IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

GRENADA

Claim No: GDAHCV2020/0064                                                                      

BETWEEN:

1. JULIEN LEWIS
2.  ANTHONY GEORGE

Claimant

and

1.  GRENADA UNION OF TEACHERS CO-OPERATIVE CREDIT UNION LIMTED
2. THE GRENADA AUTHORITY FOR THE REGUALTION OF FINANCIAL INSTITUTIONS

Defendants

APPEARANCES:         

Claudette Joseph for the Claimants

Hazel Hopkin for the 1^st Defendant

Lisa Taylor for the 2^nd Defendant  

_______________________

2022; May 5

                December 1

_______________________

DECISION

• GARDNER HIPPOLYTE, M: This is an application by the first defendant on a preliminary point to determine whether this claim is Res Judicata and therefore be struck out as an abuse of the process of the court.

BACKGROUND

• The instant claim GDAHCV2020/0064 was filed on the 13^th February, 2020, but the claimants had previously filed a claim in 2012 – GDAHCV2012/0372 in which the 1^st defendant in this claim was then the 2^nd

• In GDAHCV2012/0372 (hereinafter referred to as the First Claim) – Anthony George & Julien Lewis v Seamen and Waterfront Workers Union & Grenada Union of Teachers Co-operative Credit Union Limited, the claimants pursued an action for the sum of $70,928.00 which were monies due and owing to the Claimants by way of unpaid union contributions/salary deductions. The claimants highlighted in the First claim and in this instant claim GDAHCV2020/0064 (hereinafter referred to as the Second Claim) that the debt was because of the merger between the Seamen and Waterfront Workers Union and the Grenada Union of Teachers Co-operative Credit Union. The material facts pleaded in the First Claim are very similar to the material facts pleaded in Second Claim. 

• It has always been the defence of the Grenada Union of Teachers Co-operative Credit Union (hereinafter referred to as 1^st Defendant) that prior to the merger all accounting reconciliation (between 1^st Defendant and the Seamen Waterfront Workers Union), was controlled by The Grenada Authority for the Regulation of Financial Institutions (hereinafter referred to as GARFIN). That GARFIN was not a party in the First Claim. The financial statements of the Seamen and Waterfront Workers Union as at 31^st December, 2010 as well as the statement of members and loans to such members of said union, was produced by GARFIN to the 1^st 

• In the First Claim the claimants admitted that their names were omitted from the statements of members submitted by GARFIN to 1^st In the First Claim the claimants alleged breach of contract, and this was struck out by the Master for not disclosing a cause of action against 1^st Defendant.   Further that there was no reasonable ground for bringing the claim against them.  This order by the Master was not appealed.

• The Second Claim now seeks Declaratory reliefs, but the same amount of money pleaded in the First Claim is pleaded in the Second Claim. The First and Second claims are similar in the pleadings as to the background facts but the Second Claim now states that GARFIN was responsible to provide the 1^st Defendant with a list of all existing members including the claimants and that they failed or neglected to do so.[1] 

• The claimants go on to state in the Second Claim that the claimants were not registered as members of the 1^st Defendant even though all their savings held with the Seamen and Waterfront Workers Union were paid into the 1^st Defendant under the merger.[2]

• The 1^st Defendant indicated in both their defences similar pleadings but in the second defence they go on to plead reliance on issue estoppel. The 1^st Defendant argues that the First Claim was struck out, was not appealed and the facts have not changed.  The only difference now is that the claimants seek declaratory reliefs in the form that the claimants are members of the 1^st Defendant and that they have a right to the said monies.  The 1^st Defendant argues that this could have been raised in the first claim.  Therefore, the matter is now res judicata.

• I will now go on to substance of the application.

RES JUDICATA

• The 1^st Defendant in their submissions have referred the court to Henderson v Henderson 67 ER 313 as follows:

“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence might have brought forward at the time. “

• The 1^st Defendant has suggested that since the material facts are the same, the claimants had the opportunity when the First Claim was brought to plead the breach of contract and the declaratory reliefs now requested in the second claim. That having failed to do so in the First Claim means that they are now estopped.

• The claimants in the alternative have argued that the claims are different because of the relief sought. Counsel for the claimants refers the court to the case of Johnson v Gore Wood & Co [2001] 2 WLR 72 in the judgment of Lord Bingham of Cornhill, which highlights that

“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.  I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.  It is however wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in a later proceedings necessarily abusive.  That is to adopt too dogmatic approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

• The 1^st Defendant countered and highlighted that there is no information in the claimants’ affidavit as to why they did not argue the reliefs in the First Claim. Further they do not explain why they did not join GARFIN in the first claim, and why they did not seek to amend the register in the First.

• I find favour with the arguments of the 1^st Defendant since there is nothing materially different in the facts pleaded between the two claims. As per the case law in Henderson, I agree, and I can find no special circumstance shown or adduced by the claimants in their affidavit for the court to consider as to why this Second Claim should not be estopped on the principle of res judicata.  

• I however also turn to the case law provided by the claimants of Johnson v Gore. I disagree with their analysis and refer to the quote  “That is to adopt too dogmatic approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before…”.   Therefore, in seeking to apply the broad, merits-based judgement, taking account the public and private interests involved, I have considered the facts carefully and state as follows:

• The 1st Defendant entered a merger and relied on the financials as provided by GARFIN. It is undisputed that the 1^st Defendant does not have on their “books” the information or accounts of the claimants.

• That the cause of action in the First and Second claim are the same and that the reliefs sought in the Second Claim should have been brought in the First Claim, it was a logical step when trying to connect a nexus with the parties.

• The First Claim was struck out as disclosing no reasonable ground for bringing the claim against the 1^st Defendant herein and there being no appeal that decision still stands. Again turning to the Second Claim the facts pleaded are not materially different to the first one and all that has substantially changed is the relief sought against the First Defendant.

• Therefore, I agree with the arguments of the 1^st Defendant and find that the claim is res judicata and should be estopped. I now turn to whether the application should be struck out for not disclosing any reasonable ground for bringing a claim and as an abuse of the process of the court.

STRIKING OUT FOR NOT DISCLOSING ANY REASONABLE GROUND FOR BRINGING OR DEFENDING THE CLAIM AND AN ABUSE OF THE PROCESS OF THE COURT

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) there has been a failure ………:

(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 …..

• The 1^st Defendant has argued that since GARFIN was the one handling the process the court will not find any allegation against them. That the only references made against the 1^st defendant disclose that they were part of the merger but not responsible for the list. The 1^st Defendant received a confirmed list of existing members and GARFIN it is the one referred who failed or neglected to supply the 1^st Defendant with the information.

• I agree with these submissions of the 1^st Defendant that there is no reasonable ground for bringing the claim against them.

• Further having considered the learning in Henderson, I am of the view that
• the issue could have been brought in the first claim;
• the first claim ought to have had all the parties; and
• the 1^st Defendant ought not to be vexed twice with the same issue.

Therefore since the claim is Res Judicata,  it has given rise to an abuse of the process of the court[3] and accordingly, I will dismiss the claim against the 1^st Defendant.  The claim still however still stands against GARFIN the 2^nd Defendants.

• I have noted the other submissions in relation to the application but having made the above findings I deem it unnecessary to address the other areas.

CONCLUSION

• For the abovementioned reasons the order of the court is as follows:

1. The application is granted and the claim against the 1^st defendant is struck out;
2. The claimant having been unsuccessful in the application shall pay costs to the 1^st defendant, such costs to be assessed if not agreed;
3. The 1^st defendant to draw file and serve this order.

CHARON GARDNER-HIPPOLYTE

HIGH COURT MASTER

BY THE COURT

REGISTRAR