Dane Fevrier v BDSL Limtied Trading as Royalton St. Lucia Hotel Resort and Spa

• Jurisdiction: Caribbean States
• Judge: Pariagsingh, M
• Judgment Date: 18 May 2022
• Judgment citation (vLex): [2022] ECSC J0518-1
• Docket Number: Claim No. SLUHCV2021/0308
• Court: Eastern Caribbean Supreme Court

Between

Dane Fevrier

Claimant

and

BDSL Limtied Trading as Royalton St. Lucia Hotel Resort and Spa

Defendant

Claim No. SLUHCV2021/0308

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Civil Division

Appearances:

Lydia B. Faisal for the Claimant; and

Ann – Alicia N. Fagan and Fidel Michel for the Defendant.

DECISION

Defendant's application to strike out claim and for summary judgment

Pariagsingh, M

1 — Before the Court is the Defendant's application 1 seeking an order that:

• a. The causes of action of wrongful arrest, false imprisonment, unlawful search and defamation as contained in the Claim Form and Statement of Claim filed 21 July 2021 be struck out and particularly as follows:

  • 1. Paragraph (5) sub-paragraphs (3) – (9) of the Claimant's Statement of Case be struck out on the basis that they do not disclose any reasonable ground for bringing the Claim.

  • 2. Paragraph (8) sub-paragraphs (2) – (5) of the Claimant's Statement of Case be struck out on be basis that they do not disclose any reasonable ground for bringing the Claim.

  • 3. The remedies claimed at paragraph 9 sub-paragraphs (3) – (6) are struck out on the basis that the parts of the statement of case sustaining the claims have been struck out.

• b. A Declaration that the Court does not have jurisdiction to deal with the remainder of the Claim and the matter ought to be remitted to the Labour Tribunal.

• c. The Defendant/Applicant be awarded costs on the Application and in the Claim to be assessed.

2 In response to the application the Claimant filed an affidavit in reply 2. The contents of this affidavit treat with the portion of the application seeking summary judgment. Most of the contents of this affidavit go towards the legal issue raised. It is therefore not necessary to refer to the affidavit in much detail in my respectful view, suffice to say, I have considered it.

APPLICATION TO STRIKE OUT:

3 The parties have carefully and correctly set out the law on striking out in their respective submissions. There is no need to reproduce it in great detail. It is common ground that the Court will strike out a portion of a party's statement of case if it discloses no grounds for the brining of the claim.

4 The striking out of a party's statement of case or any part of it is discretionary. The Court has a series of orders it can make in the exercise of its discretion to avoid deploying the nuclear option of striking out. Thom JA in Agnes Danzie et al V Cecil Anthony 3 at paragraph 13 stated the approach to be followed in applications such as this:

“It is a well-established principle that the court's power to strike out a statement of case should only be used sparingly ( Real Time Systems Limited v Renraw Investments Limited and Others [2014] UKPC 6). Also, in Salfraz Hussain v Birmingham City Council and Others the English Court of Appeal, in considering the exercise of discretion to grant relief from sanctions where judgment was entered in default, stated: ‘it must be kept in mind that discretionary powers are not to be exercised in order to punish a party for incompetence–they must be exercised in order to further the overriding objective’. In exercising his discretion, the learned judge was required to consider what was the appropriate response having regard to all of the circumstances, including whether there were other alternatives available that would be just in the circumstances.”

5 The Defendant in its submission have identified the issue to be determined as; ‘Whether the causes of action of wrongful arrest, false imprisonment, unlawful search and detention are properly constituted against the Claimant’ 4.

6 The Claimant in his submissions has identified the issues differently. The Claimant identified the issues on the striking out application as 5:

• a. Can an entity or individual apart from the State be liable for the actions of the Police such as occurred in this case?; and

• b. Whether in the absence of a claim filed independently in defamation, the Court is unable to grant damages for injury to reputation in an employment contract, where a breach of the implied term of mutual trust and confidence is alleged?

7 From the above, it is clear that the parties see the issue differently. The Claimant contends that the relief claimed are remedies available to him within his claim for breach of contract in relation to the alleged breach of his work contract. The Defendant on the other hand, views the pleaded case as separate causes of action for false imprisonment and defamation.

8 Paragraph 5 sub paragraphs 3 to 9 state that:

In breach of the said implied duty of mutual trust and confidence:

PARTICULARS

• 1. ………………

• 2. ………………….

• 3. Next, the Claimant was arrested by the police at the instance of the defendant, and informed that the police would proceed to his house to search for the items that he was accused of stealing from the Defendant. He was then escorted to the rear seat of the police vehicle on the Defendant's compound, in the presence of his work colleagues and guests.

• 4. The Claimant requested permission to drive his own vehicle which, at the material time, was parked on the Defendant's compound. The police permitted him to do so, but an officer sat in the front passenger seat of the Claimant's vehicle, since he was under arrest.

• 5. The Claimant's house was searched in the presence of his 13-year old daughter whilst onlookers gathered near his house, seeing the police vehicle and police officers near the home of the Claimant.

• 6. At no time was a search warrant shown to the Claimant, neither does the claimant believe that a search warrant was ever obtained for the conduct of a search of his home.

• 7. The police officers, acting on the Defendant's orders and instructions, and in full view of onlookers, took away the 40 bottles of the wines/spirits/liquor/rum that the Claimant, as a collector of fine wines, had accumulated over more than ten-years. The said collection had great sentimental value to the Claimant and cannot be adequately compensated in money. The police officer then drove the Claimant to the police station in Gros Islet, taking the confiscated items with them.

• 8. At the police station, the Defendant's Cost Controller and its Chief Security Manager untruthfully claimed that they had identified 14 of the Claimant's bottles of wines/spirits/liquor/rum as the property of the Defendant. However, all of the 40 bottles were confiscated.

• 9. The Claimant was taken to the Gros Islet Police Station, where he was locked in a cell from Thursday 14th June 2018, at approximately 2:45p.m. until about 11:00a.m. on Friday June 15th 2018.

9 The Defendant contends that the lawful authority for an arrest is found in section 3(2) (e) of the Constitution 6. It is further submitted that Section 570(3) of the Criminal Code 7 gives a police officer the power of arrest without a warrant anyone whom he or she with reasonable cause, suspects committed the offence.

10 The Defendant further submitted that the Constitution does not bind private individuals and only concerns any action between the State and the individual. Reference is made to the decision of Shamal Charles v The Attorney General 8, Danny Edwidge v The Attorney General 9 and Rudolph Dosserie v Renwick & Company 10.

11 I agree with the law stated by the Defendant. The only authority I consider to be of any assistance from the Defendant on the issue that I have to decide is the case of Rudolph Dosserie. All the other cases relied on do not treat with the issue of informant liability for false imprisonment, which is the Claimant's pleaded case.

12 Least there be any doubt the claim is not for damages for false imprisonment by the Police. The Claimant's case is for false imprisonment arising out of the reports he contends was made to the police by the Defendant's employees on which the police had a duty to act and did so.

13 The Defendant's submission seems to appreciate the nature of the Claimant's case when it accepts at paragraph 13 of its submission that Rudolph Dosserie “is instructive as it concerns an almost fact pattern” 11.

14 The Defendant then seems to shift gears even further and now says, informant liability is not made out on the claim as “On a close examination of the claim, it is evident that it is devoid of any pleadings as to the material facts which gave rise to the cause of action of vicarious or informant liability” 12.

15 In response the Claimant relies on the cases of Barkhuysen v Hamilton 13 to ground his submission that there is no requirement

“……for some act or some words amounting to a demand, a request or an urging of the police to take action, it being enough that the informant had made a charge on which it had become the duty of the police to act; that, addressing the issue as one of substance rather than form, the defendant was liable because she had placed the police in a position where it had been their duty to act as they did so that the arrest and detention had, in practice, been inevitable consequences of her report to the police, which had lacked any reasonable objective basis..”

16 Having considered both submissions, I agree with the Claimant. The Claimant's case is that “[He] was arrested by the police at the instance of the defendant..” 14 in its plainest form, that is a claim for informant liability. It has nothing to do with the State, police, the powers of arrest or the Constitution as alluded by the Defendant. The Defendant's reference to the power of arrest and the Constitution takes the claim way outside of the pleaded case.

17 For these reasons, I find no merit in the objection to paragraph 5 sub paragraphs (3) to (9) of the statement of claim.

CONSTITUTIONAL BAR TO PROCEEDINGS AGAINST THE CROWN:

18 The Defendant in its submissions also addressed Article 2124 of the Civil Code 15 which deals with the...