Cann v Nasir and anor (strike out)
| Jurisdiction | Bermuda |
| Judgment Date | 24 March 2023 |
| Court | Supreme Court (Bermuda) |
| Docket Number | Civil Jurisdiction 2022 No 25 |
[2023] Bda LR 25
Civil Jurisdiction 2022 No 25
In The Supreme Court of Bermuda
Loan agreement — Unjust enrichment — Application for strike out — Objection to McKenzie Friend
The following cases were referred to in the judgment:
Fidelity National Title Insurance v Trott & Duncan Ltd [2019] Bda LR 8
Tucker v Hamilton Properties Ltd [2017] Bda LR 136
Butterfield v Brangman [2015] Bda LR 91
Samsoondar v Capital Insurance Co Ltd [2020] UKPC 33
Plaintiff in person
J White and D Williams for the Defendants
RULING of Wheatley R
1. On 4 February 2022, the Plaintiff filed a Specially Endorsed Writ of Summons (Claim) claiming in summary:
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(a) The First Defendant and the Plaintiff entered into a loan agreement where the Plaintiff loaned the First Defendant BD$127,000.00 with interest accruing annually at 6.5%. The loan is evidenced in the form a Promissory Note dated 11 September 2017. The Plaintiff disclosed the Promissory Note in her First Affidavit sworn on 24 June 2022 (Plaintiff's Affidavit) and the relevant clauses are as follows:
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ii. Principal Amount: One Hundred and Twenty-Seven Thousand dollars;
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iii. Loan adjusted from August 2017 to add $7,000 in additional business expenses;
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iv. Interest at the rate of 6.5 % p.a.; 1v. Loan Term: 5 years (60 Months);
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v. Monthly payments of principal and interest total $2,485 due on the first day of each calendar month;
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vi. Loan is due 60 months from the date of first payment: 1 September 2022 (date of final payment);
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vii. Terms of Loan: Unsecured.
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(b) The Plaintiffs sought in its prayer, the sum of $144,130.00 and interest.
2. On 12 May 2022, the Second Defendant filed an application to strike out the Plaintiffs case as-against them (Strike Out Application). The Second Defendant's Strike Out Application was supported by the First Affidavit of Muhsin Nasir (Mr Nasir's Affidavit). The relief sought in the Strike Out Application is as follows:
“(a) the Plaintiff's Specially Endorsed Writ of Summons dated 4 February 2022 (Writ) in this action be struck out and this action be dismissed as against the Second Defendant pursuant to Rules of the Supreme Court (RSC) Order 18, Rule 19 and/or under the inherent jurisdiction of the Court on the ground that the Writ does not disclose a reasonable cause of action against the Second Defendant (Strike Out Application);
(b) such further or other relief the Court considers just.”
3. The Plaintiff's Affidavit filed on 24 June 2022 was in response to Mr Nasir's Affidavit. An Amended Statement of Claim was subsequently filed on 29 June 2022 (Amended Claim).
4. The Amended Claim included new causes of action, which materially differ from the Claim in that the Plaintiff now sought to introduce concepts of unjust enrichment. The Plaintiffs prayer however, requests repayment of the sum of $144,130.00 and is based on the various promissory notes entered into by the First Defendant.
5. On 31 January 2023, the First Defendant filed a Notice to Admit Judgment in the full sum being sought in the Amended Claim of $144,130.00.
6. This is my decision of the Second Defendant's Strike Out Application heard on 16 February 2023.
7. This application was originally listed on 7 February 2023 at which time the Plaintiff made an application for an adjournment on the basis the Second Defendant had filed its Skeleton Argument two days out of time in accordance with the Consent Order for Directions dated 22 June 2022. The Plaintiff requested further time to file her Skeleton Argument in order to be properly prepared for the hearing of the Strike Out Application.
8. It should be noted that on 14 December 2022 the Plaintiffs filed a Notice of Change of Attorney which appointed 95 Law Ltd as her attorneys. On 7 February 2023 the hearing was scheduled to commence at 9:30 a.m.; however, neither the Plaintiff nor her attorneys attended this time. This caused me to direct the Court Associate to contact 95 Law Ltd to ascertain if they were attending the hearing. The Court Associate was told that 95 Law Ltd would not be attending, but was advised the Plaintiff would be attending. It transpired that the Plaintiff appeared in Court at approximately 9:41 a.m. with Mr Eron Hill who was being requested to appear as a McKenzie Friend for the Plaintiff.
9. I confirmed that I had no difficulty in authorizing Mr Hill to appear as a McKenzie Friend for the Plaintiff; however, Mr White for the Second Defendant objected to Mr Hill being given a right of audience which would enable him to advocate for the Plaintiff. Mr White relied on the recent case of Robert Moulder v Commission of Enquiry into the Historic Land Losses of Land in Bermuda[2022] Bda LR 75 to support this position. In Robert Moulder v Commission of Enquiry into the Historic Land Losses of Land in Bermuda, Hugh Southey AJ specifically addressed the principles which should be applied in the Court exercising its discretion as to whether a McKenzie Friend should be authorized to act for one of the parties. The capacity in which a McKenzie Friend can assist a party was also addressed. At paragraph 6, Southey AJ stated as follows:
“6. The Bench Book notes that the English Court of Appeal summarised the principles to be applied when deciding whether to authorise a McKenzie Friend in Paragon Finance pie v Noueiri[2001] 1 WLR 2357, as follows:
(a) A McKenzie Friend has no right to act as such: the only right was that of the litigant to have reasonable assistance.
(b) A McKenzie Friend was not entitled to address the court: if he did so, he would become an advocate and require the grant of a right of audience.
(c) As a general rule, a litigant in person who wished to have a McKenzie Friend should be allowed to do so unless the judge was satisfied that fairness and the interests of justice did not so require. However, the court could prevent a McKenzie .friend .from continuing to act in that capacity where the assistance he gave impeded the efficient administration of justice.”
10. I allowed Mr Hill to respond to this objection and queried whether he could provide case law which supported the position that he should be granted a right of audience as a McKenzie Friend rather than in the capacity to assist the Plaintiff. Mr Hill brought my attention to the recent Court of Appeal case of Green v Mahraoui[2022] Bda LR 107 wherein he stated he was granted rights of audience by the Court of Appeal as a McKenzie Friend. Upon reading Green v Mahraoui it was evident that this case did not address the legal principles surrounding the capacity in which a McKenzie Friend can assist a party before the Courts. Mr Hill attempted to use this case as a precedent that he should be granted a right of audience simply on the basis he was granted this in Green v Mahraoui. I stressed to Mr Hill that this was not a precedent which was binding on this Court in relation to the rights of audience of a McKenzie Friend as this issue was not raised or determined by the Court of Appeal. I urged Mr Hill that should the Second Defendant still object on the relisting date regarding him being granted a right of audience, he should obtain legal precedents to present to the Court at that time.
11. Both parties...
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