Auto-Guadeloupe Investissement S.A.S v Alvarez et Al
| Jurisdiction | Barbados |
| Judge | Kentish, J. |
| Judgment Date | 03 July 2013 |
| Neutral Citation | BB 2013 HC 39 |
| Docket Number | Civil Suit No 199 of 2013 |
| Court | High Court (Barbados) |
| Date | 03 July 2013 |
High Court
Kentish, J.
Civil Suit No 199 of 2013
Mr. Garth Patterson Q.C. with Ms. Tammi Pilgrim of Lex Caribbean for the claimant.
Mr. Patterson Cheltenham Q.C. in association with Ms. Natasha Green of Charlton Chambers for the first respondent.
There was no appearance on behalf of the second respondent.
Dr. Corlita Babb-Schaefer and Mrs. Magreta Jordan-Watson for the third respondent.
Mr. Dale Marshal, Q.C. and Mr. Andrew Thornhill of George Walton Payne and Co. for Columbus Holdings France S.A.S and Columbus Acquisitions Inc. for the fourth and fifth respondent.
Sir Henry Forde, Q.C in association with Mr. Ramon Alleyne and Ms. Shena-Ann Ince of Clarke Gittens Farmer for Caribbean Fibre Holdings L.P. the sixth respondent
Civil practice and procedure - Pleadings — Application for striking out of Statement of Case — Abuse of process — Reasonable ground for bringing claim.
This action has a long and winding history through different tribunals and courts in different countries. It springs from arbitration proceedings between the parties hereto initiated under the International Commercial Arbitration Act, Cap. 110 of the Laws of Barbados (“ICAA”) and conducted under the aegis of the International Centre for Dispute Resolution (“the ICDR”).
Those arbitration proceedings (“the arbitration”) commenced in July 2009. To date, for reasons which will become clear, they have not yet been completed.
After hearings by Henri C. Alvarez, the first respondent herein (“Alvarez”) and the arbitrator appointed by agreement of the parties, he issued a Partial Award on liability on 29 March 2011. He found that the claimant, Auto-Guadeloupe Investissement S.A.S (“AGI”), had reached a binding oral agreement to sell Global Caribbean Fibre a company in which AGI owns 60% and Caribbean Fibre Holdings LP (“CFH”) 40% to Columbus Acquisitions Inc. and Columbus Holdings France S.A.S (together called “Columbus”) and that AGI had breached the agreement. He directed the parties to proceed to a second phase of the arbitration to address, among other things, the question of damages arising from AGI's breach of the oral agreements.
Subsequent to the making of the Partial Award by Alvarez AGI made several applications first to Alvarez himself, then to the Court of Appeal of Barbados in its original statutory jurisdiction under the provisions of the ICAA in a suit shortly instituted as No. 11 of 2011 and to the ICDR all with the object of removing Alvarez as the arbitrator, setting aside his Partial Award and staying the arbitration on the basis of an alleged lack of impartiality and bias on the part of Alvarez.
These applications all proved unsuccessful. However, in the face of the challenge mounted by AGI against Alvarez, he resigned of his own accord. The question of his removal, therefore, became moot in the proceedings before the Court of Appeal in Suit No. 11 of 2011.
Upon the resignation of Alvarez, Michael Lee (“Lee”), the second respondent, was appointed by the ICDR as arbitrator to continue the arbitration, notwithstanding the objections of AGI. Once more, AGI made another application to Lee for a stay of the Arbitration and challenged Lee's jurisdiction to continue to the damages phase of the Arbitration on the same basis of the lack of impartiality and independence of Alvarez due to his undisclosed conflicts of interest.
Confronted by its failure to have the Partial Award set aside and the arbitration stayed, AGI changed course. It commenced the present action against Alvarez, Lee and the Attorney General of Barbados (“the A.G”) under section 24 of the Constitution of Barbados by Fixed Date Claim Form filed 6 February, 2013 supported by a statement of claim of even date.
By an Application Without Notice For Stay of Arbitration Proceedings filed on 14 February 2013 AGI sought, inter alia, an order that:
(1) all proceedings pending before Arbitrator Michael Lee (“Lee”) pursuant to a Partial Award on Liability handed down on 29 March, 2011 (“the Award”) and rendered by the Sole Arbitrator Henri C. Alvarez (“Alvarez”) in an international commercial arbitration (“the Arbitration”) that was commenced in July 2009 in the American Arbitration Association's International Centre for Dispute Resolution (“the ICDR”) between Columbus Acquisitions Inc., Columbus Holdings France S.A.S (together with Columbus Acquisitions Inc., “Columbus”); Caribbean Fibre Holdings L.P. (“CFH”) and the claimant, be stayed forthwith pending the hearing and determination of the proceedings filed herein or until further order.
It is this Application Without Notice (“the Application”) that is the subject matter of this decision.
When the Application came on for hearing, Columbus and CFH, who were not made parties to the substantive action, appeared nonetheless by Counsel, having learnt of the impending hearing.
Over the strong objections of AGI and on an Application for joinder having been made, Columbus and CFH were on 4 April 2013 granted leave to be joined as parties to the action. They have been so joined as the fourth, fifth and sixth respondents. On the same day AGI filed an Amended Fixed Date Claim Form and Amended Statement of Claim.
Filed contemporaneously with and in support of the Application is an affidavit of Dennis Lesueur, President and Chief Executive Officer of AGI. That affidavit recounts, inter alia, the several challenges earlier referred to of AGI to the Partial Award; the basis of those challenges; the objection to the appointment of Lee as a substitute arbitrator; the challenge to his jurisdiction to continue the Arbitration and the application for a stay of the Arbitration and the setting aside of the Partial Award.
On 22 March, 2013 and prior to the joinder of the fourth, fifth and sixth respondents as parties to the action, the A.G filed an application by notice for an order that the Fixed Date Claim Form and the statement of claim filed by AGI on 6 February, 2013 be struck out as disclosing no reasonable cause of action. This application was supported by an affidavit of Dr. Corlita Babb-Schaefer, Counsel for the A.G, also filed on 22 March 2013. An amended Notice of Application together with a somewhat expanded affidavit was filed on 2 April 2013.
Consequent upon the joinder of the fourth, fifth and sixth respondents, the sixth respondent on 7 May 2013 filed a Notice of Application, inter alia, for an order that the claim of AGI be struck out as an abuse of the court's process on the basis inter alia that:
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(i) the grounds relied on and the relief sought by AGI in its Fixed Date Claim Form filed on 6 February 2013 and the Application are substantially the same as those sought by AGI before the Barbados Court of Appeal No. 11 of 2011 by way of Amended Fixed Claim Form filed 21 November 2011 and Notice of Application filed 17 September 2012;
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(ii) the Court of Appeal dismissed AGI's application for a stay of proceedings on 2 October 2012;
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(iii) Arbitrator Michael Lee also heard and determined a challenge by AGI to the Partial Award of Alvarez on the grounds of apparent bias and failure to disclose and also dismissed AGI's application for a stay of proceeding on 4 October 2012; and
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(iv) AGI's present claim is a collateral attack on the decisions of the Court of Appeal and Arbitrator Lee.
By a Notice of Application filed on 10 May 2013, the fourth and fifth respondents also sought an order that the Amended Fixed Date Claim Form and Amended Statement of Claim filed by AGI on 4 April 2013 be struck out as an abuse of process of the court on the grounds that:
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(i) Adequate means of redress are or have been available to AGI under a law other than s. 24(1) and (2) of the Constitution of Barbados.
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(ii) AGI is, by its Amended Fixed Date Claim Forms filed in the Court of Appeal on 21 November 2011, pursuing adequate alternative means of redress under the ICAA, seeking relief identical to that sought herein which said Amended Fixed Date Claim Form is yet to be heard and determined.
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(iii) The Court of Appeal on 2 October 2012 dismissed AGI's application for an order that all proceedings before Arbitrator Lee be stayed forthwith pending the determination of its application filed on 17 September 2013.
No formal application was made to strike out the action on behalf of the first respondent. However, Counsel for the first respondent, Mr. Patterson Cheltenham, Q.C. filed written submissions in support of those filed on behalf of the A.G and adopted the submissions of Counsel for the A.G, Dr. Babb-Schaefer.
The issues which arise for the Court's determination are twofold:
- Should the statement of case in this claim be struck out under the provisions of Part 26.3 (3) of the Barbados Supreme Court (Civil Procedure) Rules, 2008 (“CPR”) either on the ground that the statement of case is an abuse of the process of the court or on the ground that the statement of case discloses no reasonable ground for bringing the claim; and 2. In the event the Court is satisfied that the statement of case should not be struck out, should an order be made in the terms sought by AGI in the application and set out at para. 8 above.
Part 26.3(3) of the CPR insofar as material gives to the Court wide powers exercisable at a case management conference or otherwise upon an application on notice to strike out a statement of case or part of a statement if it appears to the Court:
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a) that the statement of case or part to be struck out is an abuse of the process of the Court…
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b) that the statement of case or part to be struck out discloses no reasonable ground for bringing…. a claim.
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