Smith v Attorney General 1992 Civil Jur. No. 147

• Jurisdiction: Bermuda
• Judgment Date: 05 October 1992
• Date: 05 October 1992
• Docket Number: Civil Jurisdiction 1992 No. 147
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Ground, J

Civil Jurisdiction 1992 No. 147

Percy Louis Smith

Plaintiff/Respondent

-and-

Attorney General

Defendant/Applicant

Attorney General and Mr. Calhoun for Applicant

Mr. Philip Perinchief for Respondent

Application to strike out — Statement of claim disclosing no cause of action — Claim for interest on money seized by police — $25,650 in cash seized during drugs raid

REASONS FOR ORDER

Richard Ground

This matter came before me on 11th September, when I made an order that the statement of claim be struck out and that the action be dismissed with costs. I promised to give reasons for that decision, and now do so.

In this action the plaintiff was seeking to recover interest, at the rate of 7%, on certain monies. The story which emerges from the statement of claim is as follows. On 1st May 1987 the plaintiff was arrested at his home. At the time of his arrest some $25,650 in cash was taken from his home into the custody of the police. The statement of claim avers that the money was ‘lawfully seized by warrant issued under the Misuse of Drugs Act.’ The money was later used as an exhibit in a trial in the Supreme Court (the statement of claim does not say, but the defence alleges that it was the plaintiff's own trial) but was not forfeited. The money appears not to have been repaid until 3rd April 1992. It may have been stolen or otherwise lost in the interim, but the statement of claim is by no means clear on this.

The interest claimed is from the date of the seizure, 1st May 1987 until 3rd April 1992, and it is claimed compounded.

The writ in this matter was issued on 9th April 1992, and an appearance was entered on 24th April. A statement of claim was served with the writ. I need to say a word about that. The writ and the statement of claim were bound up under one back-sheet, which was headed ‘specially indorsed writ of summons’. However, I think that on a strict analysis the statement of claim was not indorsed upon the writ. It is not inserted into the body of the writ in the appropriate place as indicated by the prescribed form. Instead it is on separate sheets of paper, which comes after the conclusion of the all formal parts of the writ. It may be that nothing turns on this, and no point was taken, but I take the view that the writ itself was initially defective, as it had no indorsement on it whatsoever, and that the statement of claim is to be regarded as served with the writ and not indorsed upon it.

Continuing with the history of the matter, a defence was filed on 18th May 1992 (the document itself is undated) and on the 22nd May a summons was issued, returnable on 20th July, to strike out the statement of claim. The summons had two limbs—

(i) that the statement of claim be struck out in its entirety as disclosing no reasonable cause of action, and as being frivolous or vexatious; alternatively

(ii) that the statement of claim be amended by striking out certain identified paragraphs as being ‘irrelevant, frivolous or vexatious’ and by striking out some of those paragraphs in so far as they relate to certain identified officials as being frivolous, vexatious and contrary to Section 3 (5) of the Crown Proceedings Act 1966.

The hearing of that summons was variously postponed. I was told at the hearing that this was to allow for amendments to the statement of claim to be formulated. Certainly before the summons came on the plaintiff purported to amend his statement of claim. He did this by filing and serving a document dated 9th September 1992, headed ‘Amended...