22 November 2010
Judgment citation (vLex)[2010] ECSC J1122-2
Date22 November 2010
Docket NumberCLAIM NO. GDAHCV2005/0409
[2010] ECSC J1122-2






Liberty Club Limited
The Beacon Insurance Company Limited

Mr. Leslie Haynes, Q.C. and Mr. James Bristol, instructed by Ms. Dia Forrester for the Claimant

Mr. Karl Hudson-Phillips, Q.C and Ms. Jennifer Hudson-Phillips, instructed by Mr.

Neil Noel for the Defendant

Mr. Darshan Ramdhani for the Attorney-General


There are two applications before the Court for consideration; one filed on the 18th November 2009, and the other filed on the 25th November 2009.


The first application reads as follows:

"The Claimant applies to the Court for an order that it be permitted to amend its Reply in order to plead as follows:

  • (a) that the Defendant by requesting the Claimant to provide a detailed claim and not a claim referred to in Condition 11 (b)(i), that is, one with particulars which are reasonably practicable, has waived strict compliance with the said condition;

  • (b) that further, the Defendant by requesting the said detailed claim could only expect the Claimant to provide such a detailed claim within a reasonable time and the time limit of the 30th of November 2004 was not a reasonable time."


The second application reads as follows:

"The Claimant, Liberty Club Limited, of Point Salines in the parish of Saint George applies to the Court for an order that it be at liberty to amend its Statement of Claim as appears on the schedule hereto ("the Schedule").


The first application is supported by the affidavits of James Bristol, dated the 18th day of November 2009 and 10th December 2009. There are two affidavits in opposition, the first filed by Neil Jude Noel on 25th November 2009, and the second filed by Adebayo Olowu dated 3rd December 2009.


In support of the application, Mr. Bristol in his 18th November affidavit at para 2 states,

"In or about June 2008 whilst preparing the pre-trial memorandum, it became evident that the Defendant may have waived restrict compliance with condition 11(b)(i) of the policy of insurance as appears in the Claimant's Pre-Trial Memorandum."


He goes on to state in para 3 of the said affidavit that,

"The Claimant raised these issues in Article 10 of the witness statement of Mr. Leon Taylor filed on the 30th of June 2008."


At para 4, he states,

"Although the need to specifically plead these matters became apparent when I was preparing the Pre-Trial Memorandum, CPR Part 20.1 prevented an amendment."


At para 5, he states,

"Whilst preparing for trial, on the 17th of November 2009, I formed the opinion that the restriction imposed by CPR 20.1(3) may be unconstitutional in that it denies the Claimant in these circumstances a right to a fair hearing guaranteed by section 8(8) of the Constitution."


He further states that the issue of compliance with Condition 11 of the insurance policy "is central to the success of the Claim and to deny the Claimant the right to rely on these grounds on a mere pleading point will be potentially fatal to its Claim and disproportionately prejudicial to it."


The Defendants have opposed the application, citing CPR Part 20.1(3), which states,

"The court may not give permission to change a statement of case after the first case management conference unless the party wishing to make the change can satisfy the court that the change is necessary because of some change in the circumstances which became known after the date of that case management conference."


They assert that there has been no change in circumstances which became known after the case management conference. In fact, the Claimant/Applicant do not disagree with this. They admit that there has been no change of circumstances which became known after the case management conference.


The Defendants also oppose the application on the ground that it is not permissible for the Court to seek for the first time to introduce fresh matters in its Reply or to raise matters not pleaded in the Amended Defence.


The Claimant/Applicant also seek to say that CPR 20.1(3) is unconstitutional as it violates section 8(8) of the Grenada Constitution, which states:

"(8) Any court or other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any personbefore such a court or other authority, the case shall be given a fair hearing within a reasonable time."


They assert that to not allow the amendment which they seek "may be unconstitutional" so as to deny the Claimant a fair hearing in the matter.


The Attorney-General, on whom the documents were served by Order of the Court, also objected to the application and in its affidavit stated that CPR 20.1(3) was not unconstitutional and raised a procedural issue as to how the Claimant approached the Court on the constitutional issue.


Mr. Bristol, in his final affidavit filed on 10th December 2009, set out the chronology of events and admits that the Claimant in their reply did not raise the issue of waiver, and notes that the issue of waiver cannot be argued if it has not been pleaded.


He asserts that the "restriction imposed by CPR 20.1(3) may infringe the Claimant's right to a fair hearing and "equality of arms" guaranteed by section 8(8) of the Constitution of Grenada."


Mr. Haynes, Q.C., in his arguments said to the Court that there are two issues—"1. You can go for an outright argument saying CPR 20.1(3) is unconstitutional. Alternatively, the Court may find that in the particular circumstances of this case, Rule 20.1(3) would not apply, because in applying 20.1(3) the right to a fair trial would be breached."


As I indicated previously, Mr. Haynes, Q.C., conceded that the Court had no power to grant the amendment sought under CPR 20.1(3) in the first application in that there had been no change in circumstances but that the Court should consider whether the Rule may be unconstitutional as it offends against the right of access to this Court.


He argued that the overriding objective of the CPR should be applied. Rule 1.1 states:

"(1) The overriding objective of these Rules is to enable the court to deal with cases justly.

(2) Dealing justly with the cases includes -

  • (a) ensuring, so far as is practicable, that the parties are on an equal footing;

  • (b) saving expense;

  • (c) dealing with cases in ways which are proportionate to the—

    • (i) amount of money involved;

    • (ii) importance of the case;

    • (iii) complexity of the issue; and

    • (iv) financial position of each party;

  • (d) ensuring that it is dealt with expeditiously; and

  • (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."


Mr. Hayne, Q.C., argued that CPR 20.1(3) had to bow or give way to section 8 (8) of the Constitution.


The first Case Management Conference was held on the 10th October 2006.


The Claimant contends that it only became aware of the need to plead waiver in June 2008, but did not apply for the amendment due to CPR 20.1.


The Claimant concedes that this Rule has been interpreted strictly, limiting amendments to the conditions stated within the rule.


In the well known case ofOrmiston Ken Boyea and Hudson Williams v Caribbean Flour Mills Ltd. Civil Appeal No. 3 of 2004, D' Auvergne JA (Ag.) considered the provisions of CPR 20.1 (3) and stated:

"The discretion of the Court to permit changes to the Statement of Claim has to be considered with reference to CPR 20.1(3). It is, in my view, that the overriding objective cannot be used to widen or enlarge what the specific section forbids…" The section constrains the Court from exercising the power to permit amendments…except where certain conditions are satisfied."


InWinston Padmore v James Morgan CV No. 277 of 2006, Justice Dean Armore held:

"The conjoint effect of my finding and Part 20,1(3) is that the Court is enjoined from granting leave to amend unless there has been a change in circumstances. In so far as it has been accepted on all sides that there has been no change of circumstances, I must consider whether I hold an inherent discretion to depart from the provisions of Part 20.1(3). Alternatively, I must consider whether I am required by the overriding objective to bend the rule and grant leave to amend…

The overriding objective does not come to the rescue of the Defendant. According to D' Auvergne JA the overriding objective does not in or of itself empower the Court to do anything or grant to it any discretion residual or otherwise…

When considering an application for leave to amend a Statement of Case, the Court must exercise its discretion in accordance with Part 20.1. The instant application was made at a Pre-trial review. Because there is no allegation that the application was motivated by a change in circumstances, I am constrained to refuse leave to amend."


Counsel argued that there must be equality of arms and that it was the Court's task to determine whether the Claimant was put to a disadvantage by CPR 20.1(3).


In the case ofCapital Bank International Ltd, v Eastern Caribbean Central Bank and Sir K. Dwight Venner—Civil Appeal Nos. 13 & 14 of 2002, Byron CJ looked at section 8(8) of the Grenada Constitution and stated:

"10. (a) Although the section does not confer the right of access to the courts in express terms it is generally accepted that it does.

(b) Proceedings must be instituted or be likely to be instituted before the provision comes to life.

(c) Although the section is not subject to express limitations all rights are subject to the rights of...

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