Agard v Mottley and Walcott
| Jurisdiction | Barbados |
| Judge | OLSON DeC ALLEYNE,JUDGE OF THE HIGH COURT |
| Judgment Date | 29 December 2017 |
| Neutral Citation | BB 2017 HC 32 |
| Docket Number | No. 1753 of 2015 |
| Court | High Court (Barbados) |
| Date | 29 December 2017 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Dr. the Honourable Justice Olson DeC Alleyne, Judge of the High Court
No. 1753 of 2015
(Acting herein in her capacity as Chairman of the Barbados Labour Party (BLP) and on behalf of the members of the BLP)
(Acting herein in his capacity as General Secretary of the Barbados Labour Party (BLP) and on behalf of the members of the BLP)
Mr. Hal Gollop Q.C. in association with Ms. Lynette Eastmond and Ms. Kara-Je Kellman for the Claimant.
Mr. Leslie Haynes Q.C. in association with Mr. Leslie Roberts for the First Defendant.
Mr. Roger Forde Q.C. in association with Ms. Michelle Shepherd for the Second Defendant.
Civil practice and procedure - Application by the first and second defendants pursuant to the Supreme Court (Civil Procedure) Rules, 2008 Part 26 Rule 26.3(1) and 26.3 (3) for orders to have the Fixed Date Claim Form and an affidavit filed by the claimant struck out and the claimant's claim dismissed — Capacity and status of the defendants — Whether defendants could be sued on behalf of the unincorporated association — Who the proper defendants ought to have been — Whether claimant commenced the proceedings by the wrong form as they did not fall into any category of claim for which the use of a fixed date claim form was mandated by Rule 8.1(5) of the CPR — Whether the fixed date claim form included a short description of the nature of the claim as required by CPR 8.4(1)(a) — Whether the fixed date claim form disclosed a cause of action against the defendants — Whether the fixed date claim form was incoherent and lacked detail making it difficult for the defendants to file a defence in response — Whether the court should use its discretion in spite of the errors to allow the proceedings to continue.
Before me are two applications filed by the first and second defendant, respectively. They seek to have a Fixed Date Claim Form (“the FDCF”) and an affidavit (“the claimant's affidavit”) filed by the claimant on 11 December, 2015 struck out.
I heard the applications on 7 April 2016. Having reviewed the submissions and the documents filed by the parties, I have determined that for the reasons set out below, the FDCF and the claimant's affidavit ought to be struck out. I have also determined that an amended FDCF filed by her on 4 March 2016 (“the amended FDCF”) ought to meet a similar fate.
The FDCF came on before me on 23 December 2015. On that occasion, the first and second defendants indicated their intention to make the applications under consideration. I scheduled the filing of the related documents and the hearing of the applications.
The first defendant filed her application on 29 January 2016; an affidavit on 4 February 2016; and written submissions on 5 February 2016. The second defendant filed his application on 29 February 2016 along with an affidavit; and written submissions on 4 March 2016. The claimant filed her written submissions on 4 March 2016. On that date, she also filed the amended FDCF. She filed no affidavit in response to the defendants' affidavits.
I will now set out the background to the applications drawing on such facts as are not in dispute.
These proceedings concern the status of the claimant's membership of the Barbados Labour Party (“the BLP”), a political party in this Island. The first defendant is the Chairman of the BLP and the second defendant, its General Secretary.
The BLP is an unincorporated association. Its internal affairs are regulated by a constitution (“the constitution”). Among other things, the constitution provides for the disciplining of members. It also sets out the powers and duties of various office holders and the structure and functions of the BLP's organs. One such organ is the National Council to which the disciplinary function is assigned. Its membership includes the BLP Chairman and the General Secretary.
The Chairman's constitutional function is to preside over meetings of the National Council. He has an original and a casting vote. Among other duties, the General Secretary is required by the constitution to attend all meetings of the National Council.
The Claimant was a member of the BLP up to 22 November 2015. Whether that membership continues is the subject of these proceedings. On that date, she faced a number of disciplinary charges before the National Council. The hearing terminated with a decision to expel her from the BLP. She now seeks to challenge the lawfulness of that decision.
I must describe the FDCF with some specificity. The title of the proceedings is set out on the first page. In it, the first defendant is expressed to be “[a]cting herein in her capacity as Chairman of the Barbados Labour Party (BLP) and on behalf of the members of the BLP”. In like style, the second defendant is expressed to be acting in his capacity as General Secretary of the BLP and on behalf of its members.
The following words are set out immediately above the references to the parties:
IN THE MATTER OF SECTION 17 OF THE SUPREME COURT OF JUDICATURE ACT CAP 117A OF THE LAWS OF BARBADOS
The next two pages contain a set of printed notes directed to the defendants and informing them how they may deal with the claim. In the specimen form of FDCF (“Form 2”) set out in the appendix to the Supreme Court ( Civil Procedure) Rules, 2008 (“the CPR), these notes appear at the end of the document. However, this peculiarity in the arrangement of the claimant's FDCF is not the subject of complaint by the defendants.
The substantive portions of the FDCF are set out on pages 4 and 5 which are headed “STATEMENT OF CLAIM” and “STATEMENT OF PARTICULARS”, respectively. They end with a certificate of truth. The backing sheet is marked “FIXED DATE CLAIM FORM”.
The page which bears the rubric “STATEMENT OF CLAIM” reads:
“The Claimant … claims against the Defendants:
1. A Declaration that the National Council of the Barbados Labour Party (BLP) while acting as a quasi Judicial body in the disciplinary hearing of the Claimant on Sunday 22 November 2015 and to which the Claimant was summoned to appear before it ( sic) to be heard and show cause why the Claimant should not be disciplined, the Defendants acting through the officers of the National Council of the BLP while under a duty to observe the rules of natural justice, failed and/or refused to accord the Claimant the protection due to her in accordance with the said rules of natural justice ( sic).
2. A Declaration that in the premises the decision to expel the Claimant from membership of the BLP was unlawful, void and of no effect.
3. A Declaration that in the events which transpired on Sunday 22 November 2015 at the BLP headquarters which led to the expulsion of the Claimant from the BLP, the Defendants acted in disregard of the Claimant's right to a fair hearing.
4. A Declaration that the decision to expel the Claimant from the BLP in her absence was a breach of the Claimant's right to a fair hearing.
5. A Declaration that in the events which transpired on 22 November 2015 at the Headquarters of the BLP, the decision taken by the Defendants to expel the Claimant from the BLP was an unlawful and/or unreasonable exercise of discretionary power.
6. Damages.
7. Further or other relief as may be deemed just by the Honourable Court.
The page captioned “STATEMENT OF PARTICULARS” reads:
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(a) A resolution was passed by the National Council of the BLP at its meeting of 12 November 2015 that in exercise of the powers vested in it under Rule 81 of the Constitution of the BLP the Claimant should be charged for breaches of discipline in accordance with Rule 82 of its Constitution. Nine (9) charges were preferred in a Schedule.
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(b) The nine (9) charges were drafted by the General Secretary (the Second Defendant herein) who sat as a member of the National Council adjudicating at the said hearing which was presided over by the First Defendant herein.
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(c) The Members sitting on the National Council at the hearing were members of the same Council that passed the resolution to prefer charges against the Claimant.
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(d) The Claimant and Counsel took the decision to withdraw from the hearing as it appeared futile to remain in light of the Claimant's (sic) intention to proceed in the same unlawful manner, even after objections had been raised by Counsel, namely the National Council's failure to observe the rules of Natural Justice and the absence of procedural propriety.
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(e) The Claimant later heard of her expulsion through a radio news item later on the night of 22 November 2015.
In her affidavit, the claimant deposed to her association with the BLP, the structure of the party and the National Council, the circumstances leading up to the disciplinary meeting, the events of the meeting, and her acquiring knowledge of the outcome of the meeting.
The first defendant's application is in these terms:
TAKE NOTICE that the First Defendant applies to the Court pursuant to the Supreme Court ( Civil Procedure) Rules 2008 Part 26 Rule 26.3 (1) and 26.3 (3) … for an Order that the Fixed Date Claim Form together with the Statement of Claim, Statement of Particulars and the Affidavit in support thereof deposed to by the Claimant, all filed on 11 th December 2015, be struck out and the Claimant's claim be dismissed with costs to be assessed.
The second defendant's application reads:
The Second Defendant applies to the Court, pursuant to Supreme Court ( Civil Procedure Rules) 2008 ( CPR) Part 26 Rules 26.3 (1) and 26.3 (3) or the inherent jurisdiction of the Court for the following Orders:-
1. That the Fixed Date Claim Form and the...
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