Caribbean Communication Inc. et Al v The Nation Publishing Company Title: Ltd

• Jurisdiction: Barbados
• Judge: Williams, J.A.
• Judgment Date: 12 December 1996
• Neutral Citation: BB 1996 CA 47
• Docket Number: Civil Appeal No. 32 of 1995
• Court: Court of Appeal (Barbados)
• Date: 12 December 1996

Court of Appeal

Williams, C.J.; Chase, J.A.; Williams, J.A.

Civil Appeal No. 32 of 1995

Caribbean Communication Inc. et al

and

The Nation Publishing Co. Title: Ltd

Appearances:

Mr. L. Haynes in association with Ms. Tracy Codrington for the appellants.

Mr. A. Brewster in association with Ms. E. Jeffers for the respondent.

Practice and procedure - Order 14 application — High Court entered judgment under Order 14 against the defendant/appellant and in favour of the plaintiff/respondent — Judgment that the appeal was allowed — Defendants were granted unconditional leave to defend the action

Williams, J.A.

1 This is an appeal against a decision given by the Honourable Mr. Justice E. F. Belgrave in the High Court on the 15th November, 1995 whereby judgment was entered under order 14 against the defendants/appellants in favour of the plaintiff/respondent. The judgment was for $160,197.27 and interest thereon at 4 per cent per annum from the 27th May, 1992 until the date of judgment and thereafter at 8 per cent per annum until payment.

2 The plaintiff's claim is for work done and services rendered by the plaintiff for and at the request of the defendants. The material paragraphs of the statement of claim areas follows:–

“4. By agreement between the plaintiff and the second defendant represented by the first defendant, contained in or evidenced by correspondence between the parties, the plaintiff on or about the month of October, 1989 proceeded to print and produce a weekly newspaper known as ‘Caribbean Week’ on the instructions and at the request of the second defendant represented by the first defendant.

5. It was a term of the said agreement or alternatively the first and the second defendants severally and/or jointly warranted that it or they would pay the plaintiff on the production of weekly invoices for printing copies of Caribbean Week, including the cost of additional full colour portions, cost of stripping colour separations and miscellaneous charges.

6. Pursuant to the said agreement, the plaintiff on production of the invoices to the first defendant received part payments from both the first and second defendants, but in breach of the said agreement the first and second defendants severally and/or jointly refused and or neglected to pay the balance in the sum of $160,197.27 due to the plaintiff for the printing and producing of the weekly newspaper known as ‘Caribbean Week’ up to 31st October, 1991.

7. The plaintiff's claim against the first and second defendants severally and/or jointly is for the sum of one hundred and sixty thousand, one hundred and ninety-seven dollars and twenty-seven cents ($160,197.27) being the sum of money due and owing by the first and second defendants severally and/or jointly to the plaintiff in respect of work done and services rendered by the plaintiff to the first and second defendants at the request of the first and second defendants in this island from the 10th day of October, 1989 to October, 1991.

PARTICULARS

To amount due by the first and second defendants severally and/or jointly to the plaintiff for work done and services rendered in respect of printing and producing the publications of Caribbean Week in this island from the 10th October, 1989 and successive months up to October 1991 $160,197.27 made up as follows:

Balance brought forward

6th August, 1991 $182,865.27

Invoice #91 $ 5,500.00

Invoice #92 5,413.00

Invoice #93 5,735.00

Invoice #94 5,584.00 22,332.00

$ 205,197.27

Less payments received:

26th July, 1991 ($5,000.00)

14th August, 1991 ($5,000.00)

19th August, 1991 ($5,000.00)

23rd August, 1991 ($5,000.00)

30th August, 1991 ($5,000.00)

6th September, 1991 ($5,000.00)

16th September, 1991 ($5,000.00)

20th September, 1991 ($5,000.00)

27th September, 1991 ($5,000.00)

$45,000.00

$160,197.27

Full particulars of the aforesaid amount due have been previously supplied to the first and second defendants, exceed three folios and delivered herewith.”

3 After the defendants acknowledged service, the plaintiff took out a summons under order 14 for judgment against the defendants for the amount claimed in the statement of claim and costs. In support of that application, the plaintiff filed an affidavit by Robert Fowler, its Financial Controller, verifying the plaintiff's claim in the following terms:–

• “1. That I am the Financial Comptroller of the plaintiff company and as such can depose to the truth of the facts contained herein from my personal knowledge of the said facts and that I have authority to so depose on behalf of the said plaintiff.

• 2. Insofar as the facts and matter deposed to herein are within my own knowledge, they are true. Insofar as they are not within my knowledge, they are true. Insofar as they are not within my knowledge, they are true to the best of my information and belief.

• 3. That I have read a copy of the writ of summons and statement of claim filed herein on the 6th day of May, 1991 and the facts contained in paragraphs 1, 2, 4, 5, 6 and 7 of the statement of claim are true.

• 4. The first and second defendants severally and/or jointly are, and were at the commencement of this action, justly and truly indebted to the plaintiff in the sum of $160,197.27 for the value of services rendered by the plaintiff in respect of printing and publishing of the publications of Caribbean Week in this island from the 10th day of October, 1989 and successive months up to October, 1991. The particulars of the said claim appear by the statement of claim in this action together with the bundle filed therewith.

• 5. The first defendant up to and including the month of October, 19 …. indicated in writing to me that it through its Chairman was prepared to settle the outstanding moneys due to the plaintiff.

• 6. That from searches done on behalf of the plaintiff, on its instructions, by its attorneys-at-law, the plaintiff is aware that the first and second defendants are controlled in the majority by persons who are not citizens of Barbados and also not resident in this island. Further there is nothing to indicate that the first and second defendants severally and/or jointly own any real assets in Barbados and the plaintiff fears that should the first and second defendants decide to become insolvent it would be impossible to secure payment of the sum claimed in the statement of claim.

• 7. It is within my knowledge that the said amounts are still due and owing as aforesaid.

• 8. I verily believe that there is no defence to this action.

• 9. I make this affidavit in support of the summons for summary judgment filed herein on the 28th day of May, 1992.”

4 It should be noted in passing that, although paragraph 5 of Mr. Fowler's affidavit suggests in a vague way that the first defendant had given the plaintiff a written acknowledgment of liability, no such document was included in the Record of Appeal or mentioned in argument before us.

5 In opposition to the application, the defendants filed two affidavits by Timothy Charles Forsythe, the President and Publisher respectively of the defendant companies. The first affidavit was filed on the 3rd July, 1992 and a supplemental affidavit was filed on the 18th March, 1993.

6 In his first affidavit, after giving the background to the arrangements between the parties, Mr. Forsythe stated the position of the defendants in the following terms:–

• “4(ii) We initiated contact with the plaintiff company who seemed very keen to enter into a business relationship with us the President of that organisation, Mr. Harold Hoyte, was very helpful and later indicated that out business was timely since the plaintiff company would soon be upgrading their printing facilities with expensive state of the art technology.

• 4.(iii) On or about 11 July, 1989, Mr. Hoyte sent me a copy of a draft agreement. There is now produced and shown to me marked “TCF 1” a copy of that agreement. For the most part this was acceptable, but crucially, the plaintiff did not include in that draft agreement a clause covering what is commonly known as an author/printer arrangement. The essence of such an arrangement is that printing errors made by the author, the second defendant company herein, are the responsibility of the author and likewise, errors made by the printer, the plaintiff company herein, are the responsibility of the printer. Such an arrangement is standard practice in the commercial publishing/printing world.

• 4.(iv) After further discussions, about a week later Mr. Hoyte and I agreed that in the circumstances the best course of action for us to follow would be for me to sign a basic letter of intent until such time as we could reach full agreement. There is now produced and shown to me marked “TCF 2” a copy of this document dated 17 July, 1989. At the time the first defendant was not yet incorporated, nor was the second defendant registered as an external company under the Companies Act, Cap.308 of the Laws of Barbados.

• 4.(v) Under cover of a letter dated 28th September, 1989 Mr. Robert Fowler, Financial Controller of the plaintiff company, wrote to me enclosing, inter alia, what he called ‘… a final copy of the Printing Contract between ourselves.’ He then went on to claim that ‘all additional items have been included and outstanding matters have been resolved.’ This was really quite ridiculous. The only substantive changes that had been made when compared with the first draft agreement discussed in July were:

  • (i) under clause 5, which deals with increases in prices of newsprint, printing inks or local duties and taxes thereon, the period of 30 days was included with regard to the giving of notice of such increases;

  • (ii) under the first clause 9(3) {there being two clauses numbered 9} of this “final” agreement, the plaintiff company's right to terminate for unpaid invoices was extended from one month overdue to two months.

• 4.(vi) Also included under cover of the said...