Sylvester Crossley v The Attorney General of Saint Christopher and Nevis

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ventose, J.
• Judgment Date: 05 April 2019
• Judgment citation (vLex): [2019] ECSC J0405-2
• Docket Number: CLAIM NO. SKBHCV2018/0261/0262
• Court: High Court (Saint Kitts and Nevis)
• Date: 05 April 2019

[2019] ECSC J0405-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. SKBHCV2018/0261/0262

In the Matter of an Application Pursuant to Section 56.7 and 56.8 of the Civil Procedure Rules 2000 and Section 3, 5, 7, 8 and 10 of the Constitution of Saint Christopher and Nevis

Between:

1. Sylvester Crossley

2. Vance Thomas

Claimants

and

1. The Attorney General of Saint Christopher and Nevis

2. Director of Public Prosecutions

3. Royal Saint Christopher Police Force

4. Constable Abigail Charles

Defendants

Appearances:

Ms. Simone Bowman and Ms. Dawn De Couteau for the Claimants

Mrs. Simone Bullen Thompson, Solicitor General, for the Defendants

Ventose, J.

1 On 24 October 2018, the Claimants filed applications by way of origination motion with supporting affidavits against the Defendants seeking identical declarations and reliefs as follows:

• 1. Leave for constitutional relief;

• 2. A Declaration that the Claimant (sic) arrest and/or detention for a period of (9) months without trial was unreasonable;

• 3. A Declaration that the Claimant (sic) arrest and/or detention for a period of (9) days (sic) without trial violated his constitutional right to personal liberty and was in contravention of the provisions of section 5(5) of the Constitution of St. Christopher and Nevis.

• 4. A Declaration that the Claimant was subjected to inhumane or degrading punishment and treatment, in contravention of section 7 of the Constitution.

• 5. An order that the Claimant is entitled to damages for unlawful arrest and/or detention pursuant to section 5(6) of the Constitution of Saint Christopher and Nevis (“ Constitution”);

• 6. An Order that the Claimant is entitled to compensation and damages pursuant to section 18 of the Constitution of the unconstitutional deprivation of his liberty and contraventions of his constitutional rights;

• 7. In the alternative, damages for

  • a. Malicious prosecution, and/or Misfeasance in public office;

  • b. False imprisonment and wrongful arrest;

  • c. Negligent breach of custodian's duty; and

  • d. Negligent investigation by police

• 8. General Damages and Special damages in an amount to be specified;

• 9. Aggravated Damages;

• 10. Exemplary and punitive damages;

2 The fundamental rights and freedoms of the Claimants allegedly breached are the right to protection of right to personal liberty and the right to protection from inhuman treatment. Significantly, the Claimants also claimed in the alternative for general, special, aggravated and exemplary damages for malicious prosecution and/or misfeasance in public office, false imprisonment and wrongful arrest, negligent breach of custodian's duty and negligent investigation by the police. The Defendants on 20 December 2018 filed applications with supporting affidavits for the applications by way of originating motion to be struck off and removal of the Third Defendant as a party, which applications were subsequently amended on 1 March 2019. The two applications by way of origination motion were consolidated by order of the court on 14 January 2019.

3 The decisions of the Privy Council in Jaroo v Attorney General of Trinidad and Tobago [2002] UKPC 5; [2002] 1 AC 871, [2003] 2 WLR 420 and Attorney General of Trinidad and Tobago v Ramanoop [2005] 2 WLR 1324 were applied in this jurisdiction in ( McMillian v Carty et al Claim No. SKBHCV2017/0380 dated 20 November 2018). In Carty, this court summarized Jaroo (at [10]) as follows:

Jaroo therefore confirms that: (1) the procedure by way of originating motion should be exercised only in exceptional circumstances where there is a parallel remedy; (2) before resorting to this procedure an applicant must first examine the nature of his claim to determine if there is a parallel remedy at common law or statute; (3) if there is a parallel remedy, resort to the procedure by way of originating motion will be inappropriate and an abuse of process; and (4) if, after the claim is filed, resort to that procedure becomes inappropriate, steps should immediately be taken by the applicant to withdraw the motion, and if it is not withdrawn that will also be an abuse.

4 The Claimants in submissions filed conceded that they have alternative private law remedies in their applications by way of originating motion as outlined above. Having read the applications by way of originating motion, the affidavits in support and the affidavits in response; and the applications to strike out and the affidavits in support and the affidavits in response, I am of the view that the Claimants have alternative remedies in the tort of wrongful arrest and false imprisonment, malicious prosecution and misfeasance in public office. These private law remedies are specifically pleaded in the Claimants' applications by way of originating motion, and the Claimants' constitutional claims seem to be secondary as the applications focus primarily on these torts. It is, therefore, clear that the applications by way of origination motion filed by the Claimants are an abuse of process insofar as they include claims for which there is a parallel remedy at common law. I am mindful that striking out a statement of claim is a draconian remedy that should be used in the clearest of cases and that in the circumstances of these cases the better option should be to grant leave to the Claimants to pursue their claims in private law.

5 However, not all the constitutional claims in the applications by way of origination motion are subject to the principle enunciated in Jaroo. In light of the conditions in which they were detained at Her Majesty's Prison, the Claimants have also alleged a breach of section 7 of the Constitution of Saint Christopher and Nevis which provides that a person shall not be subjected to torture or to inhuman degrading punishment or other like treatment. ( Browne v Attorney General of Saint Christopher and Nevis Claim No. SKBHCV2016/0074 dated 19 November 2018), a decision of this court, considered this issue as recently as 4 months ago. There can be no doubt that there is no equivalent private law remedy in respect of this issue in both applications. The Defendants' contrary view cannot be sustained. It is for the court at trial to determine whether, based on the evidence presented, there is a breach of section 7 of the Constitution of Saint Christopher and Nevis.

6 CPR 56.8(3) provides that:

(3) The court may however at any stage –

• (a) direct that any claim for other relief be dealt with separately from the claim for an administrative order; or

• (b) direct that the whole application be dealt with as a claim and give appropriate directions under Parts 26 and 27; and

• (c) in either case, make any order it considers just as to costs that have been wasted because of the unreasonable use of the procedure under this Part.

7 In Lucas et al v Chief Education Officer [2015] CCJ 6 (AJ), the Caribbean Court of Justice explained that:

[135] Harrikisoon must also be considered in light of new procedural rules which simplify the processes for initiating claims, strengthen the court's extensive case management powers and specifically authorise litigants to claim damages, as relief under the Constitution, in judicial review proceedings. Part 56 entitles a litigant to include in an...