Gweneth E. Henning as Personal Representative of the Estate of John Ashton Henning Plaintiff v Margaret Ann Henning Defendant

• Jurisdiction: Cayman Islands
• Judge: Hon. Justice Mangatal
• Judgment Date: 27 February 2015
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO. G250 OF 2014
• Date: 27 February 2015

In the matter of section 132 of the Registered Land Law to register a Restriction against Registration Section Cayman Brac West, Block 97B Parcel 94.

Between:

Gweneth E. Henning as Personal Representative of the Estate of John Ashton Henning

Plaintiff

and

Margaret Ann Henning

Defendant

[2015] CIGC J0227-1

Before:

Hon. Justice Mangatal

CAUSE NO. G250 OF 2014

IN THE GRAND COURT OF THE CAYMAN ISLANDS

In Chambers

STRIKING OUT — G.C.R. O. 18, R.19 — SUMMARY JUDGMENT APPLICATION BY DEFENDANT — G.C.R. O. 14, R.12 — ORIGINATING SUMMONS — WHETHER SUPPORTING AFFIDAVIT CAN BE LOOKED AT IN DECIDING WHETHER NO REASONABLE CAUSE OF ACTION — WITHOUT PREJUDICE COMMUNICATIONS — WHETHER ADMISSIBLE TO CONSTRUE OR RECTIFY AGREEMENT/CONSENT ORDER — SEVERANCE OF JOINT PROPRIETORSHIP BY CONSENT ORDER, AND CREATION OF PROPRIETORSHIP IN COMMON. DECLARATION — O. 15, R.16 — WHETHER COURT HAS POWER TO GRANT ALTHOUGH NOT SPECIFICALLY CLAIMED — COURT'S OVERRIDING OBJECTIVE — DEALING WITH CASES JUSTLY.

1 There are two applications that were fixed for hearing before me on the 9 January 2015. The first in time was the Originating Summons filed on behalf of the Plaintiff on the 17^th November 2014. That Originating Summons seeks the following relief:

• ‘1. The Order dated May 24, 2010 in the Cause No D 177 of 2009 be varied to include that the net proceeds of sale from the property registered at Cayman Brae West Block 97B Parcel 94 is to be divided equally between the Defendant and Plaintiff herein.

• 2. That a restriction be placed against the property until sale of the property is achieved.

• 3. That the Clerk of Court be empowered to sign the Real Estate Listing Agreement for the subject property in the place of the Defendant.

• 4. That the cost [sic] of this Application be met from the proceeds of sale of the property.

• 5. Any other relief this Honourable Court may deem fit.’

2 The Originating Summons is supported by the Affidavit of Gweneth E. Henning, also filed on the 17^th November 2014.

3 On the 30^th December 2014 the Defendant filed a summons seeking the following relief:

• ‘1. The Plaintiff's claim be dismissed as having no prospect of success.

• 2. Judgment be entered for the Defendant.

• 3. The plaintiff do pay the Defendant's costs on an indemnity basis’.

4 An affidavit was also filed by the Defendant on December 30 2014 and which she indicates was filed for a dual purpose. In paragraph one of her affidavit, the Defendant states that she has sworn the affidavit in response to the affidavit of the Plaintiff in support of the originating summons. At paragraph 2, the Defendant states that she has sworn this affidavit ‘in support of my own summons to strike out the said Application by Gweneth Henning.’

5 I indicated to Counsel that it seemed that the nature of the Defendant's summons was such as to require that summons to be dealt with first. Both Counsel agreed to that course. It was also agreed that in the event that I was not minded to accede to the Defendant's application, I should go on to deal with the Plaintiffs Originating Summons, as both parties have filed all of the affidavit evidence in support or opposing the application that they would wish to have considered. The applications were considered on the 9^th and 13^th of January 2015. I wish to thank the attorneys-at-law on both sides for their interesting and well-written written submissions, and for providing a number of useful authorities.

The Defendant's Summons and Application

6 The main relief expressly sought in the summons filed on behalf of the Defendant is that the Plaintiff's claim be dismissed as having no prospect of success and that judgment be entered for the defendant. This would seem on its face to be an application for summary judgment pursuant to Order 14 Rule 12 of theGrand Court Rules (‘the GCR’). However, in written submissions dated the 9^th January 2015, Mr. Ebanks, who appeared for the Defendant, sought to in addition refer to and pray in aid Order 18 Rule 19 of the Grand Court Rules, which reads as follows:

‘Striking out pleadings and Endorsements (O.18, R.19)

19. (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

• (a) it discloses no reasonable cause of action or defence, as the case may be; or

• (b) it is scandalous, frivolous or vexatious; or

• (c) it may prejudice, embarrass or delay the fair trial of the action; or

• (d) it is otherwise an abuse of the process of the court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under subparagraph 19 (a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.’

‘Striking out pleadings and Endorsements (O.18, R.19)

7 Mr. Ebanks clarified that his application was under both Order 14 Rule 12 and Order 18 Rule 19. He submitted that the claim in the Originating Summons does not plead thefacts as required by O 18 Rule 7. Additionally, that the application is seeking a variation in respect of Cause No. D 177 of 2009, but yet is filed under a new cause in this Originating Summons. Further, that the application for variation would have to be brought by a party to the order and under the Cause No. D 177 of 2009.

8 Defence Counsel further argued that the pleading defects in the Originating Summons cannot be cured by the Plaintiffs affidavit in support since the affidavit provides evidence and not facts.

9 Further, that the Plaintiff's affidavit cannot be relied upon because it wrongly exhibits without prejudice correspondence between the parties. It was submitted that this attempted use of without prejudice correspondence is itself an abuse of process. Counsel argued that it is trite law that without prejudice correspondence relating to negotiations for settlement in disputes between parties is privileged and generally protected from disclosure. Reference was made to the leading English case ofUnilever v Proctor & Gamble [1999] EWCA Civ 3027, and to the decision of Henderson J in the local decision of Tom Jones International Limited v Attorney General [2010] (2) CILR Note 3, where Unilever was applied. It was submitted that for the privilege to be waived, both parties to the communications would have to do so, and that the Defendant had not so waived the privilege.

10 Mr. Ebanks also submitted that the originating summons was otherwise to be considered abusive for the following reasons:

• ‘(i) Over three years have passed since the Order was made and therefore the application is well past the time for an appealing of the order;

• (ii) The application for variation is sought by a non-party to the order, the party whose interest the plaintiff seeks to exercise interest over now being deceased. Further, that there was ample opportunity for Mr. Henning to have sought this variation before his death and, the submission continues, before the property changed hands by operation of law if it was not his intention that the property be held jointly until sold.

• (iii) Critical to the application to strike out the Plaintiffs claim is that the property in respect of which the Plaintiff seeks to exercise interest, is now registered solely to the Defendant who has exercised her right in law pursuant to section 100 of theRegistration of Land Law to be registered as sole proprietor following the death of the other joint proprietor.

• (iv) The plaintiff's claim appears to hinge on the estate (which is not a party to the Order) getting a bad bargain as a result of the consent order. It was submitted by Mr. Ebanks that that was not a sound or proper basis upon which the Court could grant a Variation. Reference was made to the Court of Appeal of Cayman's decision inRange v Range [1988–89 CILR 437].

11 It was further submitted that in addition to the general privilege attaching because correspondence falls under the heading of without prejudice communications, there is a special and distinct privilege which attaches in relation to communications in matrimonial matters and it was argued that that special situation existed here. Reliance was placed upon paragraph 23 (8) ofUnilever.

12 Mr. Ebanks made an umbrella submission that the categories of conduct rendering a claim an abuse of process are not closed. It was posited that the courts can strike out cases where the litigation would amount to an abuse of process ‘in the exercise of its inherent jurisdiction to protect the general integrity of the process of the court and of its ability to deliver justice to all litigants’— per Smellie CJ inX v Y Ltd, [1999] CILR 73.

Argument that Plaintiff's case is unsustainable

13 Under this head of the Defendant's application, reference was made toOmni Securities Limited (No. 3) [1998 CILR 275] a decision of Smellie CJ, for the proposition that under Order 14 Rule 12, a Defendant is required to show that a Plaintiffs claim is unsustainable in order to obtain its dismissal, and that an application would fail where the Plaintiff could show ‘more than a faint possibility of succeeding’.

14 At paragraph 17 of the written submission handed up by Mr. Ebanks on the 13 January 2015, Mr. Ebanks made an additional submission that ‘the guidance in relation to the corresponding English jurisdiction to dismiss claims that have no reasonable prospect of success under CPR Part 24 identifies that a Plaintiff must have a ‘real’ prospect of success, that is to say one that is more than false, fanciful or imaginary, and refers to the dictum of Lord Hobhouse inThree Rivers DC v Bank of England (No 3) that “the criterion which the judge has to apply under CPR Part 24 is not one of probability; it...