Pearson Jerry Leacock v Republic Bank (Barbados) Ltd
| Jurisdiction | Barbados |
| Judge | Holder, M. |
| Judgment Date | 24 April 2019 |
| Neutral Citation | BB 2019 HC 28 |
| Date | 24 April 2019 |
| Docket Number | CV1714 of 2013 |
| Court | High Court (Barbados) |
High Court
Holder, M.
CV1714 of 2013
Mr. Emerson Graham, QC, Attorney-at-Law for the Claimant.
Mr. Michael Koeiman of Clarke Gittens Farmer, Attorneys-at-Law for the Defendant.
Legislation:
CPR R. 26.3(3)
Defamation Act, s.4
Civil Practice And Procedure — Striking out — Delay — Defamation — Breach of contract — Whether statement of case ought to be struck out for failure to disclose reasonable grounds for bringing claim — Whether triable issues
On 28th June 2016, the Defendant filed an Application in the following terms:
“The Defendant applies to the court pursuant to Rule 26.3 of the Supreme Court ( Civil Procedure) Rules 2008 for the following order:
(1) An Order that the Claimant's Claim herein inclusive of his Claim Form and Statement of Claim filed on September 30, 2013 and his Amended Claim Form and Statement of Claim filed on January 17, 2014 be struck out.
The grounds of the Application are:
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1. That the Claimant is in breach of an order made by Ms. Deborah Holder, BSS, the Master of the High Court on the 7th day of October 2014 (the ‘Order’), has failed to file and serve his List of Documents, Witness Statements, Statement of Facts and Issues or Listing Questionnaire on the Defendant by the dates stipulated therein or at all.
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2. The Defendant has complied with the said Order by filing its List of Documents on the 19th day of December 2014, Witness Statements of Darrell Wilson and Kaola Blackett (nee Haynes) on the 1st day of April 2015, Statement of Facts and Issues on 12th day of June 2015 and Listing Questionnaire on the 26th day of June, 2015.
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3. To date the Claimant has failed to comply with the said Order.
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4. The Claimant's Claim fails to disclose any reasonable ground for bringing the Claim.
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5. The Claimant's Claim for defamation fails to comply with the requirements of CPR 69.3”.
On 13th September 2013, the Claimant's Claim Form and Statement of Claim were filed. The Defendant was served on 10th October 2013. The Acknowledgment of Service of Claim Form was filed on 15th October 2013 and the Defence was filed on 4th November 2013.
On 17th January 2014, the Claimant filed an Amended Claim Form and Amended Statement of Claim and on the 4th March 2014, the Defendant filed its Amended Defence.
In his Amended Claim Form the Claimant sought the following:
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“1. A Declaration that the Defendant by its servant and or agents defamed the Claimant in his profession as an Attorney-at-law in private practice in Barbados.
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2. Breach of contract.
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3. Damages to be assessed and awarded.
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4. Costs.
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5. Further and other relief this Honourable Court thinks fit.”
The Claimant also claimed $150,000.00, Court fees of $16,000.00, Attorney's fixed costs on issue of $2,000.00, the total amount being $168,000.00.
In his Amended Statement of Claim, the Claimant also sought “An injunction to restrain the Defendant by itself, its servants, employees and/or agents or otherwise however from further publishing or repeating the said or similar words or any of them.”
On 7th October 2014 case management orders were given. List of Documents were to be filed and served by the 19th December 2014, inspection of documents was to be completed by 23rd January, 2015, Witness Statements were to be filed and exchanged by 3l March 2015, a Statement of Agreed Facts and Issues was to be settled and filed by 22nd May 2015 and, in the absence of agreement separate facts and issues were to be filed and served by 12th June 2015. It was also required that the Listing Questionnaire be returned to the Registrar on 7th June 2015 and pre-trial review was to be held during the month of July 2015.
On 16th December 2014, after case management orders were given and without leave of the court, the Claimant filed an “Affidavit in Response.” Counsel for the Claimant raised his objection to this.
On 11th August 2016, one year after the month for pre-trial review had passed and twenty-one months after the stipulated date, the Claimant filed his List of Documents. The Witness Statement of Pearson Leacock was filed on 5th October 2016.
On 23‘d January 2017 when the Defendant's application came on for hearing, the parties were ordered to file written submissions. The Claimant asked for an extension of time to file his Statement of Facts and Issues. He was given until 24th February 2017 to file the same. This he filed on 27th February, 2017.
The Claimant went to Barbados National Bank to withdraw $700.00 from his chequing account. He waited in line and when his turn came he proceeded to the teller and told her what he wanted and he attempted to use his ATM card to access his chequing account.
She asked to see his identification card before permitting him to use the ATM card. He questioned why he needed to produce his identification card as he had done similar transactions at other branches and this request was not made. The teller loudly responded, within earshot of about ten customers as follows: “There are people getting other people's pin numbers and getting money from the bank by fraud.”
He had to endure curious stares from other persons waiting in line and in the Bank in general. He then asked to see the Manager who came and reiterated the teller's position. He produced his Barbados Bar identification card but was told that only the Barbados identification card, passport or driver's licence were accepted. He told the Manager that the treatment was foolishness.
The Claimant then told the Manager that he was an Attorney-at-law and that he had two accounts at the Bank. The Manager told him that he could go outside and use the ATM machine “if he needed it so bad.”
When he asked why, the Manager told him that they were not “comfortable with him.” At the time the Manager made that Statement, all of the people in the Bank as well as staff members were looking at the Claimant suspiciously. This was said within earshot of customers. The Claimant felt embarrassed.
The manager also threatened that if the Claimant did not leave the Bank he would become a trespasser and he would call the police for him. He felt embarrassed and humiliated.
The Claimant finally showed the teller his Barbados identification card and was allowed to swipe his ATM card, whereupon the teller gave him his cash and he left the Bank. Neither the teller nor the Manager apologised to the Claimant and he left the bank in shame.
The Claimant saw several persons whom he knew from his days as a member of the Royal Barbados Police Force and as an attorney-at-law including a named G4S Security Guard who was on duty at the Bank. The latter patted him on his back as he passed and said: “Don't worry about it man.”
He was aware of the Bank's policy to allow the use of his ATM pin number as a means of identification and had done this several times at other branches.
In the Amended Claim Form the “Particulars of Defamation under Defamation Act” are as follows:
“The said words in their natural and ordinary meaning meant and were understood to mean:-
(a) That the Claimant was in the habit of engaging in fraudulent conduct to obtain money from the bank.
(b) That the Claimant was in the category of persons who illegally obtain the pin numbers of other persons and use them to get money from the bank by fraud.
(c) That the Claimant was a thief
(d) That the Claimant could not be trusted on face value and he appeared to be a dishonest person whose identify needed to be established before allowing any transactions with the Bank.
Further and in the Alternative the said words meant:-
(a) That the Claimant is a scammer.
(b) That the Claimant engages in the criminal conduct of obtaining money from the Bank by fraud.
(c) That the Claimant is a dishonest person who cannot be trusted to use his ATM card pin number as identification.
Particulars pursuant to Defamation Act (through its agent or servant)
(1) The Defendant spoke the words which were defamatory of the Claimant directly to him in the presence of members of the public and other Bank staff
(2) The words spoken by the Defendant (through its agent or servant) were untrue and designed by the Defendant (through its servant or agent) to inflict maximum damage to the Claimant's character and reputation.
(3) The words spoken by the Defendant (through its servant or agent) were defamatory of the Claimant and lowered the Claimant in the estimation of members of the public and Bank staff in the Warrens branch of BNB Bank on that day.
(4) In the premises, by reason of the publication of the words herein before pleaded at paragraph 4, the Claimant has been greatly injured in his credit, character and reputation and in his office as an Attorney-at-law and had been brought into ridicule and contempt.”
[22] The Defendant had its own version of events. The pleadings and the Statements of its witnesses detailed its perspective.
[23] The Defendant not only denied that any of the words complained of were used but that any words used by its servants or agents were defamatory or capable of bearing the meaning pleaded by the Claimant in its Amended Statement of Claim.
[24] The Defendant also denied that the words had a defamatory meaning or were capable of referring to the Claimant. Further, even if the words were defamatory it was unlikely that the Claimant would suffer any harm to his reputation by the use of those words.
[25] Moreover, the Defendant said that the words were true in substance and fact and that there were instances where persons used the pin numbers of others to fraudulently obtain money from the Bank. They intended to rely on such instances.
[26] It was admitted that the Claimant...
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