IN THE SUPREME COURT OF Action No. CL 21/22
THE TURKS AND CAICOS ISLANDS
(dba TCI Auto Spot)
CORAM: The Hon. Mr Justice B. St. Michael Hylton QC (Ag)
Appearances: Mr T Chal Misick for the plaintiff
Ms Chloe McMillan for the defendant
Hearing Date: 25 July 2022
Venue: Court No. 5, Graceway Plaza, Providenciales
Date Delivered: 23 August 2022
- By writ of summons and statement of claim filed on 16 March 2022 Jermaine Jennings (“the Plaintiff”) alleges that in May 2021 he entered into a contract with Adlin Pierre, doing business as TCI Auto Spot (the Defendant”), for repairs and servicing of his vehicle. He alleges the Defendant took his vehicle, and despite attending the Defendant’s premises on five occasions between July 2021 and February 2022, his vehicle was not repaired. The Plaintiff also alleges that when the vehicle was returned to him in July 2021 it had deteriorated beyond repair.
- The Plaintiff seeks damages for the replacement cost of his vehicle. The statement of claim was served on the Defendant on 11 April 2022. The Defendant filed a late acknowledgement of service on 3 May 2022, indicating that he intends to contest the whole of the Plaintiff’s claim. The Defendant has not filed a defence and pursuant to Order 12 rule 6 (2) of the Rules of Supreme Court 2000, cannot now do so without leave of the Court.
- On 25 May 2022 the Defendant filed a request for further and better particulars of the statement of claim. On the same day, 25 May 2022, the Defendant also filed a summons asking that the statement of case be struck out unless the Plaintiff filed and served the further and better particulars requested. That summons was supported by the Defendant’s affidavit dated 25 May 2022 (“the Defendant’s Affidavit”). On 21 June 2022 the Defendant amended his summons (“the Defendant’s Summons”). The Defendant’s Summons now asks that the statement of claim be struck out for breaches of Order 18 rule 7, Order 18 rule 6 (5), and pursuant to Order 19 of the Rules of Supreme Court 2000. In the alternative the Defendant seeks leave to file a defence within 14 days of the determination of the summons.
- On 8 July 2022 the Plaintiff filed an answer to the request for further and better particulars. On 8 July 2022 the Plaintiff also filed a summons seeking summary judgment and asking the Court to strike out the Defendant’s Summons (“the Plaintiff’s Summons”). The Plaintiff’s Summons is supported by his affidavit dated 8 July 2022 (“the Plaintiff’s Affidavit”). In the Plaintiff’s Affidavit, among other things, he swore that the Defendant’s request for further and better particulars was served on his attorneys on 22 June 2022, and that the Defendant’s Summons was served on his attorneys on 5 July 2022.
- I will consider the Defendant’s Summons to strike out first, both because it was first in time, and more importantly, because an affirmative ruling on that summons will obviate the need for a determination on the Plaintiff’s Summons for summary judgment.
Determination of the Defendant’s summons to strike out
Order 18 rule 7
- The Defendant contends firstly, that the statement of claim is defective as contrary to Order 18 rule 7, it does not contain the material facts as regards breach of contract and negligence on which the Plaintiff relies. The Defendant argues that the pleadings are bare and do not tell him the case he has to meet, or enable him to prepare for a trial. Order 18 rule 7 (1) provides:
Subject to the provisions of this rule, and rules 7A, 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
- Having examined the statement of claim, the Court finds that it contains sufficient facts to establish the Plaintiff’s claim of breach of contract and an alternative claim of negligence. In the statement of claim the Plaintiff pleaded:
 The Defendants operated a business in the course of which they offered repair and services of motor vehicles. The Plaintiff is a customer of the Defendant.
 On the 24th May 2021 the Plaintiff took his motor vehicle…to the Defendant premises…to be repaired by them which they agreed to do. This agreement is partially evidence (sic) by the Defendant’s service estimate No. 20147 dated 7th May 2021…The Plaintiff left the vehicle at the premises.
 The Defendant purported to repair and services (sic) the vehicle and on or about July 2021 the Plaintiff attended the premises to pay the Defendant’s charge as requested and collected his vehicle; only to be told that the service and repair of the vehicle was not yet completed. The Plaintiff attended the premises on at lease (sic) five (5) previous occasions and on the 15th February 2022, a letter was sent to the Defendant from the Plaintiff’s Attorney.
 It was an Implied term of the agreement that the Defendant would repair the Plaintiff’s vehicle with due dispatch and with reasonable care and skill and return it to the Plaintiff.
 The matter contemplated of were (sic) caused by breach of the above implied term and/or negligence by the defendant, their service (sic) or agent who failed to do the repairs on the Plaintiff’s vehicle as promised and accordingly did not use reasonable care and skill in his failure to carry out the repairs and services.
 As a result of the matters as set out above the Plaintiff has suffered loss and damage.
- Despite containing grammatical and spelling errors, the breach of contract and negligence claim are sufficiently clear and the statement of claim contains sufficient material facts, considering that Order 18 rule 7 (1) calls for brevity in pleading. In the circumstances the summons to strike out the action on this ground fails.
Order 18 rule 6 (5)
- The Defendant also alleges that the statement of claim should be struck out as it was not signed by the Plaintiff’s attorney, contrary to Order 18 rule 6 (5). An examination of the writ and statement of claim reveal that despite being filed, neither document was signed by the Plaintiff or his attorney. Order 18 rule 6 (5) provides no sanction for failing to sign a writ or statement of claim. Without more, a failure to sign a writ or statement of claim is not a sufficient reason to strike out a claim. Order 2 rule 1 provides:
- Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
- The Defendant has acknowledged the claim, indicated that he intends to defend it and has not shown how he was in any way prejudiced by the Plaintiff’s failure to sign the writ and statement of claim. In so far as any question arises about whether the Plaintiff has authorized these proceedings, the Plaintiff has confirmed that he authorized the filing of the writ. In the Plaintiff’s affidavit he swore that “the statements contained in the Statement of Claim filed and issued from the registry of the Supreme Court…is correct”. The summons to strike out the action on this ground also fails.
Order 18 rule 19
- Finally, the Defendant contends that the statement of claim (1) discloses no reasonable cause of action, (2) is scandalous, frivolous or vexatious, or (3) is otherwise an abuse of process of the court, and should be struck out pursuant to Order 18 rule 19. In written and oral submissions, Counsel for the Plaintiff denied all these allegations and argued further that it is the Defendant’s summons which is abusive, having been filed and amended after a defence ought to have been filed.
- Considering firstly whether the statement of claim discloses no reasonable cause of action, to succeed on an application to strike out an action on this ground, the Defendant must satisfy the Court that even if the Plaintiff proves all the pleaded allegations, the action would still fail. I must therefore proceed on the premise that if the action goes to trial, the Plaintiff will be able to prove all the allegations in his statement of claim. Royal Bank of Scotland International Ltd v JP SPC 4 is a very recent decision of the Privy Council. The learned Law Lords summarized the law in this way:
An application to strike out should not be granted unless the court is certain that the claim is bound to fail...a claim should not be struck out unless it is effectively unarguable, has no chance of succeeding and as such is a plain and obvious case.
- At paragraph  above I have already itemized the Plaintiff’s allegations of breach of contract and negligence in the statement of claim. I make no finding as to the credibility of the Plaintiff’s allegations, but if he proves them at the trial of this action, it cannot be said that his pleaded claim is bound to fail. It would be open to the trial judge to find that a claim based on breach of contract, or negligence has been established. It follows that the Defendant has not shown that the Plaintiff’s pleadings do not disclose a reasonable cause of action against him, and the summons to strike out the action on that ground fails.
- As to the second ground, I do not find the Plaintiff’s claim to be scandalous, frivolous or vexatious. The evidence in the Plaintiff’s affidavit which includes, a copy of an estimate purportedly prepared by the Defendant, copies of messages which were purportedly exchanged between the Plaintiff and the Defendant where the repairs and servicing of the vehicle are discussed, and a certificate of insurance purportedly showing the Plaintiff’s ownership of the vehicle and its estimated value, discloses a claim which carries some degree of conviction.
- Finally, there is no evidence that the Plaintiff has abused the process of the Court. The Defendant alleges that the claim is abusive due to defects in the pleadings as to material facts and damages. As indicated earlier, this Court finds that sufficient material facts were pleaded as to liability, and the pleadings as to damages were not so defective that the Defendant could not respond to them by putting forward an answer or alternative view. Further, there is no evidence that the Plaintiff intentionally failed to sign the writ and the statement of claim. Any failure to sign the writ and statement of claim and any grammatical or spelling defects in them can be cured by amendment, if necessary.
- In the premises I dismiss the Defendant’s summons to strike out.
Determination of the Plaintiff’s summons for summary judgment
- Order 14 rule 1 provides:
Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that the defendant has no defence to the claim included in the writ, or to particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the court for judgment against that defendant.
- The Plaintiff has applied for judgment pursuant to this rule. On a summary judgment application, the parties and the court are not restricted to a consideration of the pleadings. The court may (and indeed, should) consider all the evidence before it. A plaintiff’s application must be supported by an affidavit, and the defendant may file an affidavit detailing the nature of its defence. Order 14 rule 2 and rule 4, provide:
2 (1) An application under rule 1 must be made by summons supported by an affidavit verifying the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part, as the case may be, or no defence except as to the amount of any damages claimed.
4 (1) A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.
- To succeed on this application, the Plaintiff would have to satisfy the Court at this stage that the Defendant has no defence to either the breach of contract, or negligence claim, which has a realistic prospect of success. In Royal Bank of Scotland the Privy Council also commented on the approach to an application for summary judgment:
The courts have discouraged mini-trials in complex cases on disputed issues. The rule is designed to deal with cases that are not fit for trial at all
- As indicated earlier, the Defendant has not filed a defence. The Defendant alleged that the pleadings were so defective that he required further and better particulars to respond to the claim. The Plaintiff filed an answer to the Defendant’s request for further and better particulars on 8 July 2022, admittedly after the filing of the Plaintiff’s summons on 25 May 2022. The Plaintiff also filed an affidavit. In the Plaintiff’s affidavit he swore:
9. My statement of claim clearly set out the identification of the vehicle left at the defendant’s place of business, it is clear I had possession of the vehicle as I handed him the keys and ask that the repairs be done. I can confirm the vehicle was purchase by me and insured in my name, copies of the bill of sale and relevant ownership documents are in the vehicle ‘s glove box, as I saw no need to remove them, because my car was to be returned to me in a matter of days. (Copy of Insurance at pg 1 to 2).
10. My statement is clear as to the extent of work that was required to be done and the cost of that work, this is clearly set out in the estimate identified in my statement of claim as 20147; the estimate was prepared on the by the defendant on his business stationary and personally handed to me ((Copy of Estimate at pg 3 to 4).
11. My statement of claim clearly set out that my car was left at the Defendant’s shop for repair, the defendant know that the car is owned by me as I have had many conversation with him about the lack of progress in repairs being done and the fact that I needed my car as I was renting a vehicle while my car was being repaired (Copy of text messages between the defendant and the Plaintiff at pg 5 to 8).
12. I am the Plaintiff in this matter and on or about 24th May 2012; I took my motor vehicle namely a Chevy Cruze, 1.41 DOHC, Vin # 1G1P5SC 7251200 (“the Vehicle”) to the Defendant premises located at TCI Auto Spot Industrial Drive, Providenciales (‘the Premises”) to be repaired, while at the shop I engage in an oral discussion with the defendant about what needed to be repaired.
13. I handed the defendant the keys to my vehicle and a few days later the defendant having had the vehicle for some time was able to diagnose the problems and told me the necessary repairs and gave me an estimate of the cost for the repairs, I accepted the estimate and told the defendant to proceed with the repairs (copy estimate sic above).
14. I can confirm that the defendant did not repair the vehicle as agreed with the result that the vehicle sat in the defendant’s possession and felt into disrepair, the repairs was never completed and the vehicle remains in the defendant possession even today.
15. The Defendant has not and cannot provided any evidence that would dispute my claim; I accept the only possible issue; the defendant may properly be able to object to is the amount of the damages to be assessed.
- Exhibited to the Plaintiff’s Affidavit is an estimate bearing the Defendant’s business name, address and phone number dated 7 May 2021. The estimate details the cost for labour and materials to be charged to the Plaintiff. Also exhibited to the Plaintiff’s Affidavit are copies of text messages purportedly exchanged between the Plaintiff and the Defendant, where they discuss the repairs and servicing of the vehicle. The following are examples of these purported text messages:
We fix cars also
Ok I bring my car there it running hot I think the water pump gone
Also it need a service and you can put the part on what I order
That’s the injectors
Bring it we will get it done for you
Ok you open 9 right
The water pump on the car gone and the valve cover
Whatever bro fix it
Good morning what’s the update?
Should be finishing up today or tomorrow for you
What going on I been renting car for weeks now
Hey bro tomorrow it will be ready
Good morning what going on I need to know what time I getting the car I paying rental for weeks bro so I need to know
Hey bro yeah man sorry got busy I have it by the Carwash
Good morning I was dealing with a wedding last weekend so I didn’t have time to deal with anything for you.
The vehicle have a problem with sending too much oil to the exhaust for the turbo area let me deal with this for you and see how quick I can get it out.
Are we still on for Tomorrow??
- The Defendant has not filed any further affidavit to answer the allegations in either the Plaintiff’s Affidavit or the statement of claim, despite having been served with an answer to his request for further and better particulars. To discern the nature of the Defendant’s defence this Court must rely on the Defendant’s Affidavit, and that affidavit does not specify the nature of the intended defence.
- In all the circumstances, the Defendant has not responded to the allegations in the Plaintiff’s Affidavit that there was a contract (as evidenced by the estimate), or that he was in possession of the Plaintiff’s vehicle and on at least 3 occasions had failed to return it to him despite agreeing to do so, (as evidenced by the purported text messages).
- In their written submissions and at the hearing counsel for the Defendant did not set out the nature of the Defendant’s defence and instead merely asserted that the Plaintiff’s summons was “a last ditch attempt” by the Plaintiff to resist the striking out application and repeated that the Defendant had been unable to file a defence due to the Plaintiff’s inactivity in providing further and better particulars. The Court therefore has no evidence of what defence the Defendant intends to rely on in response to the claim of breach of contract or negligence, which if proved, has a realistic prospect of success.
- The court must decide a summary judgment application on the basis of the evidence before the court when it hears the application. In this case the Defendant has not filed any evidence that discloses a good or even an arguable defence. In these circumstance there is no basis for the court to exercise its power under Order 14 rule 4 to give the Defendant leave to file a defence.
- The application for summary judgment on liability is therefore granted, with damages to be assessed.
- It is declared and ordered that:
- The defendant’s summons filed on 25 May 2022 to strike out the plaintiff’s writ of summons filed on 16 March 2022, is dismissed.
- The plaintiff is granted summary judgment on liability, with damages to be assessed.
- The defendant to pay the costs of the claim (including the costs of both summonses) on the standard basis, to be taxed if not agreed.
B. St. Michael Hylton QC
Acting Judge of the Supreme Court
23 August 2022