Dante Tagliaventi Claimant v RBTT Bank Caribbean Ltd Defendant [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Remy J |
| Judgment Date | 30 May 2012 |
| Judgment citation (vLex) | [2012] ECSC J0530-6 |
| Date | 30 May 2012 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO. ANUHCV 2012/0003 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. ANUHCV 2012/0003
Mr. Lawrence Daniels for the Claimant
Ms. Ann Henry for the Defendant
Remy J.: The Claimant Dante Tagliaventi is a businessman. The Defendant RBTT Bank is a banking institution registered in Antigua and Barbuda and operates and conducts business in St. John's, Antigua. The Claimant was at all material times, a customer of the Defendant bank.
The facts as pleaded in the Claim Form and Statement of Claim filed on 3 rd January 2012 are as follows:-
The Claimant owns, operates and manages a business at Heritage Quay known as "Treasure of Life". His business specializes in gold and diamond jewelry sales along with leather bags and wallets. The Claimant applied for and opened three accounts at the Defendant Bank. The said accounts were namely, (i) a U.S. Currency account, (ii) a business account, and (iii) a Supreme Savings Account. By letter dated 27 th October 2011, (the Letter) the Defendant gave the Claimant notice that it intended to close his (the Claimant's) accounts by 28 th November, 2011. The reason for the closure as contained in the Letter which was exhibited to the Claimant's Statement of Claim was stated thus: "….Our policy guidelines require us to risk assess our client portfolio on a regular basis. Regretfully at times, we are left with no other choice but to end client relationship as a result of changed risk profiles which no longer fit our risk appetite. After careful consideration, we advise that we are not in a position to maintain our banking relationship with you and accordingly the (following accounts) held with RBTT Bank Antigua will be closed." As a result, the Claimant wrote to the Defendant requesting an extension of time for an additional month to make adequate banking arrangements. The Defendant acceded to the Claimant's request and extended the time for closure until 28 th December, 2011.
The Claimant states that he approached several other banks and they all refused to open a business account for him. He states that the Defendant knew or ought to have known this, since he (the Claimant) was required to disclose this information to the other banks and state the reason for opening a new account, the Defendant's bank having closed his account. He states further that on the 28 th December 2011, Ms. Gardiner, an employee, servant and/or agent of the bank telephoned him and informed him "that his account would be closed on the 28 th December, 2011 and that he should conduct no further activities on the said account as it (the Defendant Bank) was going to remove his credit card machine from his business place."
In paragraph 8 of his Statement of Claim, the Claimant states that "by virtue of the Defendant closing his (the Claimant's) account," he is "unable to write any cheque to pay his creditors, staff, rent, utilities and as such the Defendant is forcing him to close his business that he operated for the past 30 years." He states that "the Defendant has breached its contract with him by arbitrarily closing" his account when he was not in breach of any rule or regulation of the bank. The Claimant states that he will lose in excess of $30,000.00 per week; further, that the Defendant has directly or tacitly conspired with others to limit the supply of banking services to him, thereby forcing him out of business by closing his bank accounts on 28 th December, 2011.
The relief sought by the Claimant is stated as follows:-
"(1) A breach of contract in that the Defendant closed the Claimant's account when the Claimant did not breach any law or regulations pertaining to his account or relationship with the bank.
(2) A Declaration that the Defendant has directly or tacitly conspired with others to limit the supply of banking services to the Claimant thereby closing the Claimant's accounts and forcing the Claimant out of business.
(3) A Declaration that the Respondent's notice to the Claimant as to the closure of the Claimant's accounts to take effect on the 28 th December, 2011 constitutes a repudiation of contract between the Defendant and the Claimant for which the Claimant is entitled to damage."
The Claimant also claims "costs, Attorney costs and interest."
By Notice of Application filed on the 3 rd January 2012, the Claimant sought an interim injunction prohibiting the Respondent whether by themselves, their servants or agents from closing or attempting to proceed with the closure of his accounts. At the date of the said application, the Claimant's accounts had already been closed. After hearing arguments from Counsel for the parties, the Court dismissed the application for the interim injunction.
On 1 st March 2012, by Notice of Application, the Defendant applied to the Court for an Order:-
"1. Striking out and dismissing the Claim Form filed in the captioned matter on the 3 rd January, 2012;
2. Requiring the Claimant to pay the Defendant/Applicant's costs; and/or
3. For such further or other relief as the Court deems just and appropriate in the circumstances."
The ground of the above Application was stated thus: "No cause of action is made out by the Claimant against the Defendant, or at all, on the Claim Form and Statement of Claim filed herein." The Notice of Application was filed pursuant to Part 26 of the Civil Procedure Rules ( CPR) 2000. It was accompanied by an Affidavit in Support, deposed to by Ms. Cassandra Ryan, the Branch Manager of the Defendant Bank.
The above Notice of Application came up for hearing before the Court on the 10 th May, 2012. Counsel for the parties made oral submissions to the Court and the Court reserved its ruling in the matter.
Learned Counsel for the Defendant Ms. Ann Henry in her oral submissions stated as follows:-
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a) No cause of action is disclosed in this matter. Paragraph 9 of the Statement of Claim sets out the basis on which this claim is brought. The paragraphs before are in the nature of evidence as to notice being given for the closure of the bank account, i.e. — paragraphs 3-8. These paragraphs essentially set out the notice given for the closure of the accounts and the action taken relative to that.
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b) In paragraph 9, the Claimant asserts a breach of contract by reason of the closure of the accounts. Paragraphs 10 and 11 purport to support the assertion of a breach. Paragraphs 12 and 13 are of a formal nature.
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c) At the heart of the matter is an assertion of a breach. The Claimant alleges that the closure of the account is the breach of the contract. This is why the Defendant relies on the cases of Prosperity Ltd v Lloyds Bank Ltd.1; and Joachimson v. Swiss Bank Corp.2.
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d) The principles on which the Court acts are well known to the Court and can be found in the Court of Appeal cases of Citco Global Custody NV and Y2K Finance Inc3; and Ian Peters and Robert George Spencer4.
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e) The one issue on which the instant case turns may be framed in the following question: "Did the action of the Defendant in closing the accounts of the Claimant in the circumstances give rise to a cause of action?" Counsel submits that the answer is in the negative. She states that, as a matter of law, even if one accepts the facts as pleaded by the Claimant in the Statement of Claim, it does not give rise to a cause of action.
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f) The facts as pleaded fall squarely within the legal principles as enunciated within the Prosperity and Joachimson cases. For that reason there is no cause of action and the claim must fall away. The facts as given are:-
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1. Notice was given — paragraph 4 of the Statement of Claim
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2. Extension was given — paragraph 5 of the Statement of Claim
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3. Thereafter, the accounts were closed.
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g) Those are the facts on which the Claimant relies in his Statement of Claim. Those facts cannot give rise to that cause of action, namely, a breach of contract.
The rival submissions of Mr. Laurence Daniels, Learned Counsel for the Claimant, are as follows:-
- The cause of action arose when the Defendant bank closed the Claimant's account on the 28th December, 2011. This in and of itself is a breach of contract, because the Claimant did not breach any laws or regulations pertaining to his account or relationship to the Defendant. 2. The Defendant has directly or tacitly conspired with others to limit the supply of banking services to the Claimant, thereby closing the Claimant's account and forcing the Claimant out of business. 3. The Defendant's notice to the Claimant as to the closure of the account which took effect on the 28th December 2011 constituted a repudiation of the contract between the Defendant and the Claimant for which the Claimant is entitled to damages.
Learned Counsel also relied on the case of Prosperity Ltd. V Lloyd Bank Ltd. (supra).
In her Reply, Ms. Henry submitted that the Prosperity case is not identical with the case before the Court; that the facts are not identical. The conclusion reached in the Prosperity case is not really of any moment in considering the instant case; it is the principle of the case which is the important point. She states that there is no pleading before the Court that there was any special contract between the parties that would affect the Bank's right to close the account. Further, in the Prosperity case, there were additional circumstances, namely the Insurance Scheme. It is because of that scheme, that the Court reached the conclusion that a month's notice was not sufficient notice. No such circumstances exist in the case at bar.
By CPR 26.3(1):
"….the court may strike out a statement of case or part of a statement of case if it appears to the court that -
(a)………
- ...
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