US$18k stalemate

An unusual situation has surfaced in a civil case in the Supreme Court in which Justice Leighton Pusey has indicated that he plans to strike out the claimant’s and the defendant’s statements of case on the basis that they do not disclose any reasonable grounds for bringing or defending the claim.

The case involves customer Maxine Marsh, who had brought a claim 17 years ago against Pan Caribbean Merchant Bank Limited, which has since merged with Sagicor Bank, to recover a certificate of deposit (CD) for US$18,818, which was issued by the bank in 1992.

The case, which has been dragging along since then, will end next month, when Pusey delivers judgment in the matter.

Pusey has apologised for the length of time the matter has taken and has given reasons for some of the delays. He ruled last month that the case was at a “stalemate“ as the parties were unable to provide documentary evidence to advance their cases.

The judge emphasised that under the Civil Procedure Rules, he would have to make orders on his own initiative and was, therefore, giving the parties until this past Tuesday to make written submissions in relation to his findings.

An attorney explained that an opportunity is being given by the judge for the parties to make submissions to see if either party can persuade him not to act in the manner he is contemplating.

Marsh was a joint holder with her mother, Ruby Wallace (now deceased), of the CD. Marsh said the maturity date for the CD was 1993, with interest at five per cent. She said she made requests since 2004 for the money and it was not turned over, so she took the issue to court to recover the funds.

The bank contends in its defence that on July 25, 2007, it checked its records and there was no account that existed in the names of those two customers. It stated further that pursuant to its policies, it meant that the matured amount was paid out to the claimant or her mother or both of them. The defendant said the time to bring the claim would have expired in 1999 because under the Limitations of Actions Act, six years had expired since the CD had matured.

It was argued on behalf of the claimant that the cause of action arose upon the failure of the defendant to cash the CD.

The judge, in refusing the application made by the defendant for summary judgment, agreed with the submissions made by the lawyers for the claimant that the demand for the deposit was first made and refused in 2004, therefore the limitation period would have expired in 2010.

Pusey, who began hearing the matter in 2019, pointed out in his findings last month that,since the filing of the claim, there had been a slew of interlocutory applications and adjournments. Prior to Pusey adjudicating on the case, it went before other judges who made orders in the matter. Pusey disclosed that his laptop was stolen and the COVID- 19 pandemic contributed to the delay.

“The court notes that the matter commenced some 15 years ago, and standard disclosure has not yet occurred. The passage of time is not advantageous to either party’s case. The defendant has since subsumed into Sagicor Bank, and their failure to provide their policy regarding the CD suggests that they are not likely to present any documentary evidence that would substantially advance their case. In fact, the court gleaned as much from several affidavits seeking an extension time to comply ... . Certainly, the same may be true of the claimant. It is likely that she, too, may not be in a position to provide documentary evidence to advance her case. This means that the parties are at a stalemate, and it is not likely that any orders can be made which would progress the case further or result in a disposition by way of a trial,” the judge disclosed.

There was also an assertion, the judge said, that the account was closed and that was indicative of the sums being paid out. However, the judge took note that there was no evidence provided in support of that assertion, which he described as a “bare one”.

The judge said also that “the defendant has also asserted that they do not keep documents beyond seven years for unclaimed deposits. This infers that even if the deposit is unclaimed, they may not have records relating to such. The court once again noted how the absence of the defendant’s policy regarding CDs is damning. It further highlights the importance of such a document and documentary evidence, generally, in the just disposal of the substantive claim”.

A mountain of speculation

Pusey said the effect of the deficiencies in both parties’ statements of case is that no tribunal could safely determine the matter one way or the other and that examination of the parties’ statements of case is a mountain of speculation, which leaves much to be discharged by them legally and evidentially.

“In light of the foregoing, the court is minded to make orders to strike out the claimant’s and the defendant’s statements of case on the basis that they do not disclose any reasonable grounds for bringing or defending the claim. The court is also of the view that this is a unique situation which would permit the court to make no orders as to costs.”

Pusey then gave the parties time to respond before he made the orders.

“While the Court is minded to make these orders, it, of course, must give credence to Rule 26(2) (2) of the CPR (Civil Procedure Rule) and the principles of natural justice which indicate that any party likely to be affected by the proposed order(s) to be made on the court’s own initiative should be given a reasonable time to be heard. In view of this, the court invites counsel in the matter to make submissions in relation to these findings,” the judge directed.

The parties were invited to file and exchange written submissions on the findings of the court on or before November 19. The submissions on the findings will be considered on paper and judgment is reserved until December 19.

The claimant is being represented by attorney-at-law Georgia Buckley, instructed by Kathryn Phipps & Co.

King’s Counsel Carlene Larmond and attorneys-at-law Jerome Spencer and Giselle Campbell, instructed by Patterson Mair Hamilton, are representing the bank.

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