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IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
GRENADA
HIGH COURT OF JUSTICE
CLAIM NO. GDAHCV 2013/0325
BETWEEN:
ALIE BAPTISTE
Claimant
and
THE ATTORNEY GENERAL OF GRENADA
Defendant
Appearances:
Dr. Francis Alexis, Q.C for the Claimant

Mrs. Chevaugh Spencer-Joseph for the Defendant

2013: December 11

2014: March 17

DECISION
[1] MOHAMMED, J.: On 11th July, 2013 (“the application to strike out”) the Defendant
applied to strike out the Claimant’s Claim Form and Statement of Claim on the
basis that they do not disclose any reasonable ground to bring or defend the claim;
the prosecution of the claim is an abuse of process of the court and the Statement
of Claim is prolix and does not comply with the requirements of Part 8 of the CPR
2000. Although the application to strike out challenged the Claim on three limbs it
appeared to the Court that the Defendant only pursued the first two limbs in its
submissions. In the circumstances, I will only deal with the grounds raised in the
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first two limbs. To appreciate the application to strike out it is necessary at this
juncture to briefly set out the nature of the Claimant’s substantive claim.
[2] The Claimant, a Grenadian national who was involved in the business of blending
and selling rum and exporting seafood, was extradited on the 11th June 2012 to
the United Kingdom to stand trial for the offence of “Conspiracy to evade the
prohibition on the importation of a controlled drug of Class A, namely Cocaine”.
The Minister of Foreign Affairs of Grenada (“the Minister”) issued an Authority to
Proceed (“Authority to Proceed”) on the 19th February, 2009 which initiated the
extradition process and a Warrant of Extradition (“Warrant of Extradition”) on 17th
May 2012. He was tried in December 2012 in the United Kingdom for the said
offence and was found not guilty by the jury. He returned to Grenada in late
December 2012.
[3] He instituted the instant proceedings where he alleges that the Minister failed in
his duty of care to carry out proper enquiries before signing the Authority to
Proceed and the Warrant of Extradition. He contends that as a result of the
Minister’s breach of his duty of care that the Claimant has suffered damages for
deprivation of liberty, loss of reputation, loss of character, psychological hurt,
humiliation, embarrassment, economic and financial loss. He has quantified his
economic and financial loss as loss of a motor vehicle in the sum of $35,000.00;
rum flavour stock worth $45,000.00; a lot of land situate at Mardigras, St. George’s
worth $40,000.00 and his debts in the sum of $80,000.00.
[4] The Defendant’s grounds for the application to strike can be summarized as: the
Claimant is seeking to re-litigate issues previously dealt with at the Magistrate
Court and the High Court; the Claimant failed to avail himself of the avenue of
judicial review as provided under the Extradition Act of Grenada1 (“The Extradition
Act”); the pleaded facts do not disclose any legally recognizable claim against the
Defendant; the Extradition Act provides specific procedures and remedies to an
aggrieved person and the Claimant is estopped from raising an ordinary claim in
1 Chapter 98 of the Laws of Grenada 2010 revision
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negligence; the Minister acted within his powers and complied with his duty under
the Extradition Act; and no fresh evidence has been adduced to show that the
decision of the Minister would have been entirely different.
[5] Part 26.3 CPR confers a discretion on the Court to strike out a Statement of Claim
in any of the following circumstances:
(a) Failure to comply with a rule or practice direction, order or direction given
by the court in the proceedings.
(b) Failing to disclose any reasonable grounds for bringing or defending a
claim.
(c) Abuse of process of the court or is likely to obstruct the just disposal of the
proceedings.
(d) If it is prolix or does not comply with the requirement of paragraphs 8 or
10.
[6] There has been a wealth of guidance from the Court of Appeal in this jurisdiction
on the factors which a Court ought to consider in exercising its discretion to strike
out a claim. I will just refer to two which, in my view, captures the essence of the
guidance. In Citgo Global Custody v Y2K Finance2 Edwards JA stated:
“…the following circumstances are identified as providing reason for not
striking out; where the argument involves a substantive point of law which
does not admit of a plain and obvious answer; or the law is in a state of
development; or where the strength of the case may not be clear because it
has not been fully developed. It is also well settled that the jurisdiction to
strike out ought to be used sparingly since the exercise of the jurisdiction
deprives a party of its right to a fair trial and the ability to strengthen its case
through the process of disclosure and other court procedures such as
request for information; and the examination and cross-examination often
change the complexion of the case. Also, before using CPR 26.3 (1) to
dispose of ‘side issues’, one should be taken to ensure “that a party is not
deprived of the right to trial on issues essential to its case. Finally, in
deciding whether to strike out, the judge should consider the effect of the
order on any parallel proceedings and the power of the court in any
application must be exercised in accordance with the overriding objective of
dealing with cases justly.”
2 BVICVA No. 22/2008
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[7] More recently Mitchell JA in Tawney Assets Limited v East Pine Management
Limited and Ors3 echoed similar sentiments on the approach the Court must
adopt as:
“The striking out of a party’s statement of case, or most of it, is a drastic
step which is only to be taken in exceptional cases. The reason for
proceeding cautiously has frequently been explained as that the exercise
of this jurisdiction deprives a party of his right to a trial and of his ability to
strengthen his case through the process of disclosure, and other
procedures such as requests for further information. The court must thus
be persuaded either that a party is unable to prove the allegations made
against the other party; or that the statement of case is incurably bad; or
that it discloses no reasonable ground for bringing or defending the case;
or that it has no real prospect of succeeding at trial. The proper approach
to be taken in striking out a statement of case as disclosing no facts upon
which the court can proceed has been described by Pereira CJ [Ag.], in
her judgment in the interlocutory appeal in Ian Peters v Robert George
Spencer4 where she found that a statement of case is not suitable for
striking out if it raises a serious live issue of fact which can only be
determined by hearing oral evidence.”
[8] At paragraph 23 in Tawney Assets Limited Mitchell JA drew an analogy with the
approach under the CPR rule with the old rules when he said:
“Even under our old rules, the striking out of a claim was a jurisdiction
which was to be exercised sparingly. In the words of Sir Dennis Byron in
Baldwin Spencer v The Attorney General of Antigua and Barbuda et
al 5:
‘This summary procedure should only be used in clear and
obvious cases, when it can clearly be seen, on the face of it, that
the claim is obviously unsustainable, cannot succeed or in some
other way is an abuse of the process of the court6.’
There is no reason to believe that this is not still good guidance under the
new CPR.”
3 Civ Appeal HCVAP 2012/007 at paragraph 22
4 Antigua and Barbuda High Court Civil Appeal No. 16 of 2009 (delivered 22nd December 2009, unreported)
following Citco Global NV v Y2K Finance Inc Territory of the Virgin Islands High Court Civil Appeal No 22 of
2008 (delivered 19th October 2009, unreported)
5 Antigua and Barbuda High Court Civil Appeal No. 20A of 1997 (delivered 8th April 1998,unreported)
6 Ibid,p.5
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Should the Claim Form and Statement of Claim be struck out for disclosing
no reasonable ground for bringing the claim?
[9] The Claimant’s case is grounded in negligence and in particular his allegation that
the Minister owed him a duty of care to carry out proper inquiries before he signed
the Authority to Proceed and the Warrant of Extradition. At paragraph 32.1 of the
Statement of Claim, he sets out the particulars of the Minister’s alleged negligence
as:
“Particulars of Negligence
1. The Minister was negligence (sic) in that he:
(ii) Failed to make proper inquiries, and/or have proper inquiries
made, into the monies sent by Gibson to Baptiste; as –
(iii) Those monies were deposited by Baptiste in Baptiste’s accounts
at Grenada Co-operative Bank, Church Street, St. George’s;
Communal Co-operative Credit Union, H.A. Blaize Street, St.
George’s; and Grenada Building and Loan, Church Street, St.
George’s
(iv) From those accounts Baptiste spent sums on cheques written by
him to individuals and business houses, none of which were
involved or allegedly involved in the said conspiracy ;
(v) All the relationships between Baptiste and Moore and between
Baptiste and Gibson, were bona fide, above-board, business
transactions; in all which Baptiste was simply and only concerned
about selling his rum and seafood;
(vi) Baptiste had never before been convicted of having been involved
in any dealings in drugs.”
[10] There are primarily four reasons for the Defendant asserting that the Claimant’s
case discloses no reasonable ground for bringing the claim which are all based on
points of law. They are (a) there is no common law duty for the Minister to make
the type of inquiries which the Claimant alleges before he issued the Warrant to
Surrender (Warrant of Extradition) since there is no special relationship between
the Minister and any persons who may be committed to be extradited by the Court
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which would give rise to a duty of care; (b) there is no duty under the Extradition
Act for the Minister to make such inquiries and the Minister complied with his
duties under the Extradition Act; (c) the Extradition Act does not confer a civil right
of action in negligence against the Minister and a specific remedy is already
provided for at section 16, and (d) a common law duty greater than that set out
under the Extradition Act is impermissible.
[11] In striking out a claim where there is no reasonable ground for bringing, it Potter LJ
in Partco Group Ltd v Wragg7 stated that cases where striking out are
appropriate include:
(a) where the statement of case raises an unwinnable case where continuing
the proceedings is without any possible benefit to the respondent and
would waste resources on both sides (Harris v Bolt Burdon8); and
(b) where the statement of case does not raise a valid claim or defence as a
matter of law ( Price Meats Ltd v Barclays Bank plc9).
[12] While all the grounds for the striking out of the Claim is that it will fail in law, I have
not been persuaded at this stage of the proceedings that the Claimant’s case is
bound to fail in law for the following reasons:
(a) Categories of negligence not closed. In Caparo Industries plc v
Dickman10 the House of Lords restated that for a common law duty of care
to arise there are three criteria to be met, namely: foreseeability of damage;
sufficient relationship of proximity of neighbourhood between the alleged
wrongdoer and the person who suffered damage and the reasonableness or
fairness of imposing such duty. I agree with the Claimant’s submission that
the categories of situations in which a duty of care is owed and in which a
cause of action in negligence arises are not closed. While I agree with the
Defendant that a cause of action that is unknown to the law ought to be
struck out, in my view the Claimant’s case raises a novel point of law. One
of the issues which the Court will be called upon to examine is whether
7 [2002] EWCA Civ 594
8 [2000] CPLR 9
9 [2000] 2 All ER (Comm) 346
10 [1990] 1 All ER 568 (HL)
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there was any special relationship between the Minister and any person to
be extradited. In such circumstances, “where the argument involves a
substantial point of law which do not admit to a plain and obvious answer, it
may be best not to have it determined on a striking out application”11. The
Claimant’s action may be fraught with difficulties and challenges in proving
his case but, in my view, this is not a good reason to strike out his Claim.
(b) Common law duty of care and statutory duty. In Home Office v Dorsal
Yacht Co Ltd12 and later in Murphy v Brentwood District Council13 the
Court recognized that a duty of care at common law may also arise even
where there is a statutory duty of care. I therefore do not agree, at this
stage before the issues are ventilated, with the Defendant’s submission that
the Minister only had a statutory duty under the Extradition Act and such
duty was exclusive and did not attract a common law duty of care.
(c) Remedies under the Extradition Act. An aggrieved person under the
Extradition Act is permitted under section 16 to apply to the Court for judicial
review of the Minister’s decision to issue the Warrant to Surrender. The
aggrieved person has 7 days from being informed of the Minister’s intention
to issue the Warrant of Surrender to make such application. The Defendant
has contended that this is the exclusive remedy which the Act confers.
However, part of the Claimant’s pleaded case is he suffered loss and
damage after he was extradited for an offence for which he was found not
guilty. I therefore agree with the Counsel for the Claimant that the
Extradition Act only provides a statutory remedy before the signing of the
Warrant to Surrender but is silent on any remedy after the Surrender.
(d) Minister’s duty under the Extradition Act. While the Defendant has
contended that the Minister had complied with his duty under the Extradition
Act, the Claimant seeks to challenge the extent of the Minister’s duty under
the Extradition Act and the Common Law. Section 4 of the Crown
Proceedings Act14 makes provision for a Minister who is acting under any
Act to be also liable in tort for his actions. In my view, to strike out the
11 Blackstone’s Civil Practice 2012 at page 503 para 33.9
12 [1970] 2 All ER 294 (HL)
13 [1990] 2 All ER 908
14 Chapter 74 of the Laws of Grenada
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Claimant’s case at this early stage would deprive the Claimant of having this
issue ventilated at a later stage of the proceedings.
[13] I therefore conclude that the Defendant’s application to strike out fails on this
ground.
Is the Claimant’s action an abuse of process of the Court?
[14] The authors of the Caribbean Civil Court Practice 201115 describe the concept of
“abuse of process” as:
“The concept of ‘abuse of the court’s process’ in the form of re-litigation is
wider than res judicata or issue estoppel. It covers re-litigation where the
party failed to bring his whole case forward in one go and wishes to
supplement it or bring in other parties in a second set of proceedings.
Observations by Sir James Wigram in Henderson v Henderson (1843) 3
Hare 100 at 115 to the effect that a person should bring his whole case
against all possible parties ‘in one go’ do not mean that re-litigation is barred
but rather that it may be demonstrated to be an abuse of process…. In
deciding whether to permit the second action to proceed, the court will bear in
mind the overriding objective and will consider whether the Claimant’s wish to
‘have a second bite at the cherry’ outweighed the need to allot the court’s
limited resources to other cases.”
[15] The Defendant has contended that the Claimant is seeking to re-litigate issues that
have already been dealt with in the Magistrate’s Court and the High Court
pertaining to the committal of the Claimant and that there is no fresh evidence
(which could not by reasonable diligence have been obtained) that has been
adduced by the Claimant in the Statement of Claim to show how the decision of
the Minister would have been entirely changed.
[16] There is no dispute that there were proceedings in the Magistrate’s Court and the
High Court concerning the Claimant’s extradition. According to section 11 of the
Extradition Act, the Magistrate’s duty was to consider the evidence before her to
determine if a prima facie case was made out to commit the Claimant for
extradition. Under section 13 the High Court’s powers were under judicial review
15 Page 254 Note 23.27
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proceedings to consider the propriety of the Magistrate’s action in making the
order to commit.
[17] While there were proceedings in the Magistrate’s Court and the High Court, the
Defendant has failed to set out in its supporting affidavit what were the issues
which were litigated before the Magistrate’s Court and the High Court in relation to
the Claimant’s extradition, what evidence was adduced before and considered by
each court in the determination of the issues and how the substantive issues in the
instant action are similar to those determined in the Magistrate’s Court and High
Court.
[18] In the absence of such evidence being placed before this Court to support the
application to strike out on the ground of abuse of process, the Court is not in a
position to conclude that the issues which the Claimant is seeking to raise in the
instant action are a re-litigation of the issues determined before the Magistrate’s
Court’s and the High Court.
[19] I therefore find that the application to strike out fails on this ground.
Order
[20] The application to strike out is dismissed. The Defendant to pay the Claimant costs
of the application. I will hear the parties on costs.
[21] Time is extended to 31st March 2014 for the Defendant to file and serve a
Defence.
[22] Matter is transferred to the Master for Case Management.
Margaret Y. Mohammed
High Court Judge