Action No CL 137/16
IN THE SUPREME COURT
TURKS AND CAICOS ISLANDS
DANIEL NINSSI PIERRE
Mr. Keith James for the Plaintiff
Mr. Wendall Swann for the Defendant
Heard on the 9th and 10th November 2016
BEFORE THE CHIEF JUSTICE, THE HON. MARGARET RAMSAY-HALE
1. The Plaintiff, Florise Joseph, a shopkeeper of Blue Hills, Providenciales, asserts that on 8 November 2015 she gave the Defendant, Ninssi Pierre, another shopkeeper, $11,000 to purchase beer for her in Florida. She alleges that Ms. Pierre did not purchase the beer as agreed and that she asked her to return the money given to her for that purpose which Ms. Pierre has failed or refused to do.
2. Ms. Joseph commenced proceedings in the Supreme Court on 30 June 2016 to recover the money. The claim is made in contract with the sum of $11,000 being claimed as damages for breach. The Defence to the claim is that there was never any such contract between the parties and that Ms. Joseph was not entitled to recover the sum claimed or to any relief against Ms. Pierre. Much evidence was led to show that Ms. Pierre could never have made such an agreement as she had no visa and could not in fact travel to Florida to make any purchase of any kind.
3. On a proper analysis, however, Ms. Joseph's claim is for money had and received to her use by Ms. Pierre for a consideration which has wholly failed and, as it transpired during the hearing, Ms. Pierre's defence is that Ms. Joseph made a loan to her of $6,000 which she has been unable to repay.
4. There is no issue that Ms. Pierre received money from Ms. Joseph which she is liable to repay. The issue for resolution is whether Ms. Pierre is indebted to Ms. Joseph in the sum of $6,000 as monies lent or $11,000 as monies paid under an agreement, the consideration for which has totally failed.
5. Ms. Joseph's evidence is that she shops for goods in Miami on a regular basis and had on occasion bought goods for Ms. Pierre. In November of 2015, Ms. Pierre came to her shop and informed her that she was going to Miami to purchase goods but as she would not have enough goods to fill a container, she proposed to purchase goods for Ms. Joseph in order to do so.
6. Ms. Joseph states that she agreed and pursuant to their agreement, she later delivered $11,000 to Ms. Pierre at her house where she observed her with bags packed and hair done, ready to catch the first flight to Miami the following morning. Ms. Joseph produced a document which she asserted was a receipt for the money, but it is signed by her but not by Ms. Pierre and, accordingly, it has little probative value. Additionally, on the receipt on which Ms. Joseph relies, she records the date of the transaction by month-day-year rather than by day-month-year which is how all her other receipts are dated. Further, the receipt in the register exhibited by Ms. Joseph is preceded by two receipts bearing 2016 dates and is followed by a receipt which also bears a 2016 date. Given the inconsistency between the way the date on the alleged receipt for this transaction is recorded and her usual way of recording dates, the incongruity of a receipt for 2015 being among receipts for 2016 and Ms. Joseph's explanations therefor, I am satisfied that it is more likely than not that she created the receipt in order to bolster her case.
7. Ms. Joseph's evidence that she gave $11,000 to Ms. Pierre is supported by that of her son, Guerlain Mesidor, who says he was with his mother in her shop when she put the money in an envelope and with her when the cash was delivered to Ms. Pierre's house. It was his evidence that he had been opposed to his mother giving Ms. Pierre the money as he was certain that Ms. Pierre did not have a visa and could not travel to Florida to transact any business on his mother's behalf.
8. In her Defence, Ms. Pierre denies that she and Ms. Joseph were friends as Ms. Joseph asserted, though in her witness statement she states that "we gave, lent and borrowed money between each other on the basis of mutual friendship." She avers that in November 2015, Ms. Joseph lent money to her because of the financial struggles she was enduring.
9. Ms. Pierre's boyfriend, Marius Preval, gave evidence on her behalf and his testimony gave rise to numerous inconsistencies in the evidence between them:
In Ms. Pierre's viva voce evidence, she said, "She lent me $6,000. Because I just buy the container and owe some people some money and they were cursing me" but Mr. Preval's evidence was that Ms. Pierre needed money because there had been a break-in at his house and $6,000, which had been held by Ms. Pierre as banker for an Asue, had been taken.
Both Ms. Joseph and Ms. Pierre agree that the money was delivered to Ms. Pierre at her home, but Mr. Preval says the transaction took place at her shop.
It was Ms. Pierre's evidence that Mr. Mesidor called Mr. Preval, in or around June 2016, and told Preval if the money wasn't paid, he would add interest to the sums due but Mr. Preval's evidence was that Ms. Joseph had demanded that he repay the money in June or "she would put interest on it."
10. That Ms. Pierre and Mr. Preval couldn't get their stories straight had the effect of eroding their credibility. That said, "he who asserts must prove" and simply because I do not accept the Defendant's case does not mean the Plaintiff is entitled to judgment.
11. Returning to the Plaintiff's case, I turn first to deal with the false receipt which she tendered in support of her case, and remind myself that people may not tell the truth for a number of reasons, and may lie in an attempt to bolster up a just cause and that merely because a person has not told the truth about certain matters, it does not mean that he or she is not telling the truth about other matters: see R v Lucas  QB 720.
12. Despite Ms. Joseph's attempt to bolster her evidence by producing the impugned receipt, I nonetheless accept her as a witness of truth given Ms. Pierre's admission that she received money from her in November 2016 as alleged. If Ms. Joseph spoke the truth about that, I can think of no reason why she would lie about the amount of money she gave her. I enter judgment for the Plaintiff in the sum of $11,000 with interest thereon at the rate of 6% from the date of judgment, pursuant to section 20(1) of the Civil Procedure Ordinance ("CPO").
13. On the issue of pre-judgment interest, the Court has a discretion under section 19(2) of the CPO to award interest from the date of the cause of action to the date of judgment "at such rate as the Court thinks fit or as rules of court may provide." At present there are no rules of court dealing with this issue but the English decisions provide a valuable guide to the approach that should be adopted.
14. The first principle governing the award of interest is that it is intended to be compensatory not punitive: "fundamental principle is that interest is not awarded as a punishment, but simply because the plaintiff has been deprived of the use of the money which was due to him": per Robert Goff J in B.P. Exploration Co (Libya) Ltd v Hunt (No 2)  1 WLR 783 at 845G.
15. The learned Judge also observed at 846C that "interest will generally run from the date of accrual of the cause of action in respect of money then due or loss which then accrues" and at 846E that "the power to award interest is discretionary, and there is certainly no rule that interest will invariably run from the date of loss."
16. The practice of the Commercial Court of England which was established by the decision of the Court in Tate & Lyle Food and Distribution Ltd v Greater London Council  1 WLR 149 was to award a rate of 1% above the minimum lending rate, though the Court indicated that the rates might be increased to 2% or even 3% in the case of smaller or less well established concerns of or where there is evidence of actual loss as opposed to the notional loss the for which the rate is intended to compensate the Plaintiff.
17. This is set out in the judgment of Forbes J at 154B-F:
"One looks, therefore, not at the profit which the defendant wrongfully made out of the money he withheld - this would indeed involve a scrutiny of the defendant's financial position - but at the cost to the plaintiff of being deprived of the money which he should have had. I feel satisfied that in commercial cases the interest is intended to reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld. I am also satisfied that one should not look at any special position in which the plaintiff may have been; one should disregard, for instance, the fact that a particular plaintiff, because of his personal situation, could only borrow money at a very high rate or, on the other hand, was able to borrow at specially favourable rates. The correct thing to do is to take the rate at which plaintiffs in general could borrow money. This does not, however, to my mind, mean that you exclude entirely all attributes of the plaintiff other than that he is a plaintiff. There is evidence here that large public companies of the size and prestige of these plaintiffs could expect to borrow at 1 per cent over the minimum lending rate, while for smaller and less prestigious concerns the rate might be as high as 3 per cent over the minimum lending rate. I think it would always be right to look at the rate at which plaintiffs with the general attributes of the actual plaintiff in the case (though not, of course, with any special or peculiar attribute) could borrow money as a guide to the appropriate interest rate. If commercial rates are appropriate I would take 1 per cent, over the minimum lending rate as the proper figure for interest in this case."
18. The term "minimum lending rate" fell out of use and the term "base rate" was substituted therefor. In Claymore Services Limited v Nautilus Properties Limited  EWHC 805 (TCC) the Court re¬affirmed the principle that the statutory rate of interest, fixed for the benefit of unpaid judgment creditors, would not be the appropriate rate of interest in commercial cases. In that case, Jackson J held that Court should award interest at the rate at which the Plaintiff could have borrowed money during the relevant period which he assessed at 2% above the base rate.
19. In Attrill v Dresden Kleinwort Ltd, 2013 EWCA Civ 394 which involved individuals, the Court awarded 5% over Barclays' base rate on the basis that individuals could not borrow at the same lower rates as commercial organisations and the equivalent rate was the rate of unsecured borrowing by individuals who were in the same position as the Claimant. The Court referred, in the course of its judgment, to the case of Jura v Ahmed  EWCA Civ 2010 where interest was awarded at base rate plus 3% to reflect the real cost of borrowing for small businessmen like the claimants.
20. The cases reaffirm that interest is in the discretion of the Court but do provide some guidance on the factors to be taken into account.
21. The starting point for this Court is to determine what rate in Turks and Caicos would be parallel to the Base rate. Publicly available resources define the Base Rate - or the Official Bank Rate as it is sometimes known - as the rate at which the Bank of England lends to commercial banks. As we use the United States dollars as our local currency, it has been suggested1 that we adopt that rate in the United States which would be the equivalent of the UK Base Rate. It appears from my research of publicly available materials in the course of preparing this decision, that the rate at which the US Federal Reserve lends to commercial banks, which is known as the Discount Rate would be the rate equivalent to the UK base rate. This rate was 1.0% in 2015/20162. Although appropriate in a matter where the successful plaintiff was the government of a country and therefore able to borrow money at LIBOR plus 1.2%, it does not seem an appropriate rate to adopt with respect to a small (micro) business owner
1CL97/14 The Attorney General of the Turks and Caicos Islands v Urban Development Limited, unreported decision and 7 March 2016, following on from earlier ruling in the same matter dated 28 January 2016
22. A cursory inquiry of the commercial banks here makes it clear that they use the US Prime Rate as their base rate and so I propose to adopt that rate for the purpose of determining the pre-judgment award of interest. The US Prime Rates are a matter of public record. Publicly available resources put that rate at 3.5% at December 2015 through June 2016.3 Ms. Joseph as a sole proprietor of a small business would be unable to access loans at the favourable rates of 1% or %2 over prime at which large commercial enterprises could obtain funds. I consider the appropriate rate to in this case to be 4% over the prime rate.
23. The issue of pre-judgment interest was not raised at the hearing nor did the parties did have the benefit of this Court's previous decisions 4 on the rate of interest to be applied to pre-judgment interest or the opportunity of making submissions the issue. If the parties wish to be heard on this issue, they should so indicate to the Registrar by 4pm on the 12 April 2017 and the matter will be listed for hearing. Otherwise, the judgment will be handed down on Thursday 13 April 2017 at 9am and the Order that Ms. Pierre pay Ms. Joseph interest of 7.5% on the sum of $11,000 from December 2015 to the 30 June 2016 will become final. I will hear Counsel on costs.
DATED 13 APRIL 2017
4AG v Urban Development Ltd 28. January 2016 and 7 March 2016