Sagicor Bank Jamaica Ltd v Taylor-Wright
| Jurisdiction | UK Non-devolved |
| Judge | Lord Briggs |
| Judgment Date | 14 May 2018 |
| Neutral Citation | [2018] UKPC 12 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0011 of 2017 |
| Date | 14 May 2018 |
[2018] UKPC 12
Lord Kerr
Lord Hughes
Lord Hodge
Lady Black
Lord Briggs
Privy Council Appeal No 0011 of 2017
FROM THE COURT OF APPEAL
Civil practice and procedure - Summary judgment — Grant of summary judgment where defence advanced facts that would still entitle claimant to relief sought.
Appellant
Sandra Minott-Phillips QC Litrow Hickson (Instructed by Myers Fletcher & Gordon)
Respondent
David Alexander QC Anwar Wright Owen Roach (Instructed by Taylor Wright & Co)
This appeal, from the Court of Appeal of Jamaica, raises an important question about summary judgment. If a claimant comes to court seeking specific relief, by way of summary judgment, and the defendant, while denying the claimant's case on the facts, advances facts of her own which, if proved, would still entitle the claimant to the relief sought, should the court direct a trial so as to resolve those competing accounts of the facts, or grant summary judgment on the basis that a trial is not necessary to determine whether the claimant is entitled to the relief sought?
The claimant and appellant in this case is Sagicor Bank Jamaica Ltd (“the Bank”). On 7 March 2011 the Bank issued a Claim Form in the Supreme Court of Jamaica against the defendant (and respondent) Marvalyn Taylor-Wright claiming amounts due, together with interest, under what was called a Demand Loan and two credit card accounts. The debts due under the credit card accounts have since been settled. This appeal relates solely to the Demand Loan.
Paragraph 2 of the Claim Form pleaded the following in relation to the Demand Loan:
“The claimant, as Banker for the defendant and at the defendant's request, extended credit facilities to the said defendant as its customer in the form of a Demand Loan granted numbered MG0821335217 …”
Particulars in tabular form alleged that the principal balance outstanding was J$20,336,878.96, that interest was outstanding as at 31 December 2009 in the sum of J$6,214,329.09 and thereafter until 7 March 2011 in the additional sum of J$4,747,813.88. Claims were made for court fees and fixed attorney's costs on issue for J$2,000.00 and J$10,000.00 respectively, so that the aggregate amount claimed under the demand loan was J$31,311,021.93.
Particulars of Claim of the same date pleaded, as the basis for the claim, a Promissory Note dated 27 July 2007 in the sum of J$21,761,000.00 together with interest as therein specified (“the Note”). Paras 5 to 7 pleaded that the defendant had made initially regular and then sporadic payments of principal and interest until 31 December 2009, supported by tabular particulars. The total amount alleged to be due as at 7 March 2011 was the same as pleaded in the Claim Form (less the amounts for fees and costs), and interest was alleged to accrue thereafter at a daily rate of J$11,015.81. As required by Part 8.9(3) of the Supreme Court of Jamaica Civil Procedure Rules 2002 (“the CPR”), a copy of the Note was annexed to the Particulars of Claim.
By her Defence, supported by a statement of truth and dated 29 April 2011 Ms Taylor-Wright pleaded as follows in relation to the Demand Loan. By paras 2 and 3 she denied the whole of the Particulars of Claim so far as they related to the Demand Loan and alleged (with particulars) that the Note was a forgery. The Defence continued, at para 5, as follows:
“The defendant will say that in July 2007 she borrowed the sum of J$21,760,000.00 from the claimant and made payments thereon. If, which is not admitted, the sum claimed is owed by her, the defendant says that she has provided to the claimant collateral to secure the said loan in the form of prime real estate valued at approximately six times the sum claimed.”
In para 6 she identified two mortgages provided by her as collateral. Paras 7 and 8 of the Defence assert that, by reason of the forgery and the claimant's dishonest and deceitful presentation and reliance upon the Note, done with the intent to defraud the defendant, she was under no further liability to the Bank thereunder.
By its Reply, dated 2 June 2011, the Bank joined issue with the allegation of forgery. Para 4 pleaded as follows:
“Save that the Bank neither admits nor denies the value of the real estate in relation to the sum owed by the defendant, nor that it is prime real estate because it has no current valuation, the Bank admits para 5 of the Defence.”
By para. 5 the Reply admitted the two mortgages pleaded in para 6 of the Defence.
The Reply annexed to it a copy of each of the two mortgages which, in standard form, recited Ms Taylor-Wright's request for financial and banking facilities from the Bank, and contained an express covenant to repay all sums owing.
By an Amended Defence dated 3 April 2012, again supported by a Statement of Truth, Ms Taylor-Wright augmented para 6 of her defence by the assertion that “the transaction between the parties created in law a mortgage debt only”. She also augmented para 15 by seeking to rely upon “the genuine promissory note signed by her in the presence of Mr Wilton South … and the claimant's letter of commitment dated July 17 2007”.
On 10 April 2012 the defendant responded to the claimant's Notice to Inspect and to Produce under rule 28.17, producing for inspection (as attachments) two copies of a further promissory note (“Note 2”), the authenticity of which, by a separate notice of the same date, she required the Bank to admit. Note 2 contains precisely the same terms as to the amount of the demand loan and as to interest as does the Note. It differs from the Note only because it is undated, because it purports to be witnessed by a different official of the Bank and because, on Ms Taylor-Wright's case, it bears authentic rather than forged signatures of hers.
She also attached a copy of a commitment letter from the Bank to Ms Taylor-Wright dated 17 July 2007, signed both by the Bank and by Ms Taylor-Wright, which contains substantially the same terms as to the Demand Loan as appear in the Note and Note 2, but which also includes express provision for Ms Taylor-Wright to be responsible for any costs, fees, expenses or other charges arising in connection with the agreement. It is apparent that Note 2 and the commitment letter are the documents referred to in Ms Taylor-Wright's amendment to para 15 of her defence, described above.
The Bank applied for summary judgment on 8 May 2012. The amount claimed in respect of the Demand Loan was J$31,650,395.26. The application notice expressly invited the court to deal at the hearing with the following issues:
“1. The effect of the defendant's admission in para 15 of her Amended Defence of execution of a genuine promissory note in the claimant's favour for J$21,760,000 plus interest on her allegation of fraud and forgery in para 3(i) and (ii) of her Amended Defence;
2. The effect of the defendant's admission in para 5 of her Amended Defence that she borrowed the sum of J$21,760,000 plus interest from the claimant and does not deny owing the claimant money in relation to that debt.
3. Whether the mortgage granted by the defendant to the claimant as part of the security for the debt owed is just one means for attempted recovery of the debt and does not, as the defendant contends in para 6 of her Amended Defence, preclude the claimant from recovering the debt by any lawful means other than the realisation of its mortgage security; …”
The affidavit in support exhibited the commitment letter, copies of Note 2 and a statement of account under the Demand Loan as at 20 January 2012.
On 25 January 2013 Ms Taylor-Wright applied to strike out the Bank's claim, or alternatively for defendant's summary judgment, on the basis that the claim was without real prospect of success and amounted to an abuse of process. The application notice invited the court to deal with specific issues including the following:
“3. Whether the introduction in the proceedings by the defendant of an incomplete but genuine promissory note ( Note 2) signed by her six days prior to the disbursement of the loan amount to an admission of the claim, instead of evidence in support of her defence of forgery and fraud.
4. Whether on the claim presented by the claimant this court can properly be asked to determine whether the defendant bears any liability to pay the claimant the sum claimed either:
(a) under the mortgages as a debt previously due thereunder; or
(b) by any other lawful means …”
By her affidavit in support, Ms Taylor-Wright asserted, this time on oath, that she borrowed J$21,760.000.00 plus interest from the claimant. She continued, at para 6:
“A number of defences would have been legally available to me and I would have so availed myself had the claimant brought a mortgage claim against me or sued me on a genuine and contemporaneous promissory note. However as there is no reason for me to traverse the claim otherwise than as pleaded by the claimant, I have declined to plead any other defence to the claim as filed as would have been open to me were I sued by the claimant, under a cause of action other than the fraudulent promissory note.”
Later, in a section mainly directed towards demonstrating that the Note was a forgery, she averred that she has signed both Note 2 and the mortgages on 20 July 2007. Shortly thereafter Ms Taylor-Wright served an expert's report supportive of her case that the signatures on the Note were not hers.
Finally, the bank updated its evidence by a supplemental affidavit sworn on 18 February 2013, which exhibited an up to date statement of account for the Demand Loan showing that, as at that date, the total amount outstanding was J$39,988,511.88, an amount which included interest accrued since 7 March 2011, together with further fees.
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