Kim Medford v Linda Prosper

• Jurisdiction: Barbados
• Judge: Madam Justice Shona O. Griffith
• Judgment Date: 17 August 2020
• Neutral Citation: BB 2020 HC 38
• Court: High Court (Barbados)
• Docket Number: Civil Suit No: 871 of 2019
• Date: 17 August 2020

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Before:

The Hon. Madam Justice Shona O. Griffith, Judge of the High Court

Civil Suit No: 871 of 2019

Between:

Kim Medford

First Claimant

Kadija Medford

Second Claimant

and

Linda Prosper

First Defendant

James Prosper

Second Defendant

Reba Euline

Third Defendant

Harcourt Gill

Fourth Defendant

Appearances:

Ms. Kim Medford, 1 ^st Claimant in person.

Mr. Omari Drakes for the 1 ^st and 2 ^nd Defendants.

REASONS FOR DECISION

1 The Court delivered its oral decision in this matter on the 17 ^th August, 2020. On the conclusion of the proceedings the Claimant Kim Medford indicated her intention to appeal. As a consequence the Court has reduced its reasons into writing. The Claimant Kim Medford brought proceedings against the four defendants by filing a notice of application in form 10, supported by an affidavit both filed on July 1 ^st, 2019. The proceedings which also named Kadija Medford as a claimant, were brought against Linda Prosper and James Prosper (1 ^st and 2 ^nd Defendants) as agents for Reba Eulin (3 ^rd Defendant). Harcourt Gill was named as the 4 ^th Defendant on the basis of legal advice allegedly provided to the 1 ^st and 2 ^nd Defendants.

2 Further to the notice of application, on the 24th day of July, 2019 the Claimant filed a claim form and statement of claim in which she alleged that in April, 2009 whilst she was overseas, the 1 ^st and 2 ^nd defendants without her permission, entered the property she was renting from the 3 ^rd Defendant and removed personal and household items belonging to her and her daughter. The Claimant says she returned to the country having received a report concerning the entry into her premises, and between April and October, 2009 she thereafter discovered more items missing from her premises.

3 The Claimant made a report to the police about the unlawful entry to her premises and removal of her property, but according to her, no action was taken. The Claimant also alleges that the 1 ^st and 2 ^nd Defendants agreed to compensate her for the items removed from her premises. There was no compensation paid however, and after several years of the Claimant's demands for action, the 2 ^nd Defendant was charged for theft in 2017 and pleaded guilty to removing a telephone and answering machine from the Claimant's premises. The 2 ^nd Defendant was reprimanded and discharged by the magistrate, but no order for compensation was made against him. The Claimant initiated these proceedings in July of 2019 just shy of 10 years after the incident occurred, according to her case, in April, 2009.

4 In November, 2019 the Claimant's Notice of Application was dismissed by order of court, in her absence. The Claimant in December, 2019 applied for the dismissed Notice of Application to be reinstated (pursuant to CPR Rule 11.15). In July, 2020 the Claimant also orally requested permission to renew the claim form and to serve the 3 ^rd Defendant overseas, as the Court pointed out that her service on the 3 ^rd Defendant by registered post without permission was ineffective. These oral requests have not yet been attended to by the Court as Counsel for the 1 ^st and 2 ^nd Defendant sought and was granted permission to make an oral application to strike out the Claimant's proceedings. If the application to strike are successful, there would thereafter be no need for the Claimant's oral requests to be considered.

5 The 1 ^st and 2 ^nd Defendants' oral application to strike was heard on Monday August 10 ^th 2020. The sole ground of the application was that the Claim is statute barred under the Limitation of Actions Act, Cap. 231 of the Laws of Barbados (‘The Limitation Act’). The plea of limitation was based on the facts pleaded in the Claimant's statement of case (which comprised her claim form, statement of claim and affidavit filed in support of the notice of application which had already been struck out). Counsel for the 1 ^st and 2 ^nd Defendants submitted that according to the Claimant's case, her cause of action was at best one of trespass, which as a tort, is subject to the limitation of six (6) years, as provided in section 6 of the Limitation Act. Having occurred in April of 2009 or at best in October 2009 when the Claimant says she discovered more items missing, the Claimant's cause of action would have become statute barred in October of 2015.

6 The Claimant's reply to the application to strike out on the ground of limitation engaged several sections of the Limitations Act. The first was section 3, which applied to the Claimant's daughter who was minor at the time of the trespass and as such under a disability. Section 46 of the Act thereafter provides that a minor's cause of action does not begin to run until the disability is overcome. Counsel for the 1 ^st and 2 ^nd Defendants responded to this argument by indicating that by the Claimant's own case, the Claimant's daughter would have become an adult at least by April, 2012, it being pleaded that she was 1 year old in 1995 and 14 years at the time of the action complained of in April, 2009.

On the Claimants' own case therefore, Counsel submitted that the 2 ^nd Claimant's limitation would have expired sometime in 2018. Notwithstanding section 3 of the Limitation Act, the 2 ^nd Claimant's claim filed in July, 2019 was nonetheless statute barred.

7 The Claimant also referred to section 54 of the Limitation Act which speaks to latent damage and economic loss. The Claimant pointed out that her claim consists of loss arising as a result of the damage to her property. For example — loss of income from interior design supplies which she alleges were removed from the premises; as well as income arising from what seems to amount to subletting to students, occasioned by the removal of her telephone and answering machine. Counsel for the 1 ^st and 2 ^nd Defendants responded that latent damage within the contemplation of section 54 meant damage arising after the fact, for example, in the sphere of construction. On the Claimant's case, there was nothing pleaded that amounted to latent damage within the context of the section.

8 The Claimant also directed the Court's attention to section 58 of the Limitation Act, which excludes application of certain limitation periods from actions for specific performance, inter alia, in respect of actions founded in simple contract. The Claimant said her claim included an action for specific performance of a simple contract, insofar as it sought performance of her agreement with the 1 ^st and 2 ^nd Defendant, for compensation of the items they removed from her premises. Counsel for the 1 ^st and 2 ^nd Defendants countered that on the Claimant's case, there was no legally enforceable agreement for compensation which could be identified. Specifically, counsel referred...