DATED
the 10th day of January, 2000."
The
applicant supported her application to strike out the defence,
with an affidavit which in effect expanded the averments
in the statement of claim. At paragraph 2, 3, and 4 she
deposed to negotiation leading to her employment in the
defendant's business generally. At paragraphs 5 and 6 she
deposed to the scope of her employment. At paragraphs 8,
9, 10, 11, 12, 13, 14, 15, 16 and 17, she deposed to negotiation
leading to her appointment as agent, and the sale by her
of parcels of land on behalf of the defendant. Paragraph
18 is about renumeration, "the commission," that
the applicant says she was entitled to for the sale of the
properties.
On
11.4.2001, the respondent filed an affidavit in which replies
to the depositions in the applicant's affidavit were made.
For the first time, the respondent admitted having employed
the applicant as an agent, but in respect of different transactions.
For the second time, the respondent denied having engaged
the applicant as an agent for the purpose of the sale of
the
parcels of land in question. The respondent contended that
the transactions were carried out by one of it's directors.
Grounds
of the Application and Submissions
The
applicant stated in her application that it was made, "under
the inherent jurisdiction of the court and/or under the
Rules of the Supreme Court...." The grounds were that
the defence was an abuse of court process and that the defence
disclosed no reasonable answer in law and further, that
it tended to cause prejudice or delay in the trial of the
case. In his submission, learned counsel Mr. J. Courtenay
for the applicant, said that the respondent's defence comprised
mere denials without adding facts upon which the denials
were based and as such the defence was bad in law. The rest
of the submission focused mainly on there being no reasonable
defence; he based that on the falsehood in the denials by
the respondent.
Learned
senior counsel Mr. D. Barrow for the respondent, countered
the submission by urging that even if the defence comprised
only denials, that was adequate for the applicant's averments
which were also very brief and lacking in details.
Both
counsel for the applicant and respondent cited, Remmington
v Scoles [1897] Ch. 1 in support of their submissions.
Determination
In an application to strike out based on non disclosure
of reasonable defence (or reasonable cause of action), and
on the pleading being frivolous and vexatious or in other
ways an abuse of court process, evidence is rarely furnished.
On the rare occasions when evidence is furnished, it must
not be for the purpose of disproving the facts in the defence
(pleading), it must be for the purpose of proving that the
defence has been dishonestly delivered so as to delay or
divert the course of justice. Evidence is not led to prove
or disprove facts because at that stage the court is not
yet concerned with the truth or otherwise of the pleading.
The point has been made in, Remmington v Scoles,
the case cited, especially in the judgment of Lindley L.J.
at page 1098. In the case, evidence was accepted to prove
that in a previous action the defendant had admitted in
affidavit the facts he subsequently denied such as having
been paid £1,750 so that he could purchase the land
in question. It was held that his defence which comprised
denials, was a sham set up dishonestly and for the purpose
of delay.
After
reading the affidavit evidence for both sides and after
hearing both submissions, I formed the view that the circumstances
in this application are such that evidence should not have
been made available. The affidavit filed for the applicant
simply sought to confirm the facts upon which the claim
is based by discrediting the denials of those facts by the
respondent. It was not used to show that the defence was
a mere delaying tactic or a sham in other ways. The affidavit
for the respondent answered in similar way by trying to
prove the truth of the defence. Yes, I note that both the
statement of claim and the defence are scanty. The better
course to take, in my view, was that both parties should
have simply sought further and better particulars or served
notice to admit facts or interrogatories and asked for costs
if the defendant had unreasonably with-held the information.
Then
it does occur to one that looking at the whole application
without the name, "application for order to strike
out defence," given to it, one would take the application
for a summary judgment application under O. 15 r31.
It is in application for summary judgment made immediately
after appearance has been entered, that affidavit must be
and is used by the applicant/plaintiff to verify
his claim, which is really a way to bolster his case, and
used by the respondent/defendant to do likewise to his defence.
I accept
the submission of learned senior counsel, D. Barrow, that
given the brief statements in the statement of claim, the
brief defence was adequate. I add that the denial were not
just general denials. Take the central issue of the claim,
for instance, which is that the applicant, as agent of the
respondent sold some parcels of land on commission. The
defence is that, "the defendant denies that it employed
the plaintiff as its agent or agreed to pay her the alleged
or any commission about the sale of property as alleged
in the statement of claim or at all." In my view that
left the plaintiff in no doubt what the issue in the case
would be. It was a good defence no doubt. This case contrasts
sharply with Hildige v O'Farell (1881) 8LR Ir 158,
in which the denial of tenancy was struck out as embarrassing
and was for the purpose of delay because in an earlier action
the defendant had admitted tenancy.
It
is my decision that there are no facts to support a finding
of abuse of process; no demonstration of the defence having
been filed for ulterior motive such as delay, and no demonstration
that the application is frivolous and vexatious or an abuse
of process in any other way.
Beside
the submission of both counsel, it must be remembered that
the Court has discretion to order amendment or delivery
of better particulars instead of striking out, if the pleading
can be improved upon. The point was illustrated by the fact
that in Remmington v Scoles, the court, after
striking out, afforded the defendant opportunity to file
an honest defence. It is also illustrated by the fact that
O. 22 r31 is silent about the consequence
of striking out except for costs, and O. 28 r4
states entering judgment as one and not the only consequence
that may follow striking out defence.
The
affidavits filed for both sides have supplied facts I would
have ordered for to amplify both the statement of claim
and defence, had parties applied for. The defence as it
now stands together with the facts in the affidavit of Luis
Buenfil Duran, clearly discloses reasonable defence in law.
I understand the defence to clearly deny that the applicant
was engaged in the sale of the parcels of land in question,
but that she was engaged as agent in other transactions.
That cannot be a sham and therefore no defence to the claim
that the applicant was engaged as an agent for commission
in the sale of the parcels of land.
The
contention about prejudice and delay cannot be supported
by any facts. The applicant has not pointed out any disadvantage
occasioned or likely to be occasioned so as to show prejudice.
The defence was filed as long ago as 10.1.2000, the applicant
filed her application to strike out defence only on 16.6.2000,
some five months after. She was not in a hurry, can she
complain about delay?
I have
to mention that denial without citing other facts is not
necessarily bad defence. The judgment of Lindley L.J. in,
Remmington v Scoles is explicit on the point.
If there is any doubt, the provisions of O. 24 rr1
to 4 should clear the doubt. The provisions state
instances when mere denials will not be adequate defence,
so what do we conclude about instances not included in the
rules? Denials may be acceptable in those other instances.
The judgments of Morton L.J. and Tucker L.J. in a more recent
case in England, John Lancaster Radiators Ltd. v General
Motor Radiator Co. Ltd. and Others [1946] 2 All ER 685,
are instructive on the point.
Application
Dismissed
The
application for court order to strike out the defence filed
on 10.1.2000, and to grant leave to enter judgement, is
dismissed with costs.
Filed
this Tuesday the 8th day of May, 2001
At
the Supreme Court, Belize City, Belize.
Sam Lungole Awich
Judge