Submitted by Cherfleur
Social Justice Network & Clinic
In the High Court of Judicature
CV871 of 2019
After 10 years the Prospers were brought before the High courts on a Claim for compensation for items removed and damaged, damages for trespass, duress, loss of income and a declaration of the contents of the garage bags and other items allegedly dumped from the dwellings.
In response they applied for a strike out they claimed:
- they were Agents working on behalf of the owner
- the same matter was tried before the Magistrate’s Courts (res judicata)
- the claim is Statute barred
Yesterday Monday August 10 during Oral Submissions the first two claims were withdrawn. It was argued on their behalf re #3 that the cause of action occurred in 2009 and therefore was way over the limitation of actions bar.
YOU DON’T KNOW WHAT YOU DO NOT KNOW
The claimant claimed that there was an agreement between the Prospers the Police to return the items taken to their home and compensate for those damaged and allegedly dumped and since none or any of the agreement was upheld, limitations does not apply.
The Defence then claimed that the particulars to the above were not properly pleaded.
The Claimant claimed it was sufficiently so as per Affidavit/Statement of Case. Matter adjourned for Decision.
It is staggering to discover that many Attorneys in Barbados learned that civil cases are to begin with Claim Form and Statement of Case, as per CPR, and it seems that they forget all about the other parts that make up the Statement of Case, time and time again. In Hannigan v Hannigan [2000] All ER (D)693 at appeal the Lord Justice Denning said that:
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The new rules should be construed widely and generously to give effect to its manifest intentions: “I think that any application to the court, however informal, is a ‘proceeding’’. There were ‘proceedings’ in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the court.”+
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He further quoted Bowen LJ in 1887 who was quoted by Holroyd Pearce LJ in Pontin v Wood (1962) 1: “It may be asserted without fear of contradiction that it is not possible in the year 1885 for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistake step, in his litigation.”
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“Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgement or order therein.”
Now, I really don’t know what all this means. You tell me.
There are two despicable practices operating here.
The prevalence of Landlords breaching Tenants’ rights to peaceful enjoyment.
Reckless Attorneys advising clients/Landlords or Agents to change locks or other.
These are contemptible acts and when it passes the wrong person/Tenant this is what happens.
This scourge must stop. Tenants are humans. Tenants’ children’s lives matter.
The Claimant claim is that sometime between January and April 2009 Linda and James Prosper of Diamond Valley, St Philip entered into a premises at West Terrace allegedly acting on instructions from the Landlord Reba Euline and Mr Harcourt Gill of Smith & Smith and removed various personal items belonging to the occupants of the house.
When the matter was reported to the Holetown Police Station the Prospers claimed they were instructed to change lock and throw out items and repossess property because the neighbours told them that the Claimants migrated overseas..
Upon questioning it was found that there was no eviction order. The Claimant reported that the items removed ought not to have been dumped because they were unique, collector’s items, electronics, antiques, paintings and very valuable. Among them a common GE Cordless phone and GE Digital Answering Machine. Estimated value is thousands of dollars. Threatened with conviction Mr Prosper gingerly volunteered to compensate for the initial items reported missing. The interviewing Officer after careful analysis of the Claimants complaint (that if the purpose was to repossess the premises then all of the items, including furnishings would also have been dumped.but instead they remained in the house) warned the Prospers that they should return any items they knew they had removed to their house and compensate the Claimant or be charged for a crime. The parties agreed to this and to keep the peace.
The Prospers had left their wet and dry vacuum at the premises and returned for it. The Claimant told them they won’t get it until they returned her items. The Prospers returned another time in the absence of the Claimant, entered again without an Order, removed their vacuum, dismantled and gathered various items from around the dwelling and dumped them together in the living area. Another report was made to the Holetown Police Station but the Officer on duty remarked that the people want their house and you should leave and pursue legal action.
The Claimant vacated the premises in October 2009. During packing many more items from cupboards and books from shelves were discovered missing totalling tens of thousands of dollars. The Claimant on vacating advised the Prospers of so doing and asked when they intended to return and compensate the Claimants. They gave no specific time. Complaints and requests for criminal charges to be laid against the Prospers to Stn Sgt Woodroof one of the Officers in April received the response: ‘the people said they would compensate you, just wait. Insisting on the immediate return of the missing Paintings he said ‘the people didn’t steal them, they took them for safe keeping”. Letters sent by Attorney requesting the return and compensation went unanswered. Letters and visits by Bailiff too went unanswered. The matter was placed before the St Matthias court civil division in 2015 but was referred to the High Court.
A Statement from the Holetown Police was requested of the Commissioner of Police for this course of action. The Commissioners’ Office indicated that since there was an agreement with the Police to compensate and that wasn’t upheld the Prospers can be so charged then. It took 2 years for the Inspector to complete his investigations, claiming that other more pressing matters kept cropping up. The Report was that too much time had passed and memory faded.
Mr Prosper surprisingly admitted to taking the GE Phone and Digital answering machine to his house but when asked to return it he claimed he subsequently dumped it. He was charged and placed before the Magistrate on November 16, 2016 for the two items only. He appeared in court, pleaded guilty, was reprimanded and discharged unknown to me. No costs were awarded. Following up on the matter, the Claimant received a letter from the Commissioner of Police dated June 15 2018 advising of all the above shenanigans.
Statements from Holetown Police station including one from Stn Sgt Edwards of the Tactical Response Team who was part of the investigation in 2009 was finally received. Included were photos taken by the Prospers of the interiors of the dwellings identifying some of the very items charged as missing.from the premises and close-up photographs of photos of the minor (child occupant) on the walls. This suggested a keen n uncanny interest in the minor and led to a closer look and audit of the minor’s belongings and thereupon discovered an alarming amount of other personal items missing totalling tens of thousands.
Civil action was filed in the High Courts in June of 2019 and first docked in November 2019 and dismissed for non appearance of the Claimants. The matter was Reinstated forthwith in December 2019.
That brings it to three times the Prospers were before the law courts for this matter, Fly out of jail but still always back to face the Claim.
It ain’t over till its over.
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