Between: Bilika Harry Simamba Plaintiff v The Attorney General 1 st Defendant The Governor of the Cayman Islands 2 nd Defendant; Between: Bilika Harry Simamba Plaintiff v The Honourable Justice Ian Kawaley 1 st Defendant Bridget Myers 2 nd Defendant
| Jurisdiction | Cayman Islands |
| Judge | Justice St. John-Stevens |
| Judgment Date | 02 August 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G0093 OF 2020 |
The Hon. Justice St. John-Stevens (Actg.)
CAUSE NO. G0093 OF 2020
CAUSE NO. G0161 OF 2020
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Civil Law — Application for Strike out — Defendants seek Order that Statements of Claim be struck out pursuant to GCR O.18, r. 19(1) or the inherent jurisdiction of the Grand Court — The basis being that they either disclose no reasonable cause of action, and/or are scandalous, frivolous or vexatious, and/or an abuse of process of the Court
Mr. Tom Lowe Q.C. instructed by Ms. Reshma Sharma, Solicitor General and Ms. Heather Walker for the Applicants
. The materials in this case have been helpfully combined into two electronic bundles. Firstly; “ G93 and G161 of 2020 and G 17 of 2021 — Electronic Hearing Bundle.pdf”—(Running to 880 pages), and secondly “Cause Nos.93 of 2020 and 161 of 2020 — Electronic Authorities Bundle.pdf” References to these bundles will be [EHB; tab/page/para] & [EAB; tab/page/para] respectively.
. Each Defendant, by way of summonses issued on 1 st and 2 nd February 2021 (amended 15 th February 2021) 3 seeks an Order that the Statements of Claim in both G 0093 of 2020 and G 0161 of 2020 be struck out. The basis upon which the said order is pursued is either pursuant to the Grand Court Rules (GCR) O.18, r.19(1) and/or the inherent jurisdiction of the Grand Court. The basis being that they either disclose no reasonable cause of action, and/or are scandalous, frivolous or vexatious, and/or an abuse of process of the Court.
. During the course of a directions/case management hearing on the 22 nd February 2021 the court canvassed with the parties the possibility and desirability of consolidating the two Causes. Each were in agreement to that course. It was further determined upon the agreement of the parties that the application to Strike Out would be heard first, then as part of a composite hearing, the application for a Restraint Order (G0017 of 2021) would be heard 4. Consequently judgment on the applications to Strike Out and the Restraint Order would be given together.
. The Court, having considered the oral submissions at the directions hearing, and the written material, made further case management directions consequent upon the fixing of the hearing to be on the 4 th May 2021. That date was the first identified date convenient to the parties and the court for the hearing of both the application to strike out and the restraint application. The Court set a timetable for the exchange of written submissions.
. The Court made further case management directions of its own motion; mindful of dealing with The Overriding Objective, as set out in the preamble to the GCR, to deal with cases justly and at proportionate cost, which includes, so far as is practicable, allotting to each case an appropriate share of the court's resources.
. In the result, this Court directed that, having received helpful written submissions and attendant material, the Court would permit sixty minutes to each party to make oral submissions upon the consolidated application to strike out, and a like period in relation to the application for a Restraint Order. The Court also stated that it would not be assisted by, nor indeed permit, simple repetition of written submissions 5. Mr. Simamba, in an email, expressed some disquiet as to not being permitted to repeat his written submissions orally. The Court observed the need to engage the word “simple”. Of course the parties were permitted to, and did, repeat written submissions, augmenting them with oral submissions.
. Prior to the hearing, the Court had indicated that it would permit Mr. Simamba (The Plaintiff/Respondent) to appear remotely via “Zoom.” 6. Upon Mr. Simamba's invitation, the Court directed that the hearing would be open to the public. In the interests of ensuring both access to justice and open justice, the Court indicated it would permit attendance by the parties via Zoom and would permit interested observers to log in on the same Zoom link.
. During the hearing Mr. Simamba invited the Court to allow him to have a little more than an hour to present his oral submissions. He also indicated he would take less than an hour in relation to his oral submissions in response to the application for a Restraint Order. The Court of course acceded to that request. The Court was satisfied that Mr. Simamba, by a combination of his written skeleton arguments and the oral submissions, had a fair opportunity to present his case; there was no indication to the contrary from him.
. It should be noted that in such a hearing a judge may ask questions by way of clarification or invite elaboration. It is not incumbent on a judge to indicate to either advocate if a submission does or does not find favour. This is particularly so when the court has afforded the parties time to reduce their positions to written submissions. It is an adversarial process.
. The purpose of this Judgment is to set out the Court's reasons for its decision, and what conclusions have been reached on the principal controversial issues. That does not include every issue, but only those that are determinative in some measure of the applications.
. Not all issues will be referred to in this judgment, nor will mention be made of each authority, even though all issues and authorities have been subject to careful consideration by this court. Any omission of an issue or authority is not indicative that it has not been considered.
. The case management of the hearing ensured that each party had time to reduce their submissions to writing — inviting the parties to concentrate on the principal controversial determinative issues.
. The Court has read and considered all the written material, augmented by oral submissions from the parties.
. This Judgment is not a treatise, nor will it be discursive on matters which may be pertinent, or are on the very margins of determinative relevance. It focuses on those matters that materially affect the outcome — that is, those being, or possibly being, dispositive of this application.
. The Court reminds itself of the authoritative guidance, such as in South Bucks DC v Porter (No. 2) 7
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues.”
. This court is mindful of the Plaintiff's criticism of the questioned judgment of Kawaley J within the Statement of Claim in this matter. Paragraph 62 8 of the Claim reads:
“I was taken aback by the shear brevity of a ruling on such a complex case is. It was a 29-page ruling in a case which, in my view, on the basis of certain comparisons dealt with below, should have been well over 100 pages, perhaps close to 200 pages. The decision was disproportionate to the issues that had been placed before the court.”
. This court rejects the bald assertions that the sufficiency of a ruling can be measured by the number of pages. Indeed when considering principal important controversial issues, the ruling turned upon a single issue — the requirement for expert evidence.
. The Plaintiff raised in his oral submission to the Court that he sought to enter Default Judgment in this cause. (By email dated 27 th January 2021). The application and documents detailing the lodging of the same are at [EHB: Tabs 46–52]. The determination of this application was made by Ramsay-Hale J on the 1 st February 2021. I have read an attachment to an email (dated 5 th June 2021) from the Plaintiff, that he invited this Court to consider. This provides a chronology of the matter and reports that Ramsay-Hale J determined that, as an Acknowledgment of Service with
Notice of Intent to Defend had been filed on the 18 th December 2020, the application was refused. In 2014 the Plaintiff in this case filed a claim in the Grand Court ( Simamba v the Health Services Authority of the Cayman Islands Cause No. G 0032 of 2014).
. This was instituted by writ dated 6 th March 2014 — the substance being a personal injury claim. The Plaintiff in this cause alleged that he suffered loss and damage as a result of medical negligence by the Cayman Islands Health Services Authority (HSA).
. Mangatal J and Kawaley J each presided over hearings in the life of this cause. On the 17 th June 2019 Kawaley J delivered his ruling in this cause, indicating that the Plaintiff's claim was bound to fail in the absence of medical evidence. However it must be noted that the cause was not struck out, but, instead, the judge made an immediate case management hearing order requiring the Applicant to file the specified expert evidence. The Applicant/Plaintiff, having requested a further opportunity to serve expert evidence, the Learned Judge, in the exercise of his discretion, permitted the same; directing that medical and dental evidence be served by 31 st October 2019. The Judge reserved costs of the application. The period of time granted for service of this expert evidence was, upon the application of the Plaintiff, extended until the 31 st March 2020.
. This Court is particularly cognisant of the fact that there was no final decision on the Immunity Issue; the determination was “ adjourned with...
To continue reading
Request your trial