Bailey v Wm E Meyer & Company Ltd

• Jurisdiction: Bermuda
• Judgment Date: 23 January 2017
• Date: 23 January 2017
• Docket Number: Civil Jurisdiction 2003 No 70
• Court: Supreme Court (Bermuda)

[2017] Bda LR 5

In The Supreme Court of Bermuda

Civil Jurisdiction 2003 No 70

Between:

Jimmy Bailey

Plaintiff

and

Wm E Meyer & Company Limited

Defendant

Mr M Johnson for the Plaintiff

Mr C Rothwell for the Defendant

The following cases were referred to in the judgment:

Biguzzi v Rank Leisure plcUNK [1999] 4 All ER 934

Re BurrowsBDLR [2005] Bda LR 77

Wearn v HNH International Holdings Ltd [2014] EWHC 3542

The Owners and/or Bailees of the Cargo of the Ship Panamaz Star v The Owners of the Ship Auk [2013] EWHC 4076

Hofer v Bermuda Hospitals BoardBDLR [2015] Bda LR 75

Strike-out application — Want of prosecution — Abuse of process — Inaction over 8 — 10 year period — Ability of Defendant to complain of Plaintiff's inaction when taking no steps to advance the action — Overriding objective

RULING ON STRIKE-OUT APPLICATION of Kawaley CJ

The Application

1. By a Summons dated November 8, 2016, the Plaintiff applies to strike-out the present action for want of prosecution, inter alia, under the inherent jurisdiction of the Court. The only ground seriously pursued was the complaint that the inordinate and inexcusable delay exemplified by a failure to take any steps to prosecution the action between January 2008 and January 2016 constituted an abuse of process.

2. The Plaintiff's claim relates to contracts entered into in October 1999 and August 2001. It was commenced by a Generally Writ of Summons issued February 17, 2003 and broadly replicated a Defence and Counterclaim filed by the Plaintiff in the present action in Supreme Court Civil Jurisdiction 2002: No. 135, which was commenced by the Defendant herein against the Plaintiff herein by Writ issued on April 5, 2002 (‘the 2002 Action’) to recover $20,000 allegedly due under the 2001 Agreement. The Agreements sued on by the Plaintiff in the present action and by way of his Counterclaim in the 2002 Action sought damages assessed as amounting to at least $2.5 million for, inter alia, the loss of profits for failure to transfer the business to which the Agreements related.

3. A default judgment obtained by the Defendant herein early in the 2002 Action was set aside by consent on February 6, 2006. Thereafter the Defendant did not pursue the 2002 Action and the Plaintiff herein did not pursue his Counterclaim in that action either. Although that earlier proceeding is not before the Court, the Defendant accepts that it has abandoned the right to pursue that claim on the basis that, as a logical consequence of the relief sought against the Plaintiff on the present application in these proceedings, the Plaintiff will be unable to pursue his Counterclaim in the earlier proceedings either.

Chronology

4. The following chronology of key events (derived from the fuller Chronology Mr Rothwell prepared) paints a broad picture of the progress of the present action:

• • February 14, 2003: Writ issued and Statement of Claim filed replicating Defence and Counterclaim in the 2002 Action;

• • February 25, 2003: Statement of Claim amended;

• • March 13, 2003: Defendant enters an appearance;

• • April 7, 2003: Defence filed;

• • April 9, 2003: Defendant files strike-out application on grounds that action is duplicative;

• • August 29, 2005: Plaintiff files Notice of Intention to Proceed;

• • February 6, 2006: Consent Order in 2002 Action setting aside Default Judgment;

• • April 10, 2006: Plaintiff's attorneys propose consolidation of two actions and withdrawal of Defendant's strike-out application;

• • May 11, 2006: Plaintiff requires Defendant to file Defence to Counterclaim in 2002 Action;

• • May 17, 2006: Defendant files Defence to Counterclaim in 2002 Action;

• • May 18, 2006: Defendant files Notice of Intention to Proceed;

• • December 19, 2007: Plaintiff files List of Documents;

• • January 2, 2008: Plaintiff files Notice of Intention to Proceed;

• • January 18, 2016: Plaintiff files Notice of Intention to Proceed;

• • January 19, 2016: Plaintiff serves Notice of intention to Proceed;

• • September 14, 2016: Plaintiff serves documents and requests discovery;

• • October 9, 2016: Plaintiff files Summons for Directions;

Analysis of delay

5. The last step taken in Court was the filing of a Notice of Intention to Proceed and a List of Documents by the Plaintiff's former attorneys, Wakefield Quin, on January 2, 2008. There is no reliable evidence that the List of Documents was ever served. On April 7, 2003 the Defence was filed. There was no Reply so pleadings closed on April 21, 2003. The Plaintiff's counsel relied heavily on the point that the Defendant took no steps to pursue its first strike-out application, issued on April 9, 2003 and based on abuse of process grounds, although evidence was filed and the Registrar requested dates to set the matter down in May 2003.

6. However, the Plaintiff not only allowed the action to completely go to sleep for 8 years (January 2008-January 2016). It appears that the last documented attempt to move the global dispute (reflected in two actions in which the Plaintiff herein asserted a hugely bigger claim and counterclaim) forward in a manner which was communicated to the Defendant was the Plaintiff's attorneys' April 10, 2006 correspondence. Having made the proposal to consolidate the two actions, the Plaintiff took no meaningful steps in Court at all to progress his Counterclaim in the 2002 Action thereafter. Between April 10, 2006 and January 19, 2016 (9.75 years), there was seemingly no communication from the Plaintiff to the Defendant signifying his intention of prosecuting the present action. It was more than 10 years after the April 10, 2006 correspondence that the Plaintiff's new attorney unambiguously signified an intention of seriously proceeding by serving documents and requiring discovery on September 14, 2016.

7. The Defendant's evidence indicates that having regard to the comparatively modest size of its claim, a decision was taken not to pursue the 2002 Action and an assumption made that the present proceedings had only really been filed, in effect, as a tactical ploy to deter the Defendant from pursuing is claim for monies due under the Agreements. This is inherently believable as it is obvious that the Defendant's $20,000 claim in the 2002 Action could not (if vigorously contested) easily be adjudicated in this Court in a commercially proportionate manner. After March 24, 2005, the...