Conrich v Van Der Elst et Al

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Rawlins, J.
• Judgment Date: 13 February 2003
• Neutral Citation: AI 2003 HC 2
• Docket Number: AXA HCV 2001/0002
• Date: 13 February 2003

High Court

Rawlins, J.

AXA HCV 2001/0002

Conrich

and

Van Der Elst et al

Appearances:

On the 3 ^rd day of May 2002

Mr. Patrick Patterson for the claimant

Ms. Lisa Bass for the First defendant

Mrs. Palmavon Webster, with her Ms. Deborah John-Woodruffe for the Second and Third defendants

On the 16 ^th day of July 2001

Mrs. Birnie Stephenson-Brooks for the claimant

Ms. Lisa Bass for the First defendant

Ms. Jenny Lindsay for the Second and Third defendants

Conflict of laws - Forum non conveniens — Whether France a more appropriate forum than Anguilla.

Practice and Procedure - Statement of claim — Whether it should be struck out as disclosing no reasonable cause of action or was vague, incoherent or abusive — Eastern Caribbean Supreme Court Civil Procedure Rules 2000, Part 26.3

Rawlins, J.

1 This decision comes on the hearing of three (3) Applications. The first in time of filing is an Application by the claimant that was filed on the 12 ^th day of July 2001. Thereby, the Claimant applied to strike out various Paragraphs of the Defence of the First defendant. The second and third are Applications that were filed by the First defendant, on the one hand, and the Second and Third defendants, on the other, on the 16 ^th day of October 2001. They prayed in those Applications for Orders pursuant to Part 26.3 of the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000 (hereinafter referred to as “the Rules”) to strike out the Statement of Claim. In the alternative, they prayed for a stay of proceedings on the ground of forum non conveniens. Solicitors for the First defendant have subsequently withdrawn their prayer to strike out the Statement of Claim under Part 26.3 of the Rules. The decision on these Applications will be considered against the background to the case.

The Background

2 The proceedings in this case were instituted on the 18 ^th day of January 2001. On that date, Solicitors for the then Intended claimant filed an ex parte Application for leave to issue and serve a Notice of Writ out of the jurisdiction. This was made pursuant to Order 11 Rule 1 of the Rules of the Supreme Court 1970. They stated, as one (1) ground for the Application, that the Intended defendants were not resident or ordinarily resident within the jurisdiction. They also stated that the intended action was founded on the tort of deceit committed within the jurisdiction and it was impracticable to serve the intended Notice of the Writ on them. The Application was supported by an affidavit deposed by the claimant on even date. The court granted leave on the 22 ^nd day of January 2001 to the then Intended claimant to issue the Writ and to serve it out of the jurisdiction by registered post. The Writ, specially indorsed with Statement of Claim, was issued on the 24 ^th day of January 2001.

3 Subsequently, the claimant gave further and better particulars of the Claim at the instance of the defendants. He also amended the Statement of Claim on the Order of the Court issued by Hariprashad-Charles J. on the 12 ^th day of June 2001. The claimant filed an Amended Statement of Claim on the 19 ^th day of June 2001. That Order also granted leave to the defendants to file and serve Amended Defences, if necessary. The matter was adjourned to the 12 ^th day of July 2001 for Report. The First defendant filed an Amended Defence on the 11 ^th day of July 2001.

4 The tenor of the claim is that the First defendant was the personal friend of the claimant. The Second and Third defendants were respectively the boyfriend and brother of the First defendant. Between January 1995 and December 1999, the defendants, acting in concert and with intent to cheat and defraud him (the claimant), made and or caused various representations to be made to him. In essence, he alleged that they represented or caused representations to be made to him that the First defendant suffered from life threatening medical conditions, which required certain medical procedures that could have led to her cure. The representations allegedly included statements that she had a tumour located near a vital nerve, which required several operations. The statements also allegedly included representations that the First defendant was partially paralyzed but was on the mend, and that she had cancer of the kidneys but it was necessary for her to wait for a kidney.

5 The claimant also alleged in the Statement of Claim that it was represented to him that the defendants did not have the necessary funds to pay for the required medical procedures. He further alleged that he was told that as a result of the death of a sister of the First defendant, she had inherited an apartment in France that was valuable property. He said that the defendants represented or caused representations to be made to him that the property could be sold for a sum of between 500,000 and 800,000 French Francs. They further represented or caused representations to be made that 90,000 French Francs had to be paid for the “Right of Succession” in order to enable the First defendant to inherit the property and obtain the title to it. The claimant said that he was told that if he gave the 90,0000 French Francs to the First defendant he could recover three times that amount. He alleged that he gave that sum to the First defendant as a result of those representations.

6 The claimant maintained that the statements that were made to him were false and were made fraudulently. He alleged that the First defendant was not suffering from any life threatening medical condition and did not require any medical procedure. She was not partially paralyzed as she had represented. She had not been left any valuable property in France and there was no requirement for money to be paid in order to inherit the property. He claimed that he acted on the faith and with the belief that these representations were true. The result, he stated, was that he was induced to and did pay over substantial sums of money to the defendants. The claimant also alleged that the defendants, whom he said are not without personal funds, have not repaid him the amount that he advanced, and did not intend to repay him either. He said that at the time that they made the representations which caused him to advance the money, they knew that the statements were false and untrue, but made them fraudulently or recklessly not caring whether they were, with intent to defraud him.

7 The claimant further alleged that as a result of the foregoing allegations he suffered loss and damage in the sum of US$304,046.79. He particularized the loss and damage allegedly suffered as follows:

“PARTICULARS

Item	Date	Amount	US$ Equivalent
(i)	10/95-5/96	US$2,000.00	2,000.00
(ii)	12/97-3/98	US$4,277.07	4,277.07
(iii)	1998	FF200,000	33,726.81
(iv)	9/98-12-98	FF8,000	1,452.62
(v)	10/2/99	FF120,000	20,726.82
(vi)	31/3/99	FF80,000	13,110.67
(vii)	10/5/99	FF160,000	26,201.59
(viii)	14/6/99	FF160,000	25,538.30
(ix)	3/99-6/99	FF320,000	53,449.14
(x)	14/7/99	FF160,000	24,830.84
(xi)	1/11/99	FF600,000	98,732.93
		Total	US$304,046.79”

8 Solicitors for the defendants entered Appearance on their behalf on the 23 ^rd day of February 2001. On the 2 ^nd day of May 2001, Solicitors for the defendants applied by way of Summons for further and better particulars. The Application was supported by an affidavit of even date deposed by John Benjamin, Solicitor.

9 Webster, Dyrud and Mitchell, Solicitors, filed a Notice of Change of Solicitors on the 31 ^st day of May 2001. This permitted that Firm to appear as Solicitors for the Second and Third defendants. On that same date, two (2) Defences were filed — one on behalf of the First defendant and the other on behalf of the Second and Third defendants.

10 In her Defence, the First defendant stated that she is now married to the Second defendant. The gist of the Defence is that the First defendant and the claimant became acquainted in 1992. This developed into “a highly unusual, intimate long distance relationship”. During that relationship, the claimant exploited her youth and vulnerability and exercised control over her. He gave her large sums of money as gifts in return. His demands caused her to become fearful of him. The result was that she assumed the names and identities of the Second and Third defendants from time to time without their knowledge or consent. She made excuses to avoid visiting Anguilla. She made no statements or representations to the claimant with any intention to cheat or to defraud him. Any alleged representations to the claimant were made as part of role-play sequences in order to satisfy his sexual fantasy and to avoid meeting him. She did, in some instances, before October 1997 make statements that were not true to the claimant. However she confessed to him. He in turn encouraged her to continue to assume such roles. Therefore, any representations that she made to the claimant after October 1997 were made with his full knowledge and consent in furtherance of the role-playing sequences between them. She did not admit that she promised to repay any money to him. She denied that the Second or Third defendants ever made any acquaintance with the claimant, or received any money from him. She stated that she intercepted the claimant's correspondence to them “at the appropriate times”.

11 The Application of the claimant on the 12 ^th day of June 2001 was to strike out Paragraphs 2, 3, 4, 5, 24 and 25 and that part of Paragraph 14 that states “the plaintiff in order to feed his own sexual fantasy of someone similar to the First defendant sharing his bed”. In the Amended Statement of Claim, these became Paragraphs 3, 4, 5, 6, 15 (the relevant part thereof), 29 and 30. They are now set out verbatim for their full effect and purport.

12 Paragraph 3 states:

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