Paradise Beach Ltd and Paradise 88 Ltd v Edghill and Patel

• Jurisdiction: Barbados
• Judge: Moore, J.A.
• Judgment Date: 12 December 2012
• Neutral Citation: BB 2012 CA 15
• Court: Court of Appeal (Barbados)
• Docket Number: Civil Appeal No. 10 of 2011
• Date: 12 December 2012

Court of Appeal

Moore, J.A.; Mason, J.A.; Burgess, J.A.

Civil Appeal No. 10 of 2011

Paradise Beach Limited and Paradise 88 Limited

and

Edghill and Patel

Appearances:

Elliott D. Mottley and Co. attorneys-at-law for the appellants

Mr. Randall Belgrave, Q.C. attorney-at-law for the respondents

Civil practice and procedure - Pleadings — Striking out parts of claim.

INTRODUCTION

Moore, J.A.

1 On 14th September, 2012 we dismissed this appeal and promised to give our reasons in writing. We no do so.

2 This is an appeal against the order of Master Roberts of 30th May, 2011 whereby he ordered that the “prayer of the defendant numbered 1 relating to relief under section 34(2) of the Legal Profession Act be struck from the claim, similarly the first claim in the Claim Form.”

FACTS

3 The appellants are joint developers of a hotel and residential villas at Paradise Beach, Freshwater Bay, Black Rock, St. Michael. The respondents are attorneys-at-law who were retained by the appellants for the provision of legal services. It seems that there was a falling out between the parties and the appellants terminated the respondents' services.

4 By letter dated 19th May, 2010, Mr. Randall Belgrave, Q.C., of counsel for the respondents, wrote to Clarke Gittens and Farmer, attorneys-at-law for the appellants, with reference to invoices sent to the appellants in the sum of $588,500 plus value added tax (VAT) in the amount of $52,500.

5 On June 7th, 2010 Mr. Avinash Persaud, Executive Chairman of Paradise Beach Limited, replied to Mr. Belgrave's letter as follows:

“PARADISE BEACH LTD

June 7th, 2010

Mr. Naeem Patel

Old College Chambers

The Courtyard

Hastings

Christ Church

Dear Mr. Patel,

We acknowledge the existence of your invoices in the amount of BDS 621,000.00. As previously mentioned to you, we intend to settle as follows:

BDS 200,000 will be paid on closing of the Esso Contract from Tranche C (Esso Tranche) of the Loan from Ansa Merchant Bank Limited

The remaining BDS 421,000 will be paid from Tranche D (Unsecured Creditors Tranche) of the Loan from Ansa Merchant Bank Limited

We would appreciate it if you would please forward to us all the documents and/or files relating to the Paradise Group of Companies.

Sincerely,

PARADISE BEACH LTD

Avinash Persaud

Executive Chairman.”

6 On 5th July, 2010 Mr. Belgrave wrote to Mr. Persaud stating, inter alia;

“Notwithstanding the unequivocal acknowledgement of the debt due and owing to my client, as set out in the second sentence of your said letter, I am constrained to reject your proposed terms of settlement of the debt confirmed to be due”, for the following reasons:

• 1. As regards the fees payable in respect of the Esso transaction, these had been unequivocally acknowledged in writing as far back as the summer of 2009, during the course of the Maybach Corporation due diligence process. Old College completed all of the work in respect of that transaction and the fact that the purchase was not completed was due to no fault on its part.

• 2. Old College has been assured on numerous occasions in the past that all sums due and owing to it would be paid in full, and out of the first tranche of the disbursement funds, following the completion of the lending transaction involving Ansa McCal and the Government of Barbados. My client therefore fully expects that these assurances will be honoured.”

PLEADINGS

7 On 24th August, 2010 the claimants issued a Claim Form and Statement of Claim for permission to commence an action under section 34(2) of the Legal Profession Act, Cap. 370A ( LPA) to recover the amount of $588,500 plus VAT in the amount of $52,500 from the appellants together with interest and costs.

8 By paragraph 10 of their Statement of Claim the respondents plead as follows:

“By letter dated 7th June, 2010 the first claimant acknowledged. Admitted and agreed as being due and owing the said sum of $588,500.00 plus Value Added Tax thereon in the sum of $52,500.00 giving a total value of $641,000.00 but proposed terms of settlement which are not acceptable to the claimant in that, inter alia, such terms would result in undue and unreasonable delay in the claimants obtaining payment. A true copy of the said letter is appended hereto as Appendix “B”.

Clearly the words “first claimant” appearing in paragraph 10 of the respondents (then claimants) Statement of Claim are erroneous and should be “first defendant”.

9 On 22nd September, 2010 the defendants filed a defence pleading, inter alia,

• “2. The defendants state that the Statement of Claim filed in this action by the claimants is barred by virtue of section 34(1) of the Legal Profession Act, Cap. 370 of the Laws of Barbados.

• 3. … The defendants have put in place or are about to put in place loan financing guaranteed by the Government of Barbados and shall liquidate all liabilities due and owing. The claimants are aware of this facility being put in place.

• 7. The defendant deny that they agreed and admitted to owing the amount claimed by the claimants as alleged in paragraph 10, of the Statement of Claim. The defendants aver that they acknowledged receipt of the invoices.”

Paragraph 5 of the said defence admits that the respondents carried out legal services for the appellants but states that the fees charged were exorbitant and paragraph 9 denies that the claimants (respondents) are entitled to the sums claimed or any part thereof.

10 On 9th May, 2011 the respondents filed a joint witness statement comprising twenty-five pages with seventeen pages of exhibits appended thereto.

11 On 24th March, 2011 the appellants also filed a Notice of Application to strike out or stay the claimants' Statement of Claim. The Notice was accompanied by an...