[1] Attorney General [2] The Commissioner of Police v Geraldine Cabey

• Jurisdiction: Montserrat
• Judge: GORDON, J.A. [AG],Justice of Appeal [Ag.],Michael Gordon, QC,Ola Mae Edwards,Indra Hariprashad-Charles
• Judgment Date: 12 January 2009
• Judgment citation (vLex): [2009] ECSC J0112-2
• Court: Court of Appeal (Montserrat)
• Date: 12 January 2009
• Docket Number: HCVAP 2008/008

[2009] ECSC J0112-2

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal [Ag.]

The Hon. Mr. Michael Gordon, QC Justice of Appeal [Ag.]

The Hon. Mde. Justice Indra Hariprashad-Charles Justice of Appeal [Ag.]

HCVAP 2008/008

Between:

[1] The Attorney General

[2] The Commissioner of Police

Appellants

and

Geraldine Cabey

Respondent

Appearances:

Mr. Dane Hamilton Q.C. with Ms. Shona Griffith for the appellants

Mr. Kenneth Allen Q.C. holding papers for Mr. Jean Kelsick for the respondent

Civil Appeal — Claim of malicious prosecution — elements to satisfy such a claim — reasonable and probable cause — Part 26.3(1)(b), (c) Civil Procedure Rules 2000 (CPR) — non disclosure of cause of action — abuse of process of the court — Failure to satisfy the requirements of Part 8.7(1) CPR —

The respondent filed a claim in the tort of malicious prosecution and the appellants sought to dismiss it on the grounds that the statement of case of the claimant disclosed no cause of action and was an abuse of the process of the court. This application was dismissed and the appellants have appealed. The appellants' case on appeal was that the learned master misdirected herself on the issue of whether the pleadings before the court could, as a matter of law, satisfy the threshold requirement of want of reasonable and probable cause and that the respondent failed to satisfy the requirements of Part 8(7) of CPR 2000.

Held: dismissing the appeal and awarding costs to the respondent:

(1) That if the claimant was able to prove her allegations, there would be material for a court to determine whether malice existed on the part of the appellants and, if so, whether the threshold of reasonable and probable cause had been met.

(2) That the learned master's exercise of her discretion on the adequacy of the pleadings was in conformity with the decision of this court in East Caribbean Flour Mills Limited v Ormiston Ken Boyea and did not exceed the generous ambit within which reasonable disagreement is possible and therefore cannot be said to be clearly or blatantly wrong.

Michael Dufour et al v Helen Air Corporation Ltd et al Saint Lucia Civil Appeal No. 4 of 1995 delivered Feb. 12, 1996 followed.

GORDON, J.A. [AG]

1 At the commencement of the hearing of this matter learned Queen's Counsel Mr. Kenneth Allen rose to advise the court that at very short notice he was asked by learned counsel Jean Kelsick to hold papers for the latter as he, the latter, had to rush off to Antigua to attend on a close family member who had been struck gravely ill. Mr. Kelsick had also written to the Registrar to similar effect by letter dated the day of the hearing. The court is appreciative of the courtesy shown by Mr. Kelsick in the circumstances.

2 In addition to advising the court of his inability to attend, Mr. Kelsick indicated that he would be well content to have the court hear the matter on his written submissions. When the matter was put to learned Queen's Counsel, Mr. Hamilton, counsel for the appellants, he too indicated that he would be content to have the matter determined on the written submissions filed by both sides. In the circumstances the court advised that it would reserve its decision which would be arrived at, taking into account the written submissions of both sides.

3 On the 16^th December 2002, the 2^nd appellant laid an information before the magistrate for the territory against the respondent as a result of which the magistrate issued a warrant for the search of the respondent's dwelling house which warrant was duly executed. That was the start of a judicial process which resulted, at its various stages, in the respondent being arrested, charged, committed for trial, tried in the High Court, convicted and sentenced to two month's imprisonment (which sentence the respondent served) all on a multiplicity of charges. The respondent appealed to this court challenging her conviction and this court quashed all of the respondent's convictions.

4 In May of 2006, after the decision of the court of appeal, the respondent filed a claim form with a statement of claim attached. There were in fact a number of interlocutory applications by both sides before this stage was reached. Such applications do not, however, impact on the matter at bar. The essence of the respondent's claim against the appellants was a claim in the tort of malicious prosecution.

5 By application filed on 11^th October 2006, the appellants sought an order of the court dismissing the respondent's claim pursuant to Part 26.3(1)(b) and (c) of the Civil Procedure Rules 2000 (hereafter CPR) on the grounds that the claim did not disclose any cause of action and was an abuse of the process of the court. The application came before the learned master who dismissed the same. As a result, the appellants have filed an appeal to this court. The relevant part of CPR 26 reads as follows:

"26.3(1) In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that—

• (a) …;

• (b) the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a claim;

• (c) the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings; or…"

6 The learned master, in a succinct, written judgment, after recapitulating the arguments offered on behalf of both the appellants and the respondent concluded in the following terms:

"I have seen and examined the Claimant's pleadings and the further information filed on 6^th July 2006, and I have considered the submissions of counsel for the parties. What is disclosed in the pleadings, as well as in the further information as filed, fortifies my opinion that the Claimant's Claim is sufficiently particularized and that the allegations contained therein including the allegations of misconduct on the part of the authorities are questions of fact to be decided by a judge at trial. Facts need to be proved and evidence of those facts need to be filed and served. I am not inclined to the view that the case is a plain and obvious one for striking out at this stage when all the facts are not yet before the court. In relation to want of reasonable and probable cause, it is common ground that it is a matter for the judge at trial to determine whether there was reasonable and probable cause. If a claimant in a claim for malicious prosecution was indicted for more than one charge, it is sufficient for him to show that there was no reasonable and probable cause for some of the charges in the indictment, although there may have been cause for others. The prosecution of one of the charges was determined in favour of the Claimant and the Claimant need only to show reasonable and probable cause in...