Attorney General of Antigua and Barbuda Claimant/Respondent v Lester Bryant Bird Asot Michael Bruce Rappaport (by Ruth Rappaport His Next Friend) Ihi Debt Settlement Company Ltd Bellwood Services S.A. Patrick A Michael Company Ltd Debt Settlement Aministrators LLC John E. St. Luce Antigua Barbuda Investment Bank Defendant/Applicant DSA LLC West Indies Oil Company Ltd Defendant/Applicant [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Blenman J |
| Judgment Date | 24 January 2007 |
| Judgment citation (vLex) | [2007] ECSC J0124-1 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO. ANUHCV0091/2006 |
| Date | 24 January 2007 |
IN THE HIGH COURT OF JUSTICE
CLAIM NO. ANUHCV0091/2006
Mr. Coniffe Clarke for Ninth Defendant/Applicant
Mrs. Nelleen-Murdoch for Eleventh Defendant/Applicant
Hon Attorney General Justin Simon QC with Mrs. Karen DeFreitas-Rait Deputy Solicitor General for the Claimant/Respondent
Blenman J; These are two separate applications by Antigua Barbuda Investment Bank (ABIB) and West Indies Oil Company Ltd (WIOC) respectively to strike out the Amended Claim brought against them by the Attorney General. Alternatively ABIB seeks to be removed as party to the Amended Claim.
The Court heard both applications on the 19th January 2007 and delivered oral decisions on the said day, on the conclusion of the arguments. The following represent the reasons for the decisions.
For the sake of convenience, I propose to deal with both applications in this ruling since they are in relation to the same Amended Claim.
The Claimant had filed the Claim Form against the first ten Defendants. The Claimant amended the Claim Form and the Statement of Claim. In addition, he was granted leave to join WIOC as a Defendant.
The Claimant, by way of Amended Claim Form sued the first Eight-named Defendants and the Tenth-Defendant on the basis of protecting the public interest in circumstances of alleged fraudulent misappropriation and misuse of public funds. In the Amended Claim and Statement of Claim, the Claimant seeks several remedies including declarations that the First-named Defendant, Mr. Lester Bird, the Second-named Defendant, Mr. Asot Michael, and Mr. John St. Luce have committed misfeasance in public office and that they in breach of public trust "wrongfully enabled the public funds, held formerly at Swiss American National Bank and later at ABIB to be misappropriated by Mr. Bruce Rappaport (Mr. Rappaport) and two of the Companies named as Defendants herein.
In the Amended Statement of Claim, the Claimant further averred that Mr. Bird who was the former Prime Minister of Antigua and Barbuda together with Mr. Michael who was then a Minister of Government together with Mr. Rappaport and the other Companies named as the Fifth, Sixth and Seventh Defendants, with the assistance of Mr. St Luce who was also a Minister, enabled Mr. Rappaport to fraudulent misappropriate or misuse public funds and caused those funds to be given to Mr. Rappaport and/or the two Companies.
In addition, it is alleged that monies were improperly diverted from accounts held by the Government of Antigua and Barbuda (GOAB) at ABIB. The Claimant alleged that ABIB is the successor in title to Swiss American National Bank.
The Claimant also averred that WIOC was controlled and managed by Mr. Rappaport through the instrumentality of National Petroleum Limited, the majority shareholder, who appoints five of the directors to the Board of WIOC and that Mr. Rappaport was instrumental in preventing various sums of money from being paid into the Consolidated Fund in accordance with WIOC's obligations. The Claimant further alleged that ABIB on the instruction of Mr. Rappaport paid monies into a Miami Bank account of the two Companies that are Defendants.
Based on those allegations, the Claimant sought a number of reliefs. These are as follows:
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(a) A declaration that the first-named Defendant, the second-named Defendant and the eight-named Defendant are guilty of wrongfully committing public funds to the third, fourth, seventh and tenth-named Defendants in reliance on the fraudulent misrepresentation of the third-named Defendant;
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(b) A declaration that the first through eight and tenth-named Defendants are personally liable to make good all monies unlawfully received by them;
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(c) A declaration that the third-named Defendant fraudulently misrepresented the terms of re-negotiated debts;
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(d) An Injunction restraining Antigua Barbuda Investment Bank from making monthly payments to Debt Settlement Administrators LLC and/or its assigns at Wachovia Bank N.A. in Miami, Florida, U.S.A or to any other accounts under its control and/or directive from any account of the Government of Antigua and Barbuda at the said Antigua Barbuda Investment Bank;
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(e) An Injunction restraining Antigua Barbuda Investment Bank from disposing of, dealing with, diminishing or transmitting any of the monies directly or indirectly received from Wachovia Bank, N.A. Miami, Florida in the accounts of the seventh-named Defendant and/or the tenth-named Defendant specifically in, but not limited to, account numbers 205030835 and 205030836;
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(f) An account of all monies belonging to the Government of Antigua and Barbuda and unlawfully come to the hands of the first, through seventh and tenth-named Defendants on the basis of the fraudulent misrepresentation of the third-named Defendant;
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(g) Alternatively or additionally an account of what money is due to the Government of Antigua and Barbuda from first, through seventh and tenth-named Defendants in respect of money received due to the fraudulent misrepresentation;
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(h) An order for payment by the first, through seventh and tenth-named Defendants to the Government of Antigua and Barbuda upon taking such account with interest thereon at such rate or rates as to the Court deems just from the date of receipt thereof until judgment or earlier payment pursuant to the equitable jurisdiction of the Court or alternatively pursuant to section 27 of the Eastern Caribbean Supreme Court Act, Cap. 143;
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(i) Such other orders and relief as to the Court seems just; and
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(j) Cost against all the Defendants except the ninth-named Defendant.
The Claimant also applied for and obtained injunctive orders including orders restraining ABIB from making monthly payments to the account of DBSA and or its assigns to Wachovia Bank N.A, in Miami, Florida, USA or to any other accounts in any bank or from any account of the Government of Antigua and Barbuda that is held at ABIB. The Claimant also obtained an order restraining ABIB from disposing, dealing with diminishing or transmitting any monies received directly or indirectly from Wachovia Bank.
The copy of the above order having been served on ABIB, it (ABIB) has complied with the terms of the Order.
I propose firstly to address ABIB's application and thereafter to deal with the WIOC's application.
In support of ABIB's application for the Amended Claim against it to be struck out alternatively for it to be removed as a party, Mr. Hewley Richardson, Country Manager deposed to an affidavit. Mr. Richardson says that ABIB having been served with a copy of the interim injunction has complied with its terms and intends to continue to do so. He indicates ABIB's intention to give undertakings to comply with the Court's order. In addition, he complains that ABIB is embarrassed by the proceedings since persons may think it was complicit in the alleged fraud. He seeks to have ABIB struck out as a defendant to the Amended Claim on the ground that there is no cause of action.
The Claimant opposes ABIB's application and says that it has a cause of action against ABIB. In addition, there is the need for disclosures of documents which are in ABIB's possession and are vital to the case. The Claimant also addressed the allegations that ABIB has in its possession monies which belong to the GOAB.
Learned Counsel, Mr. Coniffe Clarke submitted that the Court should strike out the Amended Claim against ABIB on the ground that there is no reasonable cause of action disclosed against ABIB. In the pleadings, there is no wrong doing alleged against the ABIB. In support of his contention, Counsel referred the Court to Part 26.3(1)b of CPR 2000 which provides as follows:
"In addition to any other power under these Rules, the Court may strike out a Statement of Case or part of a Statement of Case if it appears to the Court that:- (b) the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a claim…"
The White Book 2000 in its rubric to Part 3 3.4 (Power to Strike Out a Statement of Case) says that the said rule above covers cases which do not amount to a legally recognizable claim or defence. Further the power can be exercised at the stage of the filing of a Claim so that a Defendant against whom an ill-founded action is sought to be brought will be spared the needless expense in having to even initiate "striking out proceedings."
Mr. Clarke stated that Statements of Case which are suitable for striking out for failure to disclose reasonable grounds include those which raise an unwinnable case where continuance of the proceedings is without possible benefit to the respondent and would waste resources on both sides. He referred the Court toHarris v Bolt Burdon [2000] L.T.L February 2, CA: He also stated that "a Statement of Claim (or part thereof) is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence Bridgeman v McAlpine-Brown [2000] L.T.L. January 19, CA."
Halsbury's Laws of England, Fourth Edition, Vol. 37, Practice and Procedure notes in its rubric to paragraph 917, "Power to strike out a statement of case" that under CPR 3.4(2)(a), the equivalent rule of the United Kingdom, examples of claims which may be struck out include those which lack...
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