Wandra Ann Pedro v Department of Child and Family Services
| Jurisdiction | Bermuda |
| Judge | Alexandra Wheatley, AJ |
| Judgment Date | 28 November 2019 |
| Neutral Citation | [2019] SC Bda 85 Civ |
| Court | Supreme Court (Bermuda) |
| Docket Number | CIVIL JURISDICTION 2018 No: 245 |
| Date | 28 November 2019 |
[2019] SC (Bda) 85 Civ (28 November 2019)
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2018 No: 245
Applicant (Defendant) Mr Brian Moodie (Attorney General's Chambers)
Respondent (Plaintiff) Ms Pedro In Person (Via Teleconference)
Strike Out Application (RSC Order 18/19); Limitation Act
RULING OF Alexandra Wheatley, AJ
The Plaintiff filed a Writ of Summons dated 10 July 2018 (“the Writ of Summons”). The underlying facts of this case relate to the Plaintiff's son (who under the supervision and ultimate the care) of the Department of Child and Family Services (“DCFS”) by way of applications made by DCFS to the Magistrates' Family Courts. The Plaintiff's allegations are, inter alia, that DCFS was negligent in making their applications for the supervision orders and ultimately a care order in relation to her son. These are applications which were made over a few years between 2008 and 2010. The Plaintiff is seeking damages in the sum of $250,000. The Plaintiff was very descriptive in her statement of claim as to why she is seeking damages, but ultimately it can be summarized as pain and suffering.
The Plaintiff alleges her pain and suffering was caused by actions of DCFS which amount to criminal charges such as, child abduction, unlawful removal of her son, falsification of reports/records, suppression/omission of evidence, fraud. She also alleges DCFS have caused damage to her reputation and inflicted trauma on her. Moreover, the statement of claim averred to make claims on behalf of her son, who is now twenty years old, for pain and suffering.
At the first appearance for directions in the matter on 22 August 2019, Mr Moodie indicated he would be filing an application to strike out the Plaintiff's Writ of Summons. Directions were given, inter alia, for the timeframe of filing of the formal strike out application and the filing of skeleton arguments. The matter was set down for a one-half day hearing for this application.
The Defendant's application seeks to strike out the Plaintiff's Writ of Summons on the following grounds:
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a) The pleadings disclose no reasonable cause of action;
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b) The claim is vexatious and frivolous; and otherwise
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c) The claim constitutes an abuse of process.
In order to preserve transparency, and to give a general understanding of Ms Pedro's conduct in this matter, Ms Pedro e-mailed the courts and myself on many occasions both following the directions hearing, but prior to the hearing as well as following the hearing itself attempting to make further submissions. Consequently, the administrative staff as well as the Acting Registrar (who is the Assistant Registrar) directed Ms Pedro (which she has also been advised on several occasions by myself in my substantive capacity as Registrar, as well as by other administrative staff, in relation to other cases she is involved in before the courts) it was inappropriate to e-mail me directly particularly when she was attempting to make submissions in terms of the decisions I had made.
Ms Pedro also attempted to make submissions to the Governor that I should not have conduct of this matter and also attempted to make further submissions in relation to this application following the hearing despite being given several opportunities to ensure that she had fully put forward all of her submissions during the hearing.
I must address these inappropriate attempts to interfere with the proper and fair adjudication of this application. I have not considered any of Ms Pedro's e-mail correspondence outside of her skeleton argument she relied on at the day of the hearing sent to myself or to the courts in relation to making a determination of this application.
For the purpose of completeness, it should be noted these proceedings initially included the Senior Magistrate, Juan Philip Wolffe, Magistrate Tyrone Chin and Miss Ashley Smith as her position of Court Associate in the Magistrates' Family Court. At the first directions hearing, I brought it to the Plaintiff's attention that Magistrates could not be held personally liable for decisions made in their judicial capacity. This was accepted by the Plaintiff.
As it related to Miss Smith acting in her course of employment with the Judicial Department as a Court Associate in the Magistrates' Family Court, the Plaintiff also accepted that it was not Miss Smith who played any decision-making role as it relates to the case and was merely carrying out her employment function as a result of the decisions made by the Courts. As such, the parties' consented to these parties being removed as Defendants to this matter.
Order 18, Rule 19 of the Rules of the Supreme Court 1985 (“the RSC”) provides the Court with the jurisdiction to determine this application as well as sets out the grounds for which such an application would be successful. Order 18, Rule 19 states as follows:
“18/19 Striking out pleading and indorsements
19 (1)The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that—
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court;
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application under paragraph (1)(a).
(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.”
The White Book (1999 edition) provides at 18/19/10:
“A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 WLR 688; [1970] 1 All ER 1096, CA). So long as the statement of claim or the particulars ( Davey v Bentinck [1893] 1 QB 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak and not likely to succeed is no ground for striking it out ( Moore v Lawson (1915) 31 TLR 418, CA; Wenlock v Maloney [1965] 1 WLR 1238; [1965] 2 AllE.R. 871, CA): …” [Emphasis added]
In the Supreme Court Ruling of the Learned Justice Shade Subair Williams (then Registrar of the Courts of Bermuda) in David Tucker and Hamilton Properties Limited [2017] SC (Bda) 110 Civ (11 December 2017), she addressed the test for what is deemed to be scandalous, frivolous or vexatious as well as what amounted to an abuse of process. Paragraphs 21 through 24 state as follows:
“‘Scandalous, Frivolous or Vexatious’
Scandalous
21. A complaint that a pleading is ‘scandalous’ necessarily imports an allegation that the pleading is grossly disgraceful, false and malicious or defamatory. Scandalous claims are irrelevant to the proceedings and are invariably liable to be struck out on the basis that they are improper.
Frivolous and Vexatious
22. Justice Meerabux in The Performing Rights Society v Bermuda Cablevision Limited 1992 No. 573 at page 31 considered the meaning of frivolous’ and ‘vexatious’: “…It is pertinent to mention that the words “frivolous or vexatious” mean cases which are obviously frivolous or vexatious or obviously unsustainable. Per Lindley L.J. in AttorneyGeneral of Duchy of Lancaster v L. & N. W. Railway [1892] 3 Ch. 274 at 277. Also when “one is considering whether an action is frivolous and vexatious one can, and must, look at the pleadings and nothing else. One must look at the pleadings as they stand.” Buckhill L.J. in Day v William Hill (Park Lane) Ld. [1949] 1 K.B. 632 at 642.” However, Day pre-dates the 1985 Supreme Court Rules and the new CPR regime which introduced the Overriding Objective. RSC O.18/19(2) only excludes the admissibility of evidence on the grounds that no reasonable cause of action or defence is disclosed. Evidence may now be filed in support of grounds that the pleadings are ‘scandalous, frivolous or vexatious’.
‘Abuse of Process’
Misuse of procedure
23. In Michael Jones v Stewart Technology Services Ltd [2017] SC (Bda), Hellman J considered the meaning of ‘abuse of process’ by reference to Lord Diplock's passage in Hunter v Chief Constable [1982] AC 529 at 536 C: “It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied…”
Delay in Prosecution of Claim
24. Kawaley CJ considered the legal principles relevant to a strike out application on grounds of abuse ofprocess in Jim Bailey v Wm E Meyer & Co Ltd [2017] Bda LR 5 at paras 12–25. The issue underlying the abuse of process in “ Bailey v Meyer” was p pinned to delay in the, prosecution of the claim. Kawaley CJ summarily rejected the submission that civil want of prosecution was governed by the same law applicable to an accused's constitutional right to be tried within a reasonable time. The Court cited “ Biguzzi v Rank Leisure, plc” [1999] 4 All ER 934 (CA) where the High Court reversed a deputy district judge's decision to strike out the claim. The reversal on appeal in...
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