Between: Sandra Kaye Clyatt Meekins Plaintiff v (1) Leslie Harvey JNR/Harvey Construction (2) Lori-Ann Foley (3) Leslie Harvey SNR Defendants
| Jurisdiction | Cayman Islands |
| Judge | Justice Marlene I. Carter |
| Judgment Date | 20 March 2024 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | G0057 OF 2023 |
| Year | 2024 |
Hon. Justice Marlene I. Carter
G0057 OF 2023
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Civil litigation – Order 14 Rule 12 – application by defendant for Summary Judgment on Defence – whether plaintiff has a realistic prospect of success on claim
Ms. Amelia Fosuhene, Brady Attorneys, for the Plaintiff
Mr. John Harris, Nelsons, for the Defendants
The Applicant's summons seeking Summary Judgment pursuant to the Grand Court Rules O. 14 r. 12, was filed on the 8 th of September 2023. The summons sought the following:
“… an Order that there be Summary Judgment for the Applicant on her defence pursuant to Order 14 rule 12 Grand Court Rules, that the Plaintiff's claim as against the Applicant be dismissed, and that the Plaintiff do pay the Applicant's costs of the proceedings to be taxed if not agreed.”
The Plaintiff's claim against the Defendants is for damages for trespass and nuisance.
The statement of claim records that the Plaintiff is the owner of property which adjoins that of the Applicant, the Second Defendant, and her husband 1. The Plaintiff's property is bound in part by a rock wall, commonly referred to as a slave wall. In 2022 the Applicant and her husband erected a chain link fence to surround their property. At paragraph 4 of the statement of claim, the Plaintiff states that after the fence had been erected, there was an application to the Department of Planning for permission:
“.. to erect the 7′4″ fence with barbed wire along the said property slave wall. It is noted the application for Planning permission was not sought in advance of the erection of the fence and further the application stated that the second defendants wish to have the fence in place to keep their dogs safe during construction and renovations. There was also a claim that there was trespassing from other neighbours who had vandalised and destroyed their walls.”
The Plaintiff objected to the application. The Applicant, through her Attorneys, wrote to the Department of Planning stating, inter alia:
“Last July 9 we received a letter from the owner of blocks 15E Parcel 45 requesting to leave the rockwall and vegetation along the property untouched. These have sentimental value and work as privacy screens and serve both of the properties. Our client Ms. Lori-Ann Foley agreed to comply with the request of the adjacent parcel owner and will not remove the existing rock wall and vegetation.”
At paragraph 6 of the statement of claim, the Plaintiff states that she would not have consented to the erection of the chain link fence against the boundary to her property if the Applicant had stated an
intention to remove the wall and vegetation or to damage the wall in any way. The Plaintiff contends that:“Importantly the second defendants were under no illusion that the lack of objection to the erection of the chain link fence was predicated on the agreement that there would be no damage to the wall and vegetation.”
The Plaintiff claims that on 17 August 2022 the Second Defendant:
“… permitted the first and third defendants to demolish the slave wall and cut down and remove[d] a significant amount of vegetation on the plaintiff's property.” and “… the first and third defendants damaged another fence on the Plaintiffs Property.”
The first-named First Defendant is an employee of Harvey's Construction Limited. The Third Defendant is the co-owner and director of HCL and the father of the First Defendant and the Applicant.
The Plaintiff further claims that:
“In breach of the promise made to CPA the second defendants permitted the wall to be demolished and stolen. The second defendants [were] aided and abetted in their destruction of the Plaintiff's property by the first and third defendants.”
At paragraph 12 of the statement of claim, the Plaintiff particularized the nature of the claim against the Applicant:
“(a) As against the second defendants, who caused the first and third defendants to trespass upon the Plaintiffs property.
…
(c) As against the second defendants who were aided and abetted by the first and third defendants who caused physical damage to the Plaintiffs property by demolishing the slave wall and the vegetation on her property, such damage is a private nuisance.
…
(e) As against the first, second and third defendants who removed or permitted the removal of the stones which had made up the slave wall. Such acts constitutes an act, theft as well as act of malice and has also served to prolong the interference with the Plaintiff's rights over her property.”
The Applicant filed two affidavits in support of the instant application. In her first affidavit dated, 8 September 2023, the Applicant states:
“(10) The first time I became aware of any of the issues in the Plaintiff's claim was on 20 August 2022. At that time I was in Jamaica, representing the Cayman Islands in the Caribbean Area Squash Association Championships. On the evening of 20 August I was contacted on WhatsApp by the Cayman Marl Road news website (“CMR”) in connection with a story they were writing about the alleged destruction of the wall. As I told CMR at the time, this was the first I had heard of it.
(11) At no time was I ever informed of, or asked my permission for, any action in respect of the wall. I was entirely unaware of any intention to demolish the wall, I gave no permission for the wall to be demolished, and I had no knowledge of it after the fact until informed by CMR.
…
(13) At paragraph 4 to 6 of the Statement of Claim, the Plaintiff refers to a planning application for the erection of a chain-link fence. This application related solely to the boundary between the Plaintiff's property and Parcel 321. The stone wall on that boundary has not been damaged in any way.
(14) In light of the above, I believe that the Plaintiff's claim against me has no prospects of success, or that the Plaintiff has no prospect of recovering more than nominal damages.”
The Applicant's second affidavit, dated 19 October 2023, clarified as follows:
“(3) In paragraph 13 of my First Affidavit, I stated that the planning application for the erection of a fence related solely to Parcel 321, and not to Parcel 323. Having refreshed my memory by reference to the contemporaneous documents, I wish to correct that statement.
(4) The application related to:
a. After the fact permission in respect of a fence which had already been erected on the border of Parcel 321; and
b. Prospective permission for a planned fence on the border of Parcel 323.
(5) In the event, permission for the fence around Parcel 323 was refused (because of conditions relating to fencing along Walkers Road) and so I did not proceed with the erection of the fence around Parcel 323.”
The Applicant denied that she had any involvement in, was aware of, or gave anyone permission for any works which resulted in the demolition of the wall or any resulting damage.
Relying on the authority of Easyair Ltd v Opal Telecom Ltd 2, Counsel for the Applicant submitted that there is no realistic prospect of the Plaintiff's claim against the Applicant succeeding at trial, or of her being awarded more than nominal damages. He argued that any suggestion that the Applicant had procured the demolition of the slave wall is contradicted by the contemporaneous evidence of her WhatsApp messages that she was unaware of any issues surrounding the alleged destruction of the wall until being contacted by a local news website, after the fact. Counsel argued further that any claim based on the Applicant having given the other defendants permission to demolish the slave wall was hopeless as there is no evidence to support such a claim.
Counsel noted that the Applicant was not the sole owner of Parcel 323. As such, given that the First and Third Defendants are joint owners of the property and, therefore, did not require anybody's permission to enter or cross it, there is no basis for an inference that, as owner, the Applicant must have given them permission to demolish the wall.
Further, Counsel submitted that there was no legal basis for the pleading that the Applicant, having herself agreed not to damage the slave wall, that she was, in the circumstances of this case and of the ownership of the property, obliged, in law, to prevent others from doing so.
For the Plaintiff, it is contended that there is a good and sufficient case to have her claim against the Applicant properly considered by a court of law. The Plaintiff, in her affidavit in reply to the first affidavit of the Applicant, stated that the Second Defendant was a joint owner of the property adjoining her land, that the works being done by the First and Third Defendants were being done “at her behest”. The Plaintiff pointed to the Applicant's knowledge of the wall and its historical significance. She invited the Court to find that the Applicant, having given assurances to the Planning Department that the wall was not to be disturbed, that:
“Not only did the second defendant give assurance to the planning department but because of those assurances the Planning permission was granted. It was therefore incumbent upon her not only to impart the information to the other joint owners of the property that the “slave wall” and vegetation on the property were to remain untouched. It was also incumbent upon her to ensure that any other person, or contractor doing work on her land and coming onto the land that she jointly owned adhered to the assurances made expressly made by her or on her behalf or at her behest to...
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