Ticoe Williams v Bermuda Hospital Board

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judge: Cratonia Thompson
• Judgment Date: 20 December 2024
• Neutral Citation: [2024] SC Bda 76 Civ
• Docket Number: 2023: No. 50

Between:

Ticoe Williams

Plaintiff

and

Bermuda Hospital Board

Defendant

[2024] SC (Bda) 76 Civ. (20 December 2024)

2023: No. 50

In The Supreme Court of Bermuda

Plaintiff: Bruce Swan of Bruce Swan & Associates

Defendant: Paul Harshaw of Canterbury Law Limited

RULING

RULING of Cratonia Thompson, Acting Puisne Judge

INTRODUCTION

1 The Defendant is seeking an order that these proceedings be struck out due to the Plaintiff's failure to provide proper responses to the Defendant's requests for further and better particulars as subsequently required by an order of this Court.

2 Unsurprisingly, the application is opposed by the Plaintiff. The Plaintiff invites the Court to dismiss the Defendant's application, with costs awarded to the Plaintiff. It is suggested in the Plaintiff's written submissions that should the Court accept the Defendant's position that the Plaintiff's pleadings are insufficient, the proper course is for Senior Counsel (assumingly Counsel for the Defendant) to advise the amendments that should be made to correct the Plaintiff's pleadings.

3 The Defendant's alternative position, should the Court not strike out these proceedings in their entirety, is to strike out certain paragraphs of the Plaintiff's Statement of Claim.

4 The relevant factual and procedural history to the application presently before the Court follows.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

5 The Plaintiff filed its Specially Indorsed Writ (with Statement of Claim) in these proceedings on 3 February 2023 (the Writ).

6 In his Statement of Claim, the Plaintiff alleges inter alia, as follows:

As a result the Plaintiff is claiming loss of wages and other monetary relief.

• (1) That he, whilst employed with the Defendant, suffered bullying and workplace harassment from another employee of the Defendant, Mr Miguel Bean.

• (2) That this behavior was brought to the attention of the Defendant but the conduct was not addressed in a satisfactory manner.

• (3) That on 5 January 2019, the Plaintiff and Mr Bean engaged in a fist fight. Following an investigation into the matter, the Plaintiff was dismissed, however Mr Bean maintained his employment.

• (4) That the Defendant has a policy of zero tolerance for fighting in the workplace, and it was a breach of that policy to dismiss the Plaintiff whilst Mr Bean maintained his employment.

7 The Defendant entered an appearance on 24 February 2023. On that same date, the Defendant made a request for further and better particulars (the Initial Request). The Initial Request sought inter alia further and better particulars relating to the Plaintiff's allegation of workplace bullying and harassment, and requested the Plaintiff to identify what conduct of Mr Bean amounted to bullying and harassment in the workplace, and also requested the Plaintiff to set out when, where and the circumstances in which each such act (or conduct) of bullying and harassment occurred. The Defendant also requested that the Plaintiff state the material terms of the alleged policy of zero tolerance for fighting in the workplace, and if the policy is written, to provide a copy of that policy.

8 On 16 March 2023, the Defendant made a supplemental request for further and better particulars of the Statement of Claim (the Supplemental Request). The Supplemental Request sought further and better particulars also relating to the allegations of workplace bullying and harassment, and in particular the Plaintiffs claim that the conduct was brought to the attention of the Defendant. The Supplemental Request requested details regarding who the complaints were made to, and whether the bullying and harassment was made the subject of a complaint under the Defendant's Harassment, Bullying and Incivility (“HBI”) Policy.

9 The Plaintiff replied to both the Initial Request and the Supplemental Request on 4 April 2023, however the Defendant took the view that the particulars provided were defective. The Defendant consequently sought further and better particulars of the further and better particulars (the Final Request) on 4 April 2023.

10 The Plaintiff provided its response to the Defendant's Final Request on 15 June 2023. Once again, the Defendant considered the Plaintiff's responses insufficient.

11 The Defendant filed its provisional Defence on 29 September 2023. The Defendant denies the Plaintiff's claims, and avers that the Plaintiff initiated the fist fight, and that because the Plaintiff initiated and committed violence against a coworker, the Plaintiff's employment was terminated in accordance with the Defendant's workplace policy.

12 By Summons dated 8 December 2023, the Defendant made an application to the Court seeking an order that the Plaintiff be compelled to provide proper responses (i.e. accurate particulars) to the Defendant's various requests for further and better particulars (the Application to Compel).

13 The Application to Compel was heard on 11 January 2024 and it was ordered, inter alia, that the Plaintiff shall on or before 24 January 2024 serve on the attorney for the Defendant the further and better particulars requested on 24 February 2023, 16 March 2023 and 4 April 2023 (that is the Initial Request, Supplemental Request and Final Request, together the Defendant's Requests). The costs of the Application to Compel were reserved.

14 On 25 January 2024, the Plaintiff filed its Amended Reply to the Request for Further and Better Particulars (the Amended Reply).

15 The Defendant did not consider the responses contained in the Plaintiff's Amended Reply sufficient, and on 26 January 2024 the Defendant made an application to strike out the Plaintiff's claim (the Strike-out Application). The Strike-out Application seeks an order that the Plaintiff's claim be stuck out by reason of the Plaintiff's failure to provide proper responses to the Defendant's Requests as required by the order of the Court made on 11 January 2024 (the Order to Compel). The Defendant also seeks its costs of the Strike-out Application.

THE LAW

16 The law as it relates to the Court's power to strike out a claim for insufficient pleadings was set out in the Defendant's written submissions, which I accept and have largely adopted below.

17 The Supreme Court of Bermuda has the inherent power, in addition to the power contained in Order 18 of the Rules of the Supreme Court 1985 (“ RSC”), to strike out a pleading that is inherently bad. Bullen and Leake and Jacob's Precedents of Pleadings (Twelfth Edition), provides the following at page 16:

The summary powers of the court to strike out pleadings are collected in one Rule and have been extended to “abuse of the process of the court”, which itself is derived from the inherent jurisdiction of the court.

18 Bullen and Leake also records the following words of Scrutton L.J. in Blay v. Pollard and Morris [1930] 1 KB 628 at page 8:

Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment. In the present case, the issue on which the judge decided was raised by himself without amending the pleading, and in my opinion he was not entitled to take such a course.

19 Also found on page 8 of Bullen and Leake, is the following commentary found in an article entitled “The Present Importance of Pleadings”, which was published in Current Legal Problems in 1960:

As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings … For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without [due amendment properly made]. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realms of speculation. … Moreover, in such event the parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised, by or against a party is equivalent to not hearing him at all and may thus be a denial of justice. The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called ‘Any other business’ in the sense that points other than those specified may be raised without notice.”

20 As to the purpose of pleadings, a party's pleadings must inform the opposing party of the case they have to meet in sufficient detail to enable that party to properly prepare an answer to the case made against them, not only in another pleading, but also at trial. This position is helpfully summarised in the Supreme Court Practice (1999) ( The White Book) as follows:

The requirement to give particulars reflects the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly, without surprises and, as far as possible, so as to minimise costs (a view approved by Edmund-Davies LJ. in Astrovlanis Campania Naviera SA v. Linard [1972] 2 Q.B. 611; [1972] 2 All E.R. 647). The...