High Court Master Alvin Shiva Pariagsingh has “dismissed” an application by the Commissioner of Police, the Attorney General, and the Minister of National Security to “strike out” Claim No. DOMHCV2018/0064 brought by business places [1] ARCHIPELAGO TRADING LTD [2] GREENS WHOLESALE & CO. LTD [3]H.H WILSON & CO. LTD [4] JOSEPHINE GABRIEL & CO. LTD [5]L. A DUPIGNY & CO. LTD[6]PIRATES LTD.
During and after Hurricane Maria in September 2017 several businesses were on the receiving end of widespread looting.
In their statement of claim, the businesses said the police had assured the nation in an address that “the police had made all the necessary arrangements and put in place all mechanisms and would be ready to respond in full force to any emergency or accident and to ensure that persons with criminal intent would not be given the opportunity to commit and acts of lawlessness in the city and or island wide.”
They claim that “Members of the Police Force were seen facilitating persons involved in the looting and destruction of our client’s business places,” the businessmen said in a letter to the government before filing the suit, claiming that this was a “breach of statutory duty and negligence.”
They further stated that the failure of the police to “preserve the good peace; prevent looting in the Claimants business places and other institutions thereby creating an unsafe and lawless environment and negligent and a breach of their statutory duties.”
But in their defense, the defendants contended that the matter ought to be struck out since “the law of the Commonwealth of Dominica does not allow or provide for a claim at common law or statute for compensation against the Defendants for loss including theft following a riot, civil commotion, strife or civil disobedience.”
But in his ruling, Master Pariagsingh disagreed and explained that he considers that “there are important issues raised in the case at bar and it is prudent to allow a trial in the public interest.”
The next issue to be determined is whether the statement of claim properly pleads any facts which go towards establishing any exceptional circumstances.
“The Court is satisfied that the pleadings are paragraphs 25 and 26 C to H taken at its highest to be true, does disclose grounds for bringing of a claim on the basis of a duty of care existing as an exception to the general rule. “
“For completeness, I will deal with the grounds that the Claimants have not pleaded any reasonable cause of action against the Second and Third Defendants. The Claimants’ pleading is that the Second Defendant is the Minister responsible for the police force pursuant to Section 3 (2) of the Police Act 25. It is pleaded that the Commissioner of Police’s command of the force is subject to the general orders of the Second Defendant. In their defense, the Defendants admit this paragraph but say it is irrelevant.
The Claimants further pleaded that it was the responsibility of the Government through the Second Defendant to ensure that the force is adequately manned, armed, and equipped to provide security. The Defendants do not deny this in their defense. Instead, they say that the imposition of such a responsibility in light of the magnitude of the hurricane was unreasonable.
The Claimants pleaded case, in a nutshell, is that a duty of care arose by the assumption of duty, specific assurances were given, wilful acts or omissions, or exceptional circumstances. Their factual contention is that the police officers were under the command of the First Defendant who was subject to the general orders of the Second Defendant.
Whilst no robust arguments were made at the hearing regarding striking out the Second and Third Defendants, although raised as a ground, the Court is of the view that it is not in the good administration of justice or furtherance of the overriding objective to strike out any parties at this stage. This is so as:
- The proceedings have been pending for four (4) years and the parties’ point was never raised;
2. The parties including those who sought to be removed, have all participated in these proceedings;
3. The parties including those who sought to be removed, have all filed evidence in these proceedings; 26 Chapter 7:80 of the Laws of the Commonwealth of Dominica
4. The Defendants are represented by the office of the Attorney General and do not have separate legal representation;
5. The Defendants have filed one joint defense to this claim;
6. There is very little prejudice in the Defendant’s remaining parties to the claim; and
7. Based on the pleaded defense, it is unlikely that any personal liability will attach to the First or Second Defendant personally if the Claimants are successful. For these reasons, the Defendants’ application to strike out is dismissed.
COSTS: The general rule is that costs follow the event. There are no reasons to depart from the general rule. Given the lateness of this application, the Court is not minded to apply a reduction to the costs recoverable by the Claimants on this application. Applications to strike out ought to be made early or certainly at least as soon as a party feels the conviction to make them. They ought not to be made on a pleading point after witness statements are filed.
Such a litigation decision will be met with an order for costs to reflect the Court’s displeasure at the time that this application was made. [61]The Defendant must therefore pay the Claimants’ costs of this application to be assessed by this Court in default of agreement within 28 days from today on the application of either party
Appearances: Prof. Leslie Thomas KC leading Noelize Knight – Didier, Joelle Harris, and Indira St. Jean for the Claimants; and Antony Astaphan SC (abs) leading Dr. David Dorsette, Vanica Sobers –Joseph Pearlisa Morvan and Kayan Toussaint for the Defendant. Astaphan has told Nature Isle News (NIN) that they will appeal the decision.
See attached the full decision https://www.eccourts.org/archipelago-trading-ltd-et-al-v-the-commissioner-of-police-et-al/
Interesting case. Might be precedence setting for the region. Hold lazy incompetent governments accountable.