Judges of the Eastern Caribbean Court of Appeal have dealt a blow to ARCHIPELAGO TRADING LTD, GREENS WHOLESALE & CO. LTD, H.H. WILSON & CO. LTD, JOSEPHINE GABRIEL & CO. LTD, L.A. DUPIGNY & CO. LTD, and PIRATES LTD who won round one of a court battle between, THE COMMISSIONER OF POLICE, THE MINISTER OF JUSTICE, IMMIGRATION AND NATIONAL SECURITY and THE ATTORNEY GENERAL of Dominica.
Background
On Monday 18th September 2017 at about 7.30 pm, Hurricane Maria struck the island of Dominica. The category 5 hurricane generated strong winds and heavy rains until about 4 am on the following day, causing major damage to buildings and other infrastructure on the island. After the wind and rain from the hurricane had subsided, there was widespread looting of business places in Roseau and its environs, which continued until about 30th September 2017.
The respondents (who were the claimants in the court below) owned and operated several businesses in Roseau and claimed to have suffered significant loss and damage as a result of the looting of their business places. By claim form and statement of claim filed by the respondents on 20th March 2018, they alleged breach of statutory duty and negligence by the appellants (who were the 5 defendants in the court below) for failing to prevent damage to and looting of their business places, resulting in significant loss and damage to the respondents.
On 19th April 2018, the appellants filed their defense and, almost 4 years later, the matter not having proceeded to trial, on 15th March 2022, the appellants applied to strike out the respondents’ statement of case under CPR 26.3(1)(b) and (c). Submissions in support of the application were filed on 24th May 2022, submissions in opposition were filed on 8th July 2022 and reply submissions were filed on 23rd September 2022. The learned master heard the strike-out application on 10th November 2022 and delivered his decision on 31st January 2023, wherein he dismissed the application to strike out the statement of claim and awarded costs to the respondents.
In a judgment penned by Michel JA and agreed to by Gertel Thom and Margaret Price Findlay Justice of Appeal they explained that “In terms of special circumstances which could give rise to an exception to the general rule, the party seeking to establish that special circumstances exist must specifically plead and prove the relationship which gives rise to these special circumstances.”
“In so far as there are special circumstances in this case, they are all in the direction of applying rather than accepting the general rule. It is important to remember that the factual genesis of this case lies in the catastrophic category 5 hurricanes that struck Dominica in September 2017,” the Appeal Court Judges stated.
“Accordingly, in this case, I am of the view that the public policy reasons for refusing to impose a duty of care outweigh the public policy of providing compensation for tortiously caused damage or injury.”
The Judges explained further, “Concerning the question whether, on the particular facts of this case, the police should be held to have assumed responsibility for the safety and security of the business places of the third and fourth respondents because of an alleged agreement between them and the police, the pleaded facts of the case do not lead to this outcome.”
“Where a claim is based upon an oral agreement, the particulars of the claim should set out the contractual words used and state by whom, to whom, and when and where, they were spoken. The submissions by the respondents by which they seek to extract an assumption of responsibility from public statements made by the police and governmental officials will not avail them.
There is no essential feature differentiating the relationship of the police with the respondents and their relationship with other members of the public, several of whom also suffered major damage from the hurricane.
The pleaded facts of this case derived from the claim form and statement of claim, and also from the defense, combined with the clear principles of law applicable to the case, do not give rise to a cause of action that should lead to a trial, which is bound to fail. [56] I did not address the claim for breach of statutory duty by the appellants which was made by the respondents in their statement of claim, because both at the hearing in the court below and before this Court the respondents conceded that this claim could not be maintained.
In the circumstances, the master erred in principle in dismissing the strike-out application and sending to the court for trial a matter which can only properly lead to one outcome, which outcome will be unfavourable to the party making the claim and will therefore be a waste of the litigants’ resources and the court’s time. His decision exceeded the generous ambit of reasonable judicial disagreement, was clearly or blatantly wrong, and should be set aside.
Conclusion
In his judgment in the court below, the master agreed that, although subject to exceptions, no duty is owed by the police to individual members of the public. In the same judgment, the master however agreed with counsel for the respondents that the issue of the duty existing is not settled and that this very involved argument on the state of the law is sufficient to deny the application to strike out the claim. The master further stated that due to the important issues raised in the case, it was prudent to allow a trial in the public interest.
Order
For all the foregoing reasons, I will allow the appeal, set aside the decision of the learned master, and strike out the claim. I will also award costs to the appellants to be assessed if not agreed upon within 21 days.
Find attached the link to the judgment
https://www.eccourts.org/judgment/the-commissioner-of-police-et-al-v-archipelago-trading-ltd-et-al
These businesses suffered losses when people decided to loot now these same people blaming Government when businesses are closing.