Social Security Board v W.H. Courtenay & Company et Al
| Jurisdiction | Belize |
| Judge | Gonzalez, J. |
| Judgment Date | 18 April 2000 |
| Court | High Court (Belize) |
| Docket Number | 206 of 1997 |
| Date | 18 April 2000 |
High Court
Gonzalez, J.
206 of 1997
Ms. Lisa Shoman for the plaintiff.
Mr. Fred Lumor for the defendants.
Practice and procedure - Action for damages for fraudulent misrepresentation and breach of fiduciary duty — Charged with theft, obtaining property by deception — Defendant acquitted on criminal charges — Abuse of process — Issue estoppel — Whether the continuing civil proceedings amounted to an abuse of the process of the count on the ground that the jury in the criminal proceedings had already delivered its verdict on the same facts and issues — Finding that the defendant's contention failed since acquittals were not admissible in civil proceedings in Belize — Finding that issue estoppel had no application to the facts of the case.
On the 22nd April, 1997, the plaintiff issued a writ against the defendants claiming damages for fraudulent misrepresentation and breach of fiduciary duty with respect to the purchase of shares in Belize Electricity Company Limited (BECOL). An amended Statement of Claim was filed on the 23rd September, 1997, which stated, inter alia, that the defendants had induced the plaintiff to issue a cheque in the sum of $3,340,000.00 by representing that the plaintiff would receive shares in BECOL representing five percent of its share capital and that, acting on the said representation by the defendants, the plaintiff did, on the 28th July, 1992, issue a cheque in the said sum of $3,340,000.00 to the first-named defendant, which cheque was received by the second-named defendant and deposited into an account maintained by the first-named defendant. The Statement of Claim further alleged that no shares were in fact received by the plaintiff for the said sum of $3,340,000.00 and that, in consequence, the plaintiff had suffered loss and damage.
While this civil Action was still pending, the Director of Public Prosecutions on the 11th June, 1997 preferred an indictment against the defendants charging them with: (1) theft, contrary to section 145(1) of the Criminal Code, and (2) obtaining property by deception, contrary to section 159(1) of the Criminal Code. (The defendants were also charged with two other offences which are not relevant here). The particulars of theft and obtaining property by deception', as given in the indictment, were substantially the same as those set out in the said Statement of Claim filed in the civil Action.
On the 20th August, 1997, the two defendants were acquitted by the jury of all charges in the criminal trial.
The civil Action, however, continued, and on the 11th May, 1998, a judgment in default of defence was entered against the defendants for the sum of $3,340,000.00 with interest. On the 2nd February, 1999, the default judgment was set aside by the Supreme Court and the defendants were given leave to file a defence which they did file on the 8th February, 1999. The plaintiff, however, took no steps to set down the case for trial even though the pleadings had closed. On the 8th February, 2000 (exactly one after filing their defence), the defendants took out a summons under O. 37, r.10 of the Supreme Court Rules of Belize, for an order that the Action be dismissed for want of prosecution. This application came before me for hearing on the 25th February, 2000, and counsel for the defendants sought leave to amend the Summons to substitute the following ground for the ground stated in the Summons: “That this action be dismissed on the basis that it is an abuse of the court process.”
Leave was granted and the Summons amended accordingly. In the result, counsel for the defendants argued the case only on the above-stated new ground and abandoned the original ground. Mr. Fred Lumor, counsel for the defendants, argued that this civil Action be dismissed as an abuse of the process of the court on the ground that the facts and issues in this case had already been the subject of criminal proceedings before a jury, and that the jury had already delivered its verdict on the 20th August, 1997 on the self-same facts and issues, with the acquittal of both the defendants. He argued that the civil Action was an attempt by the plaintiff to re-litigate the same issues and that this amounted to a direct attack on the said decision of the Supreme Court given on the 20th August, 1997, whereby the defendants were found not guilty. Mr. Lumor added that it was a scandalous attack on the courts and that the court should exercise its inherent jurisdiction and dismiss the Action summarily.
Counsel for the plaintiff, Ms. Lisa Shoman, made no submission in reply except to say that she could not “usefully add anything to that which has already been said by Mr. Lumor”. However, the learned counsel was careful to add that her clients had not given her leave to concur with the submissions of Mr. Lumor. As Mr. Lumor's submission runs counter to the established practice in Belize and several other common law jurisdictions, it is necessary to examine his submissions in some detail. The main authority relied upon by him was the House of Lords Decision in Hunter v. Chief Constable of West Midlands [1981] 3 All E.R. 727. The facts in this case were that the police arrested the plaintiff with five others on 21st November, 1974 following the death of 21 people in bomb explosions in two Birmingham public houses. On 23rd November the plaintiff and the other accused confessed to the bombings and were charged with murder. On 25th November they were brought before a magistrate who ordered them to be remanded in custody. They were admitted to prison. When the accused were again brought before a magistrate, on 28th November, their faces were badly bruised. At their trial for murder the accused claimed that they had been beaten up by the police to make them confess and that therefore their confessions of 23rd November, on which the Crown heavily relied, were inadmissible. At a lengthy trial within a trial the judge heard evidence from the accused and the police officers, and ruled that the confessions were admissible. The allegations and the evidence were then repeated to the jury to enable them to assess the weight to be given to the confessions. The accused were found guilty, and an appeal to the Criminal Division of the Court of Appeal, at which no complaint was made of the trial judge's ruling that the confessions were admissible, was dismissed. The accused then brought a civil Action against the chief constable in charge of the police officers claiming damages for assault by the police. The chief constable applied to have the Action struck out on the ground that it raised an issue identical to that which had been finally determined at the accuser's murder trial. At the hearing of the chief constable's application, the accused adduced new evidence consisting of statements by the prison officers, and expert evidence from a forensic specialist who considered that at least some of the accuser's injuries had been inflicted before they left police custody. The judge held that the new evidence prevented him from striking out the civil Action, because it was reasonably conceivable that another tribunal, acting judicially, might accept at least part of the accuser's case. On appeal by the chief constable, the Court of Appeal held that the accuser's civil Action should be struck out because it would be an abuse of the process of the court...
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