Pauline Stoute v Courtney Dacosta Catwell
| Jurisdiction | Barbados |
| Judge | Holder, J. |
| Judgment Date | 17 December 2019 |
| Neutral Citation | BB 2019 HC 35 |
| Court | High Court (Barbados) |
| Docket Number | No. 1286 of 2016 |
| Date | 17 December 2019 |
High Court
Holder, J.
No. 1286 of 2016
Mr Patrick Phillips, Attorney-at-law for the Claimant
Ms Grace McCaskie, Attorney-at-law for the Defendant
Civil Practice And Procedure — Whether Section 58 of the Limitation of Actions Act, Cap. 231 was applicable to the claim.
At case management conference, Counsel for the Defendant raised the preliminary point that the Claimant's Claim form and Statement of Claim were filed outside of the six-year period of limitation stipulated by section 6 of the Limitation of Actions Act Chapter 231. In an application filed subsequently Counsel asked the court to strike out and dismiss the said Claim form and Statement of Claim for being filed in breach of the section and for being false and without merit.
The latter issues however raise questions of fact which must be determined at the trial stage.
In a Claim form and Statement of Claim which were filed on 26th September 2016, the Claimant sought damages for fraudulent misrepresentation and alternatively, for the return of $51,000.00 which the Claimant transferred to the Defendant's bank account, special damages, interest and costs.
The Claimant resides in the United States of America. The Defendant formerly resided there as well but is now residing in Barbados. According to the Claimant, in October 2008 while in the U.S.A., the Defendant offered to “secure certain investment” via a term deposit for the Claimant and her husband.
She was induced to enter a contract and pay over the money to the Defendant who falsely represented that he was employed as a bank manager at the Bank of Nova Scotia and that he could secure the said investment. Consequently she gave her bank instructions, on 22” October, 2008 and 8th December, 2008, to transfer the monies to the Defendant's bank account.
She also alleged that the Defendant knew that the representation was false and that he was not a bank manager at the Bank of Nova Scotia or any other financial institution.
The Claimant tried unsuccessfully to have the bank restore the money to her account on 29th July, 2009. In December 2009, she orally requested the Defendant to repay the $51,000.00. He has not done so. She has not received the term deposit and as a result has suffered loss.
In the Defence and Counterclaim which was filed on 31st October, 2016, the Defendant disputed the claim on the ground that it was a total fabrication, without merit and also that the period of limitation had expired.
He also stated that in 2009 the Claimant telephoned his sister and himself and told them that his estranged wife Joycelyn Catwell, who was the Claimant's business partner and friend, owed her money. At that time Mrs Catwell was and still is in prison at the Lowell Correctional Institution in Florida, USA. having been sentenced to serve 40 years imprisonment for fraudulent “business” transactions.
The Defendant counterclaimed for defamation and emotional distress which he suffered as a result of being falsely accused by the Claimant and the fact that he had to retain Counsel to prepare a Defence in this matter. He sought damages, legal fees, costs and interest.
The Claimant's Reply and Defence to Counterclaim was filed on 7th November, 2016. The Claimant took the opportunity to enlarge the facts of her claim. It was clear that she was not responding to the Defence.
The Claimant stated that she had no business experience with respect to investment in Barbados and the Defendant acted as her financial advisor and he held her trust and confidence. She stated that the money which was transferred to the Defendant's account “was procured by undue influence exerted by the Defendant acting in a fiduciary position.”
It was also stated that the Claimant was entitled to maintain this action notwithstanding the period of limitation had expired.
The Claimant denied that the statements made were defamatory of the Defendant, stated that they were true in substance and fact and that the Claimant would rely on section 7 of the Defamation Act. She also pointed out that the Defendant did not identify the precise words complained of. The Claimant also denied the allegations in the counterclaim, that the Defendant suffered loss and was entitled to any of the relief being sought.
Ms McCaskie argued that the Claimant had six years to file her claim under the Limitations of Actions Act Chapter 231 and that the period of limitation had expired since 2014. She devoted much of her submission to the facts of the case. She contended that the Defendant had no knowledge about this matter and was being falsely accused by the Claimant whom he hardly knows and with whom he had no conversation or correspondence concerning that money.
She suggested that there was a conspiracy, between the Claimant and the Defendant's estranged wife to take money out of the United States, which backfired. She further suggested that the Claimant is trying to extract money from the Defendant because the Defendant's estranged wife is now serving time in prison in the United States.
Ms McCaskie contended that the Claimant was an astute business woman and it was not likely that she would have taken so many years to take action about her investment. She said that the Defendant had referred this matter to the Fraud Squad for investigation.
She asked that the matter be dismissed for being filed outside of the limitation period.
Mr Phillips contended that the Claimant is seeking equitable relief. She wants to have her $51,000.00 restored to her. Consequently the time limit set out in section 14 of the Limitation of Actions Act Chapter 231 is not applicable. He submitted that the claim falls within the statutory exceptions to section 58 of the said Act.
He emphasised what was stated in the Reply. He said that the Defendant acted as financial advisor to the Claimant and as such occupied a fiduciary position. He argued that she had no business experience and she consulted the Defendant. In addition to the fact that the Defendant was acting in a fiduciary position, Counsel submitted that he exerted undue influence over the Claimant.
Mr Phillips, like Counsel for the Defendant, spent some time in discussion of an enlarged version of the facts over what was provided in the Statement of Claim. He claimed that the Defendant was introduced to the Claimant under the name Courtney Brewster and she did not know that he was married to Joycelyn Catwell who was also known by other names, until the latter was arrested by the FBI.
He said that the Claimant would testify that she transferred the money to the Defendant's account by reason of his professional acumen and financial expertise as a financial advisor. He identified himself as a bank manager and she acted on this. He concluded that the Defendant as the Claimant's financial advisor was acting in a fiduciary relationship.
He referred to the following definition of “fiduciary”.
“A relationship is termed fiduciary if one party owes a duty to act with care and good faith in the interests of the other party. Looking at it the other way, a relationship is fiduciary if, aside from and legal duties arising out of contract or tort, the latter party relies on the former. A fiduciary duty can only exist in relation to: (a) the subject of the relationship; or (b) undue influence. The relationship of trustee and beneficiary, for example, is fiduciary. The trustee owes the beneficiary a duty to act in a fiduciary manner (i.e., carefully and in good faith in the interests of the beneficiary, of all the beneficiaries if there are several) in respect of the trust, and must not exercise undue influence over the beneficiary, but owes no universal duty. If the beneficiary is a solicitor employed by the trustee in the trustee's personal affairs, the fiduciary duty is in the opposite direction in respect of the professional relationship. Some relationships are, by their nature, always fiduciary; some relationships, such as banker and customer, are not normally fiduciary but may be so in particular circumstances. Banker and customer are usually related only as debtor and creditor, or the other way round, but a banker may undertake more for a customer than keeping his account.”
Having concluded that the relationship was termed fiduciary, Mr Phillips argued that the Defendant was liable to account. He quoted Halsbury's Laws of England, 5ill edition, Volume 68, paragraph 1151 in support. He cited North American Land Co. v. Watkins [1904] 1 Ch. 242.
Mr Phillips submitted that the “legal import” of section 58 of the Limitation of Actions Act Chapter 231 is a “replica” of section 21 of Limitation Act 1980 UK because both provided specific statutory exceptions to the six-year rule, the former with respect to equitable relief and the latter a breach of trust.
He further contended that the Defendant was a constructive trustee because he procured the money transfer to his bank account by false representation.
He stated that where a person holds property in circumstances in which equity and good conscience require that it should be held or enjoyed by another, he will be compelled to hold the property in trust for that other. He also cited Hussey v. Palmer (1972) 1 W.L.R. 1286.
He argued that once it was established that the claim fell within the statutory exceptions, there was no maximum period beyond which equitable relief could be granted but a 20-year period might be taken as a convenient guide. He cited Weld v. Petre (1929) 1 Ch. 33.
Mr Phillips asked that the Defendant's application be dismissed with costs.
Ms McCaskie stressed that the matter was a total fabrication. She submitted that the cases cited were...
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