the republic of trinidad and tobago in the high court...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No: CV2017-01262

IN THE MATTER OF THE TRUSTS CREATED BY A TRUST DEED AND RULES DATED

NOVEMBER 24 1976 AND ITS VARIOUS EVOLUTIONS THAT ESTABLISHED AND

CONTINUED

THE ROYAL BANK EMPLOYEE STOCK/SHARE OWNERSHIP PLAN [THE ROYAL BANK

ESOP]

Between

VESTA DILLON

(Suing on her own behalf and on behalf of the named members of Staff

Retirement Bonus Plan who resigned between 1999 and 2009)

Claimant

And

RBC FINANCIAL (CARIBBEAN) LIMITED

First Defendant

RBC ROYAL BANK (TRINIDAD AND TOBAGO) LIMITED

Second Defendant

Before the Honourable Mr. Justice R. Rahim

Date of Delivery: February 19, 2019

Appearances:

Claimant: Mr. T. Bharath instructed by Mr. A. Le Blanc

Defendants: Mr. A. Fitzpatrick SC and Mr. A. Byrne instructed by Mr. J. Mootoo

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DECISION ON APPLICATION

1. By Claim form filed on April 11, 2017 the claimant commenced these

proceedings on her behalf and on behalf of other certain named former

employees of the defendants who resigned from the employment of the

defendants between 1999 and 2000.

2. The crux of the claimant’s claim is that she and those whom she represents

are beneficiaries entitled under various trusts, to retirement benefits

which were not paid to them under the defendants’ Employee Share

Ownership Plan (“ESOP”) and Staff Retirement Bonus Plan (“ESOP II”).

3. By Notice of Application dated June 23, 2017 the claimant applied

pursuant to Rule 21.4(3) of the CPR for an order that she be appointed a

Representative Claimant for the persons named on the schedule attached

to the Statement of Case. The schedule identified twenty persons, Susan

Mohammed, Barbara Ramcharan, Dianne John, Bruce Rezende, Denyse

Rexende, Keith King, Ramesh Lutchman, Giselle McIvor, Janice Valentine,

Tara Balwant, Taramatee Sieunarine, Joyce Sirjoo, Karel Joefield, Marcia

Dalrymple, Michelle Devenish, Ava Paul Vosin, Mala Sankar, Bibi Jamadar,

Leela Geelalsingh and Jenny Elbourne. All persons named except Dianne

John filed affidavits in support of the claimant’s application. There was an

additional affidavit of Cole Patrick who did not appear on the schedule.

Those persons together with Cole Patrick who swore affidavits in support

of the claimant’s application will hereinafter be referred to together as

“the potential representees” and individually as “the potential

representee”.

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4. In the affidavits sworn in support of the claimant’s application by Mr.

Andre Le Blanc and by the potential representees, the following was

stated;

i. That the potential representees were employees of the defendants

and members of the ESOP/ESOP II during their employment with

the defendants;

ii. That the potential representees all have the same and/or similar

interest in these proceedings as each other.

5. Consequently, the grounds of the application were as follows;

i. The claimant and those that she represent have a common interest

in the ESOP and ESOP II as former employees of the defendants and

as beneficiaries entitled under the various trusts, to retirement

benefits which were not paid and the nature of the common

interest is the same even if individual values vary;

ii. From her employment with the defendants, the claimant is familiar

with those persons she represents also as former employees of the

defendants and all having resigned from employment with the

defendants at varying times between the years 1999 and 2009.

6. In opposition to the claimant’s application, the defendants have filed an

affidavit sworn to by Amos Herai on the April 13, 2018 (“the Herai

affidavit”). The main arguments put forward by the defendants in the Herai

affidavit for opposing the claimant’s application were as follows;

i. The potential representees stand in different factual and legal

positions from the claimant;

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ii. When the claimant resigned she elected to receive a payment for

the value of the units in ESOP II allocated to her whilst she was a

member of the plan;

iii. The potential representees with the exception of Michelle

Devenish made an informed election at resignation to receive and

did receive an ESOP II payment computed on the basis of the

number of ESOP II units allocated to them whilst they were

members of the plan. So if the potential representees were

members of the ESOP II immediately prior to the date of their

resignation, then upon receipt of the payments they ceased to be

members of the plan and gave up any further rights to benefits

thereunder. Herai caused a table to be prepared in relation to the

potential representees other than Michelle Devenish.1 This table

contained the name of each potential representee, the date at

which each person resigned, the number of ESOP II units allocated

to each person whilst a member of the plan, the payments made

to each person following their election at resignation to receive

instead of other monies, and an ESOP II payment computed on the

basis of the number of ESOP II units allocated to them whilst a

member of the plan.

iv. Michelle Devenish upon resignation failed to make the necessary

election and so she did not receive a payment with respect to any

ESOP II units which had been assigned to her whilst she was a

member of the plan.

Subsidiary issues-evidential objections

1 This table was exhibited at “A.H.2” to Herai’s affidavit.

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7. The claimant via her submissions has taken objection to certain portions

of the Herai affidavit and exhibits attached thereto. The claimant

submitted that all the information contained in the table detailed in

paragraph 13 of the Herai affidavit and annexed thereto as “A.H.2” cannot

properly be received in evidence as there was no evidence that 1) the

information was entered into one of the ordinary books of the defendants

in the usual and ordinary course of business, 2) that the books are in the

custody or control of the defendants, or of the successors to the

defendants and 3) that a copy of the information provided has been

examined with the original entry and it is correct or that Herai has

examined the copy with the original entry since he stated that he caused

the table to be prepared. The claimant further submitted that the table

was unsigned and so no one knows the maker of same. As such, the

claimant submitted that that evidence is unadulterated hearsay with no

source and should be completely disregarded.

8. In so submitting, the claimant relied on Sections 27 & 28 of the Evidence

Act Chapter 7:02 which provides as follows;

“27. (1) A copy of an entry in a banker’s book shall not be received in

evidence under this Act unless it is first proved that the book was, at the

time of the making of the entry, one of the ordinary books of the bank, and

that the entry was made in the usual and ordinary course of business, and

that the book is in the custody or control of the bank.

(2) Such proof may be given by the manager or accountant of the bank,

and in the case of the Post Office Savings Bank by the Postmaster General

or any person authorised by him. (3) Such proof may be given orally, or by

affidavit sworn, or statutory declaration made, before any Commissioner

or person authorised to take affidavits or statutory declarations.

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28. A copy of an entry in a banker’s book shall not be received in evidence

under this Act unless it be further proved that the copy has been examined

with the original entry and is correct; such proof shall be given by some

person who has examined the copy with the original entry, and may be

given either orally, or by an affidavit sworn, or statutory declaration made,

before any Commissioner or person authorised to take affidavits or

statutory declarations.”

9. The claimant submitted that annexure “A.H.3” to the Herai affidavit

contains unsigned documents that have absolutely no probative value.

That paragraph 4 of the Herai affidavit should also be struck out since he

failed to state who authorized the making of the affidavit.

10. The claimant further submitted that the second sentence of paragraph 8

of the Herai affidavit should be struck out as Herai did not state which

records of the defendants he examined and who was the custodian of

those records to demonstrate the validity of the information which he

seeks to advance. According to the claimant, Herai also failed to depose

his familiarity with the handwriting of any of the signatories to the

attached document. The claimant also submitted that paragraph 12 of the

Herai affidavit should be struck out in its entirety as Herai is not an

attorney-at-law and cannot depose to any issue on the rights and benefits

under any of the plans referred to therein.

11. Moreover, the claimant submitted that paragraphs 14(a) and (b)(i), (ii) and

(iii) must also be struck out on the basis that Herai has failed to provide the

source of and the grounds for the information stated. That no admissible

documentation was provided to demonstrate that Janice Valentine ceased

to be a member of any plan described in paragraph 12. That there was also

no evidence that any of the litigants have no entitlements to the 2004 and

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2008 transactions. According to the claimant, Herai has merely made

empty conclusions of fact completely devoid of any probative value. The

claimant repeated this submission in respect of paragraph 15 of the Herai

affidavit in its entirety.

The defendants’ arguments in opposition to the claimant’s evidential objections

12. According to the defendants, by his affidavit, Herai gave evidence as an

employee of the defendant companies. The defendants submitted that

Herai is the vehicle through which the defendant companies give evidence.

That he is not giving evidence on his own behalf. As such, the defendants

submitted that he is not, in that setting, confined to giving evidence of

matters of which he has first-hand knowledge. That he can also give

evidence based on the documents of the company, irrespective as to

whether he prepared them or not. Accordingly, the defendants submitted

that his evidence is to be treated differently from that of an ordinary

witness who gives evidence of things seen, heard or done.

13. In so submitting, the defendants relied on the following three cases. Firstly,

the case of United Engineering Services Limited v Hafeez Karamath

Limited (unreported)2 wherein Boodoosingh J at paragraphs 2 to 5 of his

judgment stated as follows;

“2. The claimant has objected to the entire witness statement of Tewari

Tota Maharaj. The essential basis is that the witness statement does not

set out that Mr Maharaj was employed with the defendant at the material

time and he does not set out how he comes to know of the details of his

evidence. Thus, the objection is that he has no personal knowledge of the

2 CV2011-03476

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matters set out in his witness statement. Mr Maharaj is the Chief Engineer

of the defendant.

3. Companies act through directors, officers and employees. It is clear that

Mr Maharaj is being called as the company’s representative in this claim.

4. Mr Maharaj, as the company’s representative, can give evidence of

matters within his personal knowledge or based on statements within the

records of the company. Some of the statements made in his witness

statement can be from his own knowledge from the time he was employed

while other evidence can be from the records. He is not required to have

been an employee at the material time.

5…The court cannot presume he cannot give the evidence because he does

not say if it is from his personal knowledge or if it is obtained from an

examination of the records of the company or both.

6. Further, since a company acts through it directors, officers and

employees the evidence of the company’s representative must necessarily

to an extent be considered in different terms from an ordinary witness who

gives evidence of things seen, heard or done.”

14. Secondly, the case of Seereeram Brothers Limited v The Central Tenders

Board3 wherein Jones J (as he then was), in dealing with certain evidential

objections relating to a witness who was giving evidence on behalf of a

company, stated the following at page 475 letters B to D;

“Let me now examine the paragraphs to which objection is taken. I will

deal firstly with those which Mr. Thorne finds offensive. As to paragraphs

6 of the Seereeram affidavit of 17th September, 1991, Mr. Seereeram was

there stating information relayed to him by a third party i.e. Mr. Manjrekar

Persad, Clerk in the employ of the applicant. Mr. Seereeram is the

3 (1992) 2 TTLR 465

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Managing Director of the applicant company and Mr. Persad a clerk in its

employ. In such a situation it is open to Mr. Seereeram to state

affirmatively without qualification what information was relayed to him by

Mr. Persad whose knowledge can be treated as that of the company. Mr.

Seereeram need not have stated the source of his information and to this

extend only, the paragraph is defective. I hold the paragraph admissible”

15. Thirdly, in the case of Admiralty Action in Rem Against the MV “Diane

Green” (unreported)4 wherein Myers J stated as follows at paragraph 64

of his judgment;

“In my judgment, this reasoning is applicable to all cases where companies

are party to litigation. The company’s knowledge can be given through a

company’s representative. The company’s representative can give

evidence as to the company’s knowledge having ascertained the

knowledge of the specific persons in the organization with direct personal

knowledge. This person’s knowledge can be treated as the company’s

knowledge and the company’s representative who has so ascertained the

required knowledge from the particular individuals, can give evidence of

such knowledge, without his evidence being considered hearsay. His

evidence in such circumstances is direct evidence from the company.”

16. The defendants submitted that in relation to the objection to exhibit

“A.H.2” to the Herai Affidavit, it should be noted that that exhibit simply

summarizes the dates on which each proposed representee left the Bank

and received payment for their respective ESOP II holdings; the number of

units they each held in ESOP II on departure; and the amount paid for those

units. According to the defendants, the exhibit is merely a convenient way

4 HCA No. A- 11 of 1999

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for Herai to present the contents of those records, including that of the

documents exhibited at “A.H.3”. The defendants further submitted that

the fact that Herai directed the preparation of the table rather than

preparing it personally is of no consequence given the clear dicta in the

aforementioned cases.

17. The defendants submitted that the allegation that Herai has not identified

the specific records upon which he relies and is therefore giving hearsay

evidence, is also without merit because the aforementioned cases

establish that Herai’s evidence is to be treated as the direct evidence of

the company, and it is sufficient for him to say (as he did at paragraph 5)

that the facts deposed to “are derived from his examination of the records

of the Defendants with respect to the resignation of each of the persons

listed”.

18. According to the defendants, the claimant’s objection to exhibit “A.H.2” on

the ground that it amounts to a “banker’s book” within the meaning of

section 21 of the Evidence Act (Chap 7:02) (“the Act”) and that the

requirements for admissibility under sections 27 (1) and 28 of the Act have

not been met is ill founded. The defendants submitted that exhibit “A.H.2”

is plainly compiled from employee information within the custody of the

Bank, and relates to employment histories and employee entitlements.

That such information cannot reasonably be construed as “banker’s

books” within the meaning of the term as used in the Act because it does

not relate to “the ordinary business of a bank”. In so submitting, the

defendants relied on the following authorities.

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19. In the case of Williams v Williams5, the English Court of Appeal had cause

to consider, inter alia, section 9 of the Banker’s Books Evidence Act 1879

(as originally enacted and which is in virtually identical terms to section 21

of the Act) which provided as follows;

“…Expressions in this Act relating to ‘bankers’ books’ include ledgers, day

books, cash books, account books, and other records used in the ordinary

business of the bank”

20. Sir John Donaldson MR, who delivered the judgment of the Court

concluded, at page 167 of the judgment at letters B to D, as follows;

“The Act in this form clearly contemplated that the banks had a series of

books of various kinds which, in the course of the ordinary business of the

bank, were in everyday use in that clerks made entries, that is to say wrote,

in them. The transfer of any of these books to the court, with a consequent

inability to make such entries, and indeed to consult the books, would have

been a very considerable inconvenience. Hence the power to provide

certified copies, not of the books, but of the relevant entries in the books.

However there was no need for this power to extend, and it did not extend,

to papers (including cheques and paying-in slips) which were retained in

the bank's possession, but did not constitute an "entry in a banker's book.”

21. The case of R v Dadson6, wherein the English Court of Appeal again

considered section 9 (2) of the Banker’s Books Evidence Act 1879 it held as

follows;

5 [1988] 1 Q.B. 161 6 (1983) 147 JP 509

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“Whilst the Bankers' Books Evidence Act enables evidence to be admissible

in a court by the production of copies, rather than the originals, it does so

provided only that the book, one of the types referred to in that section, is

one of the ordinary books of the bank, and the entry was made in the

ordinary course of banking business. It is therefore manifest that these

letters could not be brought within the clearly expressed language of that

Act.”

22. The defendants submitted that the letters which the court found could not

be brought within the clearly expressed language of the Act were letters

contained in a bank correspondence file which pertained to the balance of

the appellant’s account. Accordingly, the defendants submitted that

exhibit “A.H.2” is therefore not subject to the requirements set out in the

Act applicable to the use of “banker’s books”.

23. The defendants submitted that the claimant incorrectly alleged that the

documents at exhibit “A.H.3” to the Herai Affidavit that are unsigned have

no probative value. According to the defendant, Herai stated at paragraph

12 of his affidavit that at resignation each of the proposed representees

(with one exception) made an election to receive, and did in fact receive,

an ESOP II payment calculated on the basis of the number of units they

held in the plan. He then provided at “A.H.3” internal copies of Bank

documents relating to those payments. The defendants submitted that the

fact that several of these contemporaneous documents are unsigned

copies of original letters does not mean that same are of no probative

value. According to the defendants, the proper inference to be drawn, in

light of Herai’s evidence at paragraphs 12 and 13 of his affidavit that

payments were made to the persons identified in those documents, is that

the documents were received by the persons to whom they are addressed.

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The defendants submitted that it should be noted that none of the

proposed representees have denied withdrawing their units and receiving

payment.

24. According to the defendants, at paragraph 4 of the Herai affidavit, he

stated that he has been duly authorized to depose the affidavit on behalf

of the defendants. As such, the defendants submitted that it was

therefore plain that they have authorized him to do so.

25. The defendants submitted that paragraph 12 of the Herai affidavit contains

key statements of fact properly receivable into evidence, namely, a

statement that the proposed representees (except Michelle Devenish)

made an election at resignation and did receive an ESOP II payment

computed on the basis of the number of units allocated to them when they

were members of the plan. According to the defendants, if any portion of

the paragraph is to be struck out (which is not admitted) it should be

limited to the word “informed” in line 2, and the last sentence of the

paragraph.

26. The defendants submitted that as Herai’s evidence is to be treated as the

direct evidence of the company, and it is not necessary for him to identify

the specific records he reviewed, the claimant’s objections to paragraphs

8 and 14 must fail.

The claimant’s submissions in reply

27. The claimant submitted that the cases relied on by the defendants

strengthens her submission that the defendants’ evidence contained in the

Herai Affidavit remains hearsay and inadmissible. That the facts of both

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Seereeram Brothers Limited supra and United Engineering Services

Limited supra clearly demonstrated that a company’s deponent must

obtain the deposed evidence from a source with direct knowledge from

within the company. The claimant submitted that the defendants have not

proven that Herai in his affidavit had in any way satisfied the

aforementioned requirement at all. That Herai has not even stated in his

affidavit what records he examined and whether or not those records

directly concerned these proceedings. As such, the claimant submitted

that the evidence contained in the Herai affidavit remains unadulterated

hearsay and is inadmissible.

28. According to the claimant, the focus of the defendants’ argument is that

once an employee or official of a company deposes to matters from the

company’s records, the employee need only depose that the information

is from the company’s records. No proof is required that the source in the

company is a proper source for so concluding and the statement becomes

immediately admissible without any indication as to what records were

checked. The claimant submitted that following that reasoning, the

defendants submitted that where the Herai affidavit produces unsigned

letters of the class of persons suing, it is sufficient for Herai to depose that

he got the letters from the relevant company department and the

documents were unsigned. According to the claimant, the aforementioned

cannot be right. The claimant submitted that the whole purpose of source

and grounds is to confirm that what is presented to the court by the

deponent can be relied upon. That Herai deposes that he caused the table

annexed as “A.H 2” to be prepared, suggesting that someone else did it

from information which has not been identified. Consequently, the

claimant submitted that the table is unadulterated hearsay with no source

and grounds two three times removed from the maker of the affidavit.

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That as the table is unsigned, no one knows who the maker is of that

document.

Findings

Banker’s books

29. This must be the starting point as the objections in relation to the non-

compliance with the provisions of the statute will fall by the way should

the books not be considered banker’s books. Section 21 of the Evidence

Act provides a pellucid definition of Banker’s books as follows;

“bankers’ books” means and includes ledgers, day books, cash

books, account books, and all other books used in the

ordinary business of a bank;

30. The key to the interpretation in the court’s view lies in the meaning of

“ordinary business of the bank”. What then is the bank’s business. Banks

are classified as financial institutions according to the Financial

Institutions Act Chap 79:09. By section 2 thereof, “banking business” or

“business of banking” for the purpose of the Act is defined by section 4(2)

of the Act as the business of receiving of deposits of money from the public

on current account or deposit account which may be withdrawn on

demand by cheque, draft, order or notice and the making of loans, and the

granting of credit facilities, and generally the undertaking of any business

appertaining to the business of commercial banking. The definition

contained in the Act is in the court’s view an exhaustive one which fully

encapsulates the business of a bank both as a matter of law and of logic.

31. It follows that that the term “ordinary business of a bank” must take its

colour from that definition. It must be underscored that the purpose of

sections 27 to 30 of the Evidence Act is to make admissible that which in

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the ordinary course of the rules of evidence would be inadmissible for

various policy and legal reasons including but not limited to the limiting

the requirement for several witnesses who may have compiled records in

the course of their duty to attend court especially where they may have

done so many years ago and they are no longer available. To that end

sections 27 to 30 are all provisions which assist the presumption of law

created by section 26 of the Evidence Act which reads;

“Subject to this Act, a copy of any entry in a banker’s book shall,

in all legal proceedings be received as prima facie evidence of

such entry, and of the matters, transactions, and accounts therein

recorded.”

32. It is therefore clear to the court and it so finds that the records attached to

the affidavit of Herai are not records which are compiled by the bank as part

of its ordinary business. The records are in fact records of matters that occur

as between the bank and its employees in the course of the employee’s

employment with the bank. In the court’s view, this type of record does not

fall to be considered under the definition of banker’s book referred to in

sections 26 to 30 of the Evidence Act. It follows that the requirements for

admissibility of copies set out in the relevant sections do not apply to the

documents attached to the Herai affidavit and the documents do not benefit

from the presumption of prima facie proof created by section 26. That does

not however mean that the evidence is inadmissible on this basis.

Other grounds of evidential challenge

Hearsay

33. Part 31.3 CPR sets out as follows;

“(1) The general rule is that an affidavit may contain only such

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facts as the deponent is able to prove from his own knowledge.

(2) However, an affidavit may contain statements of information

and belief—

(a) where any of these Rules so allows; and

(b) where it is for use in any procedural or interlocutory

application or in an application for summary judgment,

provided that the source of such information and the

ground of such belief is stated in the affidavit.

(3)The court may order that any scandalous, irrelevant or otherwise

oppressive matter be struck out of any affidavit…”

34. So that the mere fact that an affidavit contains hearsay in insufficient on

its own to make the contents inadmissible where the affidavit has been

sworn in support of a procedural application which is the case here.

However, Part 31 makes it clear that the source of information and belief

must be stated. This has always been the position in relation to

interlocutory applications even pre CPR. There are two objections in this

regard. The first is that the document AH2, is an unsigned document

therefore its source is unknown. That being the case the witness’

testimony is hearsay he not having set out his source of information and

belief. Secondly that paragraphs 14(a) and (b)(i), (ii) and (iii) should be

struck out as the witness has failed to set out the source of information

and belief in relation to the contents thereof.

35. In relation to both objections it is to be noted that Herai is the Head of

Human Resources (HR) of both defendants and purports to make the

statements he has made in his capacity as head of HR after having

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examined the records of the defendants. It is a reasonable inference to

draw that as head of HR he would have been privy to all relevant records

within the context of HR and that the information provided in the exhibit

were part of the official records of the HR department in relation to the

applicants in this case. Further, it is his testimony that he was the person

who caused the exhibit AH2 to be prepared. In that regard in the court’s

view, the requirement of Part 31 has been fulfilled as the witness has

deposed more than sufficient to demonstrate that the source of the

information he has provided is that of the first and second defendants on

whose authority he has sworn the affidavit. Further, at paragraph 5 of his

affidavit, Herai deposes that the facts contained therein are true and

correct and taken from the records of the defendants. While therefore it

is correct to say that the witness has not treated with the issue source of

information and belief at paragraph 13, (the paragraph through which AH2

is exhibited), the court must examine the affidavit as a whole and take the

averments in context. It is pellucid to the court that the effect of

paragraphs 4 and 5 of the affidavit is that of identifying the source of the

information to be provided and the belief in the truth of its contents. The

mere fact that the persons who may have prepared the information is not

set out is in the court’s view irrelevant as it is clear that information

emanates from both defendants. So too is the failure of the witness to say

that he checked the record as against the original and was satisfied as to

the correctness in the circumstance where as a matter of inference the

witness had testified to the truth of the contents of all the records he

obtained earlier on in his affidavit in general form.

36. It follows therefore that for those reasons the court will not strike out

either AH2 or paragraphs 14 (a) and (b)(i),(ii) and (iii) which are based on

the information provided at AH2.

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37. It follows however that the objection to paragraph 4 of the affidavit must

also be dismissed on the same basis.

38. In relation to the objection to the exhibit AH3, the court accepts the

submissions of the claimants in part. This exhibit consists of letters

addressed to the potential representees purporting to enclose cheques to

each of them as a refund on their pension fund contributions. The letters

that emanate from the defendants carry stamps indicating by whom the

originals were signed. In the court’s view, these letters are

unobjectionable. However, attached to each letter is what purports to be

a receipt from each potential representee but they are all unsigned. AH3

has been annexed through paragraph 13 (e) of the affidavit of Herai.

Nowhere in that paragraph does the witness say that the receipts were

signed and returned to the bank. His evidence is simply that the receipts

(presumably the blank unsigned ones) would have been dispatched with

each package. The court therefore is of the view that no weight is to be

attached to those receipts in relation to the issue of whether they evidence

payment received. The court therefore agrees with the claimant that they

carry no probative value in relation to the issue before the court on the

procedural application and they shall be struck out.

39. In relation to the objection to the second sentence of paragraph 8 of the

affidavit, the court would also dismiss the objection. The witness has in

fact produced that which he alleges to be a signed copy of an election by

the application in this case Ms. Dillon. This is not a hearsay document and

does not require a statement of information and belief. Ms. Dillon had a

full opportunity to deny the contents of her election by way of affidavit but

has failed so to do. Further, the court must bear in mind that the evidence

before it is not evidence for the trial of the case but is that which is filed

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on the procedural application. The evidence is therefore to be simply taken

at face value at this stage.

40. Finally, in relation to the objection to paragraph 12 of the affidavit. The

court accepts that the issue of non-disclosure by the potential

representees is not a matter for comment by the defendants by way of

reference to the affidavits of the potential representees and comment

thereon. The first sentence of paragraph 12 will therefore be struck out

but the second or last sentence shall remain as that sentence encapsulates

the case for the defendant on the application.

The main issue on the application

41. The main issue for determination is whether the claimant should pursuant

to Rule 21.4(3) of the CPR be appointed a Representative Claimant for the

persons named in the schedule attached to the Statement of Case.

The CPR

42. Rule 21.4 of the CPR provides as follows;

“21.4 (1) This rule applies only to proceedings about—

(a) the estate of someone who is dead;

(b) property subject to a trust; or

(c) the construction of a written instrument.

(2) The court may appoint one or more persons to represent any person or

class of persons (including an unborn person or persons) who is or may be

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interested in or affected by the proceedings (whether at present or for any

future, contingent or unascertained interest) where—

(a) the person, or the class or some member of it, cannot be ascertained or

cannot readily be ascertained;

(b) the person, or the class or some member of it, though ascertained

cannot be found; or (c) it is expedient to do so for any other reason.

(3) An application for an order to appoint a representative party under this

rule may be made by—

(a) any party; or

(b) any person who wishes to be appointed as a representative party.

(4) A representative appointed under this rule may be either a claimant or

a defendant.

(5) Where there is a representative claimant or representative defendant,

a decision of the court is binding on everyone he represents.”

The submissions of the claimant

43. The claimant submitted that none of the potential representees could

have in any way, made any informed election at resignation, as alleged by

the defendants. The claimant relied on the case of Deborah Yasmin

Brathwaite v RBTT Bank Limited7 wherein the court found that there was

a deliberate concealment on the part of the Bank in conveying information

to employees on the ESOP II. Justice Jones (as she then was) at paragraph

62 pronounced as follows;

7 CV2011-00359

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“I am satisfied that the Bank must have known the true status of the plan.

The use of the word “wound up” was incorrect. I find that the effect of the

Bank using the term “wound up” in the circumstances amounted to a

deliberate concealment by the Bank of the true status of the ESOP II. The

fact that this deliberate concealment may not have been with malicious

intent is to my mind irrelevant. What is relevant is the fact that despite the

fact that this information was known to the Bank it was not disclosed to

the Claimant and in fact by the deliberate statements of the Bank and its

employees the true status of the ESOP II was concealed from the Claimant.”

44. The judgment of Justice Jones (as she then was) concluded that the Bank

had made it appear that the Staff Retirement Bonus Plan was wound up.

The impression which the Bank, with full knowledge, conveyed was that

employees were not entitled to anything more than the Bank was giving

them as the plan was wound up. Her Ladyship however found that the Staff

Retirement Bonus Plan was closed to new members and that there was a

material difference between the plan being closed and the plan being

wound up. Consequently, the court ruled that employees were entitled to

dividends for the period March 31, 1999 to March 31, 2007. That the

closure of the plan meant only that new members would not be admitted

to the plan. Existing members in 1998 would be entitled to dividends.

Winding up meant a disposal of plan’s assets and no dividends would have

accrued.

45. At paragraph 63, Her Ladyship stated as follows;

“To my mind the fact that the ESOP II,” (Staff Retirement Bonus Plan ) “was

closed rather than wound up is a fact directly relevant to the Claimant’s

right of action in this regard. It is clear that with respect to the payment of

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dividends there is a material difference between the plan being wound up

and the plan being closed. To my mind the use of the term “wound up”

suggests a disposal of the assets of the plan. In those circumstances it

follows that dividends would not have accrued. Conversely, as suggested

by the Bank’s evidence, the effect of closure was not a disposal of assets

but merely that no new members were added to the plan and no additional

contributions were made by the Bank on behalf of its Employees. In my

opinion the disparity between the two positions presents a material

difference relevant to the right of the Claimant to bring an action for unpaid

dividends.”

46. The claimant also relied on the case of Motor Oil Hellas Refineries v

Shipping Corporation of India8 wherein Lord Goff at page 398 stated as

follows;

“it is a prerequisite of election that the party making the election must be

aware of the facts giving rise to this new right. Where with knowledge of

the relevant facts a party has acted in a manner consistent only with his

having chosen one of the two alternative and inconsistent courses of action

open to him, he is held to have made his election accordingly. It requires an

unequivocal representation…”

47. The claimant further relied on the case of National Insurance Property

Development Company Limited NH International (Caribbean) Limited9,

wherein Bereaux J.A. at paragraphs 21 and 22 relied on Lord Goff’s

statement above in Motor Oil Hellas Refineries supra and stated as follows;

8 [1990] 1 Lloyds Rep 390 9 C.A. No. 281 of 2008

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48. “It is sufficient to show that the electing party has made an unequivocal

representation of his decision, in circumstances in which his knowledge of

the facts and of his legal rights allowed him to make an informed choice

and that he communicated that decision to the other party.”

49. According to the claimant, as set out in paragraph 58 of the Statement of

Case filed herein, by reason of the concealment by the Bank, the claimant

and those she represents were denied by the Bank their entitlements

claimed in these proceedings, that is, to the value on their shareholding

with the stock split from June, 1999 but also the values on their

shareholding from the Rights Issues in 1994 and 1998 and the Bonus Issue

in 1996 in conjunction with the special conversion of ESOP units to RBTT

shares in June or July, 2004 and the final conversion of RBTT shares to RBC

shares in June or July, 2008. Put simply, the case for the claimants is that

they still remained members of the Staff Retirement Bonus Plan that

continued to grow with the advent of dividends on shares and various

stock enhancements. Whatever was removed from that plan did not

encompass the gains from the plan which were concealed by the

defendants. Those monies left in the plan which the claimants did not

know about, were held on trust for them and they want it now. The

claimant submitted that the defendants’ argument throws a blanket over

the Deborah Yasmin Braithwaite supra judgment and attempts to

advance the position that the plan was emptied when one resigned and

one got what was due to him or her so he or she is owed nothing. As such,

the claimant submitted that the court has not even begun to examine

those arguments and should not do so at this early stage of the matter.

50. The claimant submitted that had that critical information not been

concealed by the defendants at the time of resignation, there would

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certainly not have been any or any such election by the claimant and those

she represents to accept the significantly reduced entitlements as set out

in the Herai affidavit. That arising out of the defendants’ concealment as

found by the court in Deborah Yasmin Braithwaite supra, the plan was not

wound up. The ESOP which holds the shares still exists. The claimant

submitted that it follows that there is an entitlement to the value of the

stock split which is inversely connected to the value of the units in the Staff

Retirement Bonus Plan. That at paragraph 49 of Deborah Yasmin

Braithwaite supra, the court found “…that the plan continued to hold and

receive the benefit of its investments, including the RBTT shares, held by

it.” Further, at paragraph 61 of Deborah Yasmin Braithwaite supra, the

court maintained that “the plan could not have been wound up because

there were still persons who were entitled to benefits under the plan”. As

such, the claimant submitted that the court was directly on point with that

latter finding, as it was she and those that she represents who were the

people the court referred to when it found that “there were still persons

who were entitled to benefits under the plan”.

51. Consequently, the claimant submitted that it is clearly evident that any

purported election by the claimant and those she represents at

resignation, to receive ESOP II payments has absolutely no legal basis

whatsoever and any such election, if at all, has been entirely defeated in

its alleged purported effect and intent by the deliberate concealment of

material facts at the relevant times by the defendants, as the court has

found in Deborah Yasmin Braithwaite supra.

52. The claimant submitted that the defendants’ allegation that none of the

claimants have the same potential entitlements and therefore the

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claimant’s representation application is baseless, is a complete and utter

misrepresentation of the true legal position in these proceedings.

53. The claimant relied on the case of Eugene Lopez v TSTT & RBTT10 wherein

Archie J (as he then was) provided a comprehensive analysis of the

requirements to be satisfied for the appointment of a representative

Claimant in complex trust litigation regarding employee benefits. In His

Lordship’s decision (on a allowing the plaintiff’s appointment in a

representative capacity on behalf of those persons who were members of

the TEXTEL Pension Plan), it was stated as follows at pages 34 and 36;

“…Wherever it is appropriate, therefore, persons whose legal rights may be

affected or determined by the outcome of the proceedings, should be

represented… the possibility that the decision of the Court may ultimately

result in some members of the class being held to have different

entitlements, does not necessarily make representative proceedings

inappropriate.”

54. His Lordship’s decision was based on Order 15 Rule 13 which provides as

follows;

"13 — (1) In any proceedings concerning —

(a) …

(b) property subject to a trust, or

(c) the construction of a written instrument, including a statute.

The Court, if satisfied that it is expedient so to do, and that one or more of

the conditions specified in paragraph (2) are satisfied, may appoint one or

more persons to represent any person (including an unborn person) or

10 H.C.A. No.3572 of 1999

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class who is or may be interested (whether presently or for any future,

contingent or unascertained interest) in or affected by the proceedings.

(2) The conditions for the exercise of the power conferred by paragraph

(1) are as follows:-

(a)…

(b) that the person, class or some member of the class, though ascertained

cannot be found;

(c) that, though the person or the class and the members thereof can be

ascertained and found, it appears to the Court expedient (regard being

had to all the circumstances, including the amount at stake and the

degree of difficulty of the point to be determined) to exercise the power for

the purposes of saving expenses."

55. The claimant submitted that Order 15 Rule 13 is almost in identical terms

with CPR Part 21.4 which deals with representative actions. With respect

of Order 15 Rule 13, His Lordship stated as follows at pages 36 and 38;

“…there is no requirement in Rule 13 for all the members of the class to

share the 'same interest.' That is not to say that there need not be any

common underlying connection with the case. It is meaningless to speak

of a 'class' in the absence of some common feature which defines its

membership. That common feature must also bear some logical

relationship to the issues which are to be determined by the proceedings…

what is relevant for the present purposes if the fact that all the trasferees…

have interests arising out of the same instruments... They also have a direct

interest in the resolution of the issues raised insofar as it defines their

interests or entitlements.... Their common 'grievance' may be described as

the intended use of part of the surplus in the TEXTEL Plan to benefit persons

who were never members of the Plan. In theory, an application designed to

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preserve the whole of that surplus for distribution in the manner suggested

by the Plaintiff is for their benefit…

In deciding what is 'expedient' for the purposes of Rule 13, regard must also

be given to the fact that the vast majority of transferees have elected to be

represented by Mr. Lopez and there is no evidence of any dissent.”

56. The claimant submitted that in light of and in reliance on the findings in

Eugene Lopez supra, the true legal position in these proceedings is as

follows;

i. the possibility that the decision of the court in these proceedings

may ultimately result in the claimant and the potential

representees being held to have different entitlements, does not

necessarily make representative proceedings inappropriate;

ii. The claimant, potential representees and all persons whose legal

rights may be affected or determined by the outcome of these

proceedings, should be represented;

iii. The claimant, potential representees and all such persons have an

underlying connection with the issues in these proceedings, all

being former employees of the defendants who resigned between

1999 and 2009, they were/are members of the ESOP II plan, they

all have outstanding entitlements owed to them arising from their

membership to the ESOP II plan; those entitlements are claimed in

these proceedings, that is, to the value on their shareholding with

the stock split from June, 1999 but also the values on their

shareholding from the Rights Issues in 1994 and 1998 and the

Bonus Issue in 1996 in conjunction with the special conversion of

ESOP units to RBTT shares in June or July, 2004 and the final

conversion of RBTT shares to RBC shares in June or July, 2008.

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iv. It is the evidence in these proceedings that all potential

representees have elected to be represented by the claimant and

there is no evidence of any dissent.

57. The claimant and those she represents submitted that when they resigned

from employment with the defendants between the years 1999 and 2009,

the defendants failed to pay them their full entitlement due to them at the

date of resignation. That they have all consistently maintained that their

outstanding entitlements remained in the ESOP II plan since the date of

resignation and have been augmented by the defendants with the stock

split from June 1999, the Rights Issues in 1994 and 1998, the Bonus Issue

in 1996 in conjunction with the special conversion of ESOP units to RBTT

shares in June or July, 2004 and the final conversion of RBTT shares to RBC

shares in June or July, 2008.

58. As such, the claimant submitted that based on the findings and sound legal

reasoning by Archie J (as he then was) in Eugene Lopez supra, the

defendants’ allegation that none of the claimants have the same potential

entitlements and therefore the claimant’s representation application is

baseless, is a complete and utter misrepresentation of the true legal

position in these proceedings and should be completely dismissed by this

court.

59. The claimant submitted that the defendants’ third ground for opposing her

representation application is misguided and makes absolutely no sense

whatsoever as it only serves to unreservedly support the claimant’s

position in these proceedings. In their third ground, the defendants claim

that in respect of the potential representees, some resigned prior to 1999

and so can have no entitlement to any relief arising out of the 1999

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transaction, some resigned prior to 2004 and so can have no entitlement

to any relief arising out of the 2004 transaction and all persons had

resigned prior to 2008 and so can have no entitlement to any relief arising

out of the 2008 transaction. According to the claimant, by the defendants’

own words, it therefore means that those who resigned after 1999 but

before 2004 would then be entitled to the benefits of the 1999 transaction

and that those who resigned after 2004 but before 2008 would then be

entitled to the benefits of the 2004 transaction.

60. As such, the claimant submitted that based on the clear and unambiguous

language of the defendants in the Herai affidavit, it cannot be denied that

the unequivocal position is that the defendants admit that the potential

representees are entitled to the benefits of the stock split from June 1999,

the Rights Issues in 1994 and 1998 and the Bonus Issue in 1996 in

conjunction with the special conversion of ESOP units to RBTT shares in

June or July, 2004 and the final conversion of RBTT shares to RBC shares in

June or July, 2008.

61. The claimant submitted that the necessity for representation orders in

complex proceedings is evident and has been recognized by the court for

centuries and the representative action or claim is one which,

jurisprudentially, has been in existence for a long time. The claimant relied

on the case of Duke of Bedford v Ellis11 wherein Lord Macnaghten at 696

stated as follows;

“In considering whether a representative action is maintainable, you have

to consider what is common to the class, not what differentiates the cases

of individual members.”

11 All ER Rep 694

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62. The claimant also relied on the case of John v Rees12, wherein Megarry J,

citing Duke of Bedford supra and various 19th century cases, spoke of the

rule about representation being treated not as a rigid matter of principle

but "a flexible tool of convenience in the administration of justice".

63. The claimant further relied on the case of PNPF Trust Company Limited v.

Taylor & Ors13 wherein Proudman J stated as follows at paragraphs 44 and

45;

“Complex pension litigation is increasingly common as a result of pension

deficits, scheme closures and more onerous statutory employer funding

obligations. Such cases have to be efficiently managed if they are to

proceed to a satisfactory resolution…I do not think it can seriously be

argued that a case such as the present is capable of being heard promptly,

over a reasonable length of trial, and proportionately as to costs, without

some structure as to representation and argument. I therefore start from

the position that it is very likely indeed that at any rate some form of

representation orders will be made for the purposes of the main hearing…”

64. The claimant further adopted the position stated at paragraph 64 in PNPF

Trust Company Limited supra which was “…that the historical purpose of

representation orders was to enable all relevant parties to be heard in

circumstances where that would otherwise be impracticable. The

procedure was (and is) intended to include people within the ambit of an

action rather than to exclude them. The purpose was (and is) not to shut

someone out who is ready and willing to appear to represent his own

interests…”

12 [1970] Ch 345 at 370 13 [2009] EWHC 1693 (Ch)

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65. The claimant emphasized that the present proceeding is its infancy. The

claimant submitted that pleadings have not yet been closed and that the

defendants have not yet even filed their Defences in these proceedings

after two years. The claimant further submitted that all this court is

required to do at this stage is simply consider the claimant’s application for

a representation order. That in IBM United Kingdom Pensions Trust

Limited14 the following was stated at paragraph 24:-,

“…it is not necessary for a representation order to be made at an early

stage. It can equally well be made at the end of the proceedings. And at

that late stage, it does not much matter who is appointed as a

representative provided that the Court is satisfied that the interests of the

class have been fully aired.”

66. The claimant submitted that had the defendants been so sure that the

claimants had no entitlement to any monies held on trust for them, then

they could have applied for summary judgment. That curiously, the

defendants placed a deponent before the court who has not set out a

proper foundation for his evidence, has not even said who authorized him

to make his affidavit, failed to say what he looked at to place information

in his affidavit, prepared tables without any proper foundation

whatsoever, produced letters with no signature one after the other and

the defendants used the deponent to conclude from all of that, that these

claimants have no case simply because the deponent gave his opinion as

to entitlement under the plan. According to the claimant, no court on such

an affidavit without cogent evidence on a summary court application

should shut the parties out.

14 [2012] EWHC 125

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67. Consequently, the claimant submitted that the court should order that the

claimant, be appointed a representative Claimant in such manner as the

court sees fit justly in accordance with the administration of justice in

these proceedings, in keeping with the overriding objective to include all

potential representees within the ambit of the action and not shut out any

potential representee ready and willing to appear.

The submissions of the defendants

68. The defendants submitted that for the application to succeed, the onus

squarely rests on the claimant to demonstrate that she falls within the

scope of Rule 21.1 of the CPR which provides as follows;

“21.1 (1) This rule applies to any proceedings, other than proceedings

falling within rule 21.4 where five or more persons have the same or a

similar interest in the proceedings. (2) The court may appoint—

(a) one or more of those persons; or

(b) a body having a sufficient interest in the proceedings, to represent all

or some of the persons with the same or similar interest.

(3) A representative under this rule may be either a claimant or a

defendant.”

69. The defendants further submitted that as per Rule 21.2 (3) (a) of the CPR

an application for an order appointing a representative party must be (a)

supported by evidence; and (b) identify every person to be represented,

either individually, or by description, if it is not practicable to identify a

person individually.

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70. Consequently, the defendant submitted that given the provisions of the

CPR, the evidence of the claimant must 1) demonstrate to the court that

five or more persons have the same or similar interest in the proceedings;

and 2) that she is one of those persons.

71. According to the defendant, whether persons have the same or similar

interest is a question of fact. The defendant submitted that in order to

determine whether the claimant has the same or similar interest with the

twenty-one persons she seeks to represent, the only evidence which the

claimant has placed before the Court is as follows;

i. the affidavit of Mr. Andre Le Blanc filed on June 23, 2017 (“the

Principal Affidavit”) in which he stated that he, as instructing

attorney, is advised by Counsel and verily believed the same to be

true that;

a) the claimant and those that she represents have a

“common interest” in the defendants’ Employee Share

Ownership Plan and Staff Retirement Bonus Plan of the

defendants ; and

b) the nature of this common interest is the same even if

individual values varied .

ii. the supplemental affidavit of Mr. Andre Le Blanc filed on July 13,

2017 (“the Supplemental Affidavit”) by which he annexed various

forms signed by the persons the claimant seeks to represent

indicating their consent that she do so; and

iii. affidavits filed by nineteen of the twenty persons the claimant

purports to represent in which they each set out the following;

a) facts relative to the details of their previous employment

with the defendants;

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b) facts relative to actions taken on their behalf before and

during this litigation; and

c) the fact that they have been advised by Counsel that they

along with the claimant and the other persons named in the

Schedule are beneficiaries under the various trusts

mentioned in the Statement of Case and that they “all have

the same and/or similar interest in the proceedings”.

72. The defendants submitted that neither the claimant nor any of the

proposed representees has given sworn evidence that they themselves

believe that there is a common interest, and further, none of the witnesses

has identified or defined the “common interest” which it is alleged they

share (or even sought to do so).

73. The defendants further submitted that the foundation for the alleged

belief of Counsel that the proposed representees have the same or similar

interest is glaringly absent. That the bald statement by each proposed

representee that they were advised by Counsel that they have the same

and/or similar interest or a common interest in the proceedings is nothing

more than a unfounded statement of opinion that carries the matter no

further.

74. The defendants submitted that as a matter of law, the views of Counsel,

no matter how eminent, are irrelevant. The defendants further submitted

that with specific reference to opinion evidence proffered by Counsel, the

same is generally inadmissible. In so submitting, the defendant relied on

the case of Gleeson v J Wippell & Co Ltd15 wherein Megarry V-C at page

63 letters D to G had the following to say;

15 [1977] 3 ALL ER 54

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“…As I told counsel for the plaintiff, I would listen with pleasure to any

submission on the subject that he chose to put before me, whatever his

source of inspiration, but I would not listen to the words of a Queen’s

Counsel, however eminent, or the author of an article, when proffered as

evidence of the legal rights and prospects of a litigant. A court does not

hear expert evidence on what the law of England is, or what the rights of

parties are under that law.…”

75. The defendants submitted that the stark reality is that there are simply no

primary or secondary facts adduced by the claimant or the proposed

representees which allow the court to determine the existence of the same

or similar interest in the proceedings among them all. That the mere fact

of employment by the defendants and membership in a plan, without

more, does not establish the proposed representees to have the same or

similar interest in the proceedings as the claimant.

76. According to the defendants, the corpus of evidential material deployed

by the claimant on the application is woefully inadequate for a court to

come to a finding that the claimant and the proposed representees, or any

two of them for that matter, have the same or similar interest in the

proceedings. The defendants submitted that the evidential inadequacy of

the application is made all the more apparent once it is appreciated that

the claimant has left the court entirely in the dark with respect to the

following matters;

i. the terms and conditions of the plan;

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ii. whether the terms and conditions of the plan are of universal

application to all employees irrespective of their dates of

employment or resignation;

iii. whether the individual circumstances of the proposed

representees are or are not relevant to the question of same or

similar interest in the proceedings; and

iv. whether the proposed representees or any of them consider the

facts set out in the Statement of Case to be true and correct.

77. Without prejudice to the foregoing submissions, the defendants submitted

that in any event, if one examines the pleaded case of the claimant as

against the un-contradicted evidence adduced by the defendants, it is

plain that the claimant does not, on her pleaded case, have the same or

similar interest in the proceedings as the persons she has sought to

represent.

78. The defendants submitted that as a matter of law, persons do not have the

same or similar interest in proceedings if the very existence of the

grievance depends on facts which may differ in each person’s case.16 That

the Fixed Date Claim Form and the Statement of Case as filed, which

contain the claim which is being advanced, both demonstrate that the

claimant is suing on the basis that she is a current member of the Staff

Retirement Bonus Plan and that the proposed representees are also

members of that plan. According to the defendants, the evidence adduced

by it however, is that the proposed representees were not members of the

plan at the time that this claim was commenced and have not been

members of the plan since their resignation. Accordingly, the defendants

16 See the judgment of Seepersad J in Claim No. CV2015-02000 Haig Community United v The Chaguaramas Development Authority.

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submitted that that is a material difference of fact which illustrated that

the interest of the claimant (as an alleged existing member) is dissimilar to

that of the proposed representees (who are each former members).

79. The defendants submitted that the Herai Affidavit (to which there has

been no answer) depicted the following;

i. that save for Michelle Devenish, all of the proposed representees

resigned from the employ of the defendants before 2008 at latest;

ii. that the proposed representees elected at resignation to receive

and did in fact receive payment due to them under the plan; and

iii. upon receipt of those payments the proposed representees ceased

to be members of the plan .

80. The defendants further submitted that it should be noted that the present

action, as formulated on the pleadings, essentially seeks relief against the

defendants in respect of the following three events of alleged wrongdoing:

i. in June, 1999 (“the June 1999 Event”) the number of units to each

member of the plan should have been increased as a result of a

stock-split;

ii. in June, 2004 the units allocated to each member should have been

converted into RBTT shares pursuant to the Bank’s circular letter

dated October 27, 2004 (“the June 2004 Event”); and

iii. in 2008 those nominal shares to which members of the plan were

allegedly entitled should have been converted into the shares of

the Bank’s parent corporation pursuant to a memo dated July 11,

2008 (“the July 2008 Event”).

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81. According to the defendants, notwithstanding that pleading which sets out

the claimant’s case against the defendants for all three events, the

evidential material before the court on the application demonstrated that

none of the proposed representees have a similar interest to the claimant

because of the following;

i. One of the proposed representees, Janice Valentine resigned from

the employ of the defendants and received payment for her units

in the plan in May 1999, and accordingly exited the plan before all

three events;

ii. Twelve of the proposed representees exited the plan before the

June, 2004 and July, 2008 events. In particular, on the affidavit

evidence on the following twelve persons, they resigned from the

plan on the following dates;

a) Tara Balwant - October, 1999

b) Leela Geelalsingh - June, 2000

c) Bibi Jamadar - June 29, 1999

d) Karel Joefield - April 15, 2002

e) Keith King - October 29, 2003

f) Giselle McIvor - April, 2001

g) Susan Mohammed - December, 2000

h) Mala Sankar - April, 2003

i) Taramatie Siewnarine - December, 1999

j) Ava Paul-Voisin - September, 1999

k) Bruce Rezende - March, 2000

l) Denyse Rezende - July, 2001

82. According to the defendants, the unchallenged evidence set out in the

Herai Affidavit at paragraphs 12, 13 and exhibit A.H.2 thereto is that all of

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those twelve persons resigned from the employ of the defendants and

received payment for their units in the plan prior to the June, 2004 and

July 2008, events. Accordingly, the defendants submitted that they are all

to be treated as having exited the plan before those events.

83. The defendants submitted that Dianne John, who is mentioned in the

schedule to the Statement of Case as one of the proposed representees,

did not file an affidavit, and therefore there was no evidence from her as

to her date of resignation. However, at paragraph 13 to the Herai Affidavit

and exhibit A.H.2 thereto contained unchallenged evidence which

established that she resigned from the employ of the defendants in

September, 1999 and received payment for her units in the plan at that

time. As such, the defendants submitted that she is therefore to be treated

as having left the plan before the June 2004 and July 2008 events.

84. According to the defendants, apart from Janice Valentine the twelve

persons and Dianne John, the following additional persons have adduced

affidavit evidence which established that they resigned from the plan

before the July 2008 event:

i. Marcia Dalrymple - September, 2005

ii. Ramesh Lutchman - October 30, 2005

iii. Jenny Elbourne - October, 2007

iv. Joyce Sirjoo - December, 2006

v. Barbara Ramcharan - June, 2006

85. The defendants submitted that the undisputed evidence set out in the

Herai Affidavit at paragraphs 12, 13 and exhibit A.H.2 thereto was that

each of those five persons resigned from the employ of the defendants and

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received payment for their units in the plan prior to the July 2008 Event.

Accordingly, the defendants submitted that those persons are to be

treated as having exited the plan before that event.

86. The defendants submitted that as to the last proposed representee,

Michelle Devenish, the evidence is that she resigned in October, 2008. That

unlike the other proposed representees and the claimant, she did not

make an election upon resignation and accordingly did not receive any

payment in respect of her units.

87. According to the defendants, the obvious material differences between

the claimant and the proposed representees are also readily apparent

once it is appreciated that the rights of a member under the plan must

necessarily crystalize on retirement or early resignation and new rights in

the plan cannot be obtained by a person who is no longer a member. The

defendants submitted that in that regard, the claimant’s case on her

pleading is as follows;

i. until June 30, 2004 upon retirement or resignation, members of the

plan were entitled to be paid the market value of their units in the

plan;

ii. on June 30, 2004 units in the plan should have been converted to

RBTT Shares with the consequence that a member who retired or

resigned post June 30, 2004 became entitled to RBTT shares

instead of the market value of their units in the plan; and

iii. on June 16, 2008, members holding RBTT shares in the plan

became entitled to have those shares converted into Royal Bank of

Canada shares with the consequence that a member who retired

or resigned post June 16, 2008 became entitled to Royal Bank of

Canada shares instead of RBTT shares.

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88. As such, the defendants submitted that it is plain in the light of the facts

and matters set out above, that the claimant is in an entirely unique

position and none of the persons whom she seeks to represent have the

same or similar interest in the present action which she is prosecuting.

89. The defendants submitted that as a matter of law, persons do not have the

same or similar interest in the proceedings if the Defences available

against them may differ. In so submitting, the defendants relied on the

case of Emerald Supplies Ltd and Anor. v British Airways plc17 wherein a

party unsuccessfully appealed against a decision of a first instance judge

striking out the representative element of a claim. Mummery LJ who gave

the judgment of the English Court of Appeal with whom the other

members of the court agreed, succinctly stated the position at paragraph

64 as follows;

“A second difficulty is that the members of the represented class do not

have the same interest in recovering damages for breach of competition

law if a defence is available in answer to the claims of some of them, but

not to the claims of others: for example, if BA could successfully run a

particular defence against those who had passed on the inflated price, but

not against others. If there is liability to some customers and not to others

they have different interests, not the same interest, in the action.”

90. Against the backdrop of the law as laid down in Emerald Supplies supra,

the defendants submitted that given that the June 1999 event, June 2004

event and July 2008 event all occurred in very different circumstances and

on different dates and the fact the proposed representees themselves left

the plan at various dates and received varying amounts for their units (save

17 [2011] Ch 345

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for Michelle Devenish), there will necessarily be different defences by the

defendants to those persons on the issue of liability as distinct from

quantum of damages.

91. The defendants further submitted that given that the claimant’s case was

filed in 2017 and that the events complained of were in 1999, 2004 and

2008, the question of a limitation defence is obvious, as is too an

alternative defence of laches.

92. Moreover, the defendant submitted that limitation and/or laches defences

are fact specific. That that leaves alive, at least at this stage, the possibility

of differing outcomes on such defences in relation to each of the persons

that the claimant seeks to represent. Accordingly, the defendants

submitted that the aforementioned matter effectively disentitles the

claimant to the representation order sought by her on the application. The

defendants reminded the court of the following;

i. The remarks of Mummery LJ in Emerald Supplies supra to the

effect that if there is liability to some persons and not others they

have different interests, not the same interest; and

ii. The remarks of Seepersad J in Haig Community United supra who,

when considering whether the claimant before His Lordship was a

party that had a sufficient interest in the proceedings to represent

all or some of the persons with the same or similar interest, stated

at paragraph 9 that “…existence of each member’s claim depends

on specific facts which may differ in each member’s individual case.

Therefore it cannot be said that the Claimant has a common

interest or that there is a common grievance. The interest of each

member is independent and distinct.”

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93. The defendants submitted that the question as to whether the proposed

representees have an identity of interest with the claimant is a matter

which as a matter of principle ought properly to be determined at the

outset of the proceedings. The defendants further submitted that if the

court has any reservations or doubt as to whether the interests are the

same or similar, the proper course is to refuse the application. The

defendants again relied on Emerald Supplies supra wherein Mummery LJ

stated as follows at paragraph 65;

“In brief, the essential point is that the requirement of identity of interest

of the members of the represented class for the proper constitution of the

action means that it must be representative at every stage, not just at the

end point of judgment. If represented persons are to be bound by a

judgment that judgment must have been obtained in proceedings that

were properly constituted as a representative action before the judgment

was obtained. In this case a judgment on liability has to be obtained before

it is known whether the interests of the persons whom the claimants seek

to represent are the same. It cannot be right in principle that the case on

liability has to be tried and decided before it can be known who is bound

by the judgment. Nor can it be right that, with Micawberish optimism,

Emerald can embark on and continue proceedings in the hope that in due

course it may turn out that its claims are representative of persons with the

same interest.”

94. According to the defendants, the claimant’s argument in favour of the

substantive relief claimed was principally based on the decision in Eugene

Lopez supra. The defendants submitted that Eugene Lopez supra is useful

in only one respect insofar as the instant case is concerned. That in that

case, the Judge recognized that because a person was at one time a

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member of a plan was not sufficient, without additional relevant facts to

include them in a class for the purpose of proceedings relative to that plan.

The defendants further submitted that in Eugene Lopez, the Judge

specifically excluded from the class all persons who were not members of

that subject plan at the time relevant to the calculation of damages. At

page 32 paragraph 2 of the judgment, His Lordship stated as follows;

“During Counsel’s submissions, Dr. Denbow acknowledged that, as

formulated in the Summons, the class of persons the Plaintiff sought to

represent was very wide and could possibly include persons who had validly

withdrawn from the Plan prior to the alleged cut-off date (i.e. January 1,

1995). Such persons could have no real interest in the proceedings and

there would be no justification for including them as a class.”

95. Additionally, the defendants submitted that Eugene Lopez supra is

distinguishable for two other reasons; 1) there is no evidence before this

court to support the assertion that each employee has “consistently

maintained” that he or she was wrongfully treated by the defendants as in

Eugene Lopez and 2) there is no evidence before this court that the

nineteen named employees are the “vast majority” of the beneficiaries of

the plan as in Eugene Lopez.

96. Consequently, the defendants submitted that the facts before the court on

the application lead to the conclusion that each proposed representee has

the right (subject to limitations issues) to pursue their own specific

entitlement as a former member of the plan, but there is no adequate

evidential or legal foundation for them to act together as a group,

particularly in the light of the fact that different defences on the question

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of liability will emerge, as may substantively differing outcomes, after a full

trial.

97. The defendants submitted that the other cases referred to by the claimant

do not address the legal circumstances before this court, where the

proposed representees face different defences to their claims and/or

allegedly had the right to have their benefits quantified very differently

depending on when they resigned, having regard to the June 1999 event,

the June 2004 event and the July 2008 event.

98. The defendants submitted that the matter of the proposed representee’s

ESOP II elections on resignation, and the resulting end of their membership

in the plan, were raised in Mr. Herai’s affidavit for the limited purpose of

demonstrating that withdrawal from the plan and the date on which that

withdrawal occurred is relevant to the resolution of the claims advanced

on behalf of each of those persons. According to the defendants, those

facts were relevant to the determination on the application as to whether

they are differently situated from one another. The defendants further

submitted that those facts were not submitted to support any resolution

on the merits of the case, and indeed the court is not expected or invited

to try this issue now.

99. According to the defendants, the claimant relied heavily in her submissions

on findings made by the trial Judge in Deborah Yasmin Braithwaite supra.

The defendants submitted that it is not appropriate or adequate for the

claimant to seek to transpose findings from the trial of another action to

this litigation. In so submitting, the defendants relied on the case of Hoyle

v Rogers and Anor.18, wherein Christopher Clarke LJ, who gave a judgment

18 [2014] EWCA Civ 257

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with which the other members of the English Court of Appeal agreed,

stated as follows at paragraph 39;

“…findings of fact made by another decision maker are not to be admitted

in a subsequent trial because the decision at that trial is to be made by the

judge appointed to hear it (“the trial judge”), and not another. The trial

judge must decide the case for himself on the evidence that he receives,

and in the light of the submissions on that evidence made to him. To admit

evidence of the findings of fact of another person, however distinguished,

and however thorough and competent his examination of the issues may

have been, risks the decision being made, at least in part, on evidence other

than that which the trial judge has heard and in reliance on the opinion of

someone who is neither the relevant decision maker nor an expert in any

relevant discipline, of which decision making is not one. The opinion of

someone who is not the trial judge is, therefore, as a matter of law,

irrelevant and not one to which he ought to have regard.”

100. The defendants submitted that in any event, they are in agreement

with the claimant’s position that the court should not examine those

arguments at the present time.

The claimant’s submissions in reply

101. The claimant submitted that Rule 21.1 of the CPR, its particular

requirement for persons to have the same or a similar interest in the

proceedings and its supporting case law have absolutely no relevance in

this matter whatsoever. The claimant further submitted that CPR Rule 21.1

specifically states that it applies to any proceedings other than proceedings

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falling within Rule 21.4 and that the claimant’s representative action in this

case is brought under Rule 21.4.

102. The claimant submitted that Rule 21.4 is wider than Rule 21.1 since

Rule 21.4 contemplates the court ordering person/s to represent other

persons who are or may be affected by the proceedings concerning

property subject to a trust and does not specify, unlike Rule 21.1, a

requirement that the persons to be represented must have the same or

similar interests. The claimant further submitted that whilst Rule 21.1

demonstrates that the persons who may be representatives may be either

one or more of the five persons sharing the same or similar interests of the

other persons to be represented, or a body having a sufficient interest in

the proceedings, Rule 21.4 does not specify what connection must exist

between the persons appointed in a representative capacity and the

persons to be represented.

103. Moreover, the claimant submitted that Rule 21.4 does not state

that the persons represented must have the same or similar interests to

the persons performing the representation. That under sub-paragraph

21.4 (2) the court may make the representation order where classes of

persons cannot be ascertained, or where though ascertained, they cannot

be found, or if it is for any other reason expedient so to do. As such, the

claimant submitted that the rule also contemplates a situation involving

difficulty in identifying or locating affected parties or where representation

is needed for unavoidably absent persons.

104. In light of the above, the claimant submitted that the defendants’

reliance on Emerald Supplies supra becomes wholly irrelevant and

inapplicable. According to the claimant, paragraph 1 of Emerald Supplies

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supra states that it is concerned with the requirements of Civil Procedure

Rule 19.6 ("Representative parties with same interest"). The claimant

submitted that Rule 19.6 is the English equivalent of CPR 21.1, which as

submitted above, has no application whatsoever to these proceedings. The

claimant further submitted that what is noteworthy is that the English Rule

19.6(5) also specifically states that Rule 19.6, does not apply to Rule 19.7,

which is the English equivalent to CPR 21.4.

105. The claimant submitted that the court is invited to adopt the

approach of English Appeal Court in the case of Williams v Devon County

Council,19 which determined that representative proceedings which are

commenced without complying with CPR 19.6 are not thereby rendered a

nullity. The issue in that case was whether the judge fell into error in

allowing the action to proceed in the name of Ms. Williams, when initially

it had been commenced by the Sustainable Totnes Action Group. It was

submitted that as the Sustainable Totnes Action Group is not a legal

person, the action therefore, never got off the ground properly and that

must be an end to the proceedings. The Appeal Court did not accept that

submission and held that Part 19 of the CPR caters for the problem which

has arisen in such a case, that Ms. Williams is and always has been a

member of the Sustainable Totnes Action Group and ought to have been

named as claimant at the outset. The Appeal Court believed the judge

properly exercised his powers under CPR Part 19 in substituting Ms.

Williams as claimant. Lord Justice Jackson, who gave the decision of the

Court of Appeal, stated at paragraph 31 that “These rules exist to enable

the court to resolve the matters in issue, not to throw up unnecessary

technical obstacles.”

19 [2016] EWCA Civ 419

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106. Consequently, the claimant submitted that based on the foregoing

analysis, the defendants’ submission that based on CPR 21.1 the evidence

of the claimant must (a) demonstrate to the court that five or more

persons have the same or similar interest in the proceedings and (b) that

she is one of those persons, falls flat as being totally irrelevant and

inapplicable to the application before this court.

107. The claimant further submitted that the defendants’ submission

that there are different defences available to the defendants on liability

with respect to the proposed representees, who consequently have a

different, and not similar, interest to the claimant and ought not to be

joined as represented parties is palpably wrong since it is based on a

completely erroneous premise by the defendants that CPR 21.1 is relevant

to the claimant’s representation application.

108. The claimant relied on the case of Millharbour Management v

Weston Homes20 to rebut the defendants’ submission that Counsel’s views

are irrelevant and the statement that the potential representees are

advised by Counsel and verily believe they have a common interest is

nothing more than Counsel’s unfounded statement of opinion. According

to the claimant, in Millharbour Management supra Akenhead J. in his

comprehensive review of the principles governing representative actions

re-emphasized that the question of whether and the extent to which

parties have the same interest is a question of fact (not law) which can only

be answered by reference to the facts of the particular case. The claimant

submitted that if the facts as read by Counsel amounts to a certain position

on the CPR or claim, Counsel has in this jurisdiction been expressing on

affidavit their advice for perhaps more than sixty years.

20 [2011] EWHC 661 (TCC)

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109. The claimant further submitted that the statements by potential

representees is a long-standing principle of practice recognised and

permitted by CPR 31.3(2) which allows deponents to depose to facts not

within their own personal knowledge, but from information and belief,

provided the source of that belief is stated. According to the claimant, that

is precisely what the potential representees have done in their affidavits,

by stating, “The facts deposed herein are true and correct and within my

personal knowledge except where otherwise stated to be based on

information and belief and in which case I verily believe the same to be

true”, and by then stating, “I am also advised by Counsel and verily believe

that I along with the Claimant and the aforesaid persons listed above have

the same and/or similar interest in these proceedings as such

Beneficiaries”.

110. The claimant submitted that the defendants’ submission that there

is no evidence that any proposed representee considered the facts in the

Statement of Case to be true and correct is also wrong. That all affidavits

by the potential representees state (a) the facts deposed herein are true

and correct, (b) I have read the Statement of Case filed herein, (c) I along

with the claimant and the aforesaid persons listed above are beneficiaries

entitled under the various trusts mentioned in the Statement of Case, and

(d) I have consented to these proceedings.

111. The claimant submitted that the fallacy in the defendants’

submission that there is no evidence that any proposed representees

considered the facts in the Statement of Case to be true and correct is

further highlighted from a close reading of CPR 21.4 itself. That the rule

permits the court to make representation orders in proceedings such as

these, concerning property subject to a trust and also where

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representation is required for person or persons who are unborn, cannot

be found or cannot be ascertained. Accordingly, the claimant questioned

how could evidence that any proposed representee considered the facts

in the Statement of Case to be true and correct be forthcoming where such

a proposed representee is unborn, cannot be found or cannot be

ascertained. As such, the claimant submitted that the defendants’

submission that there should be evidence that the proposed representees

considered the facts in the Statement of Case to be true and correct cannot

fit into the CPR under which the claimant’s application is made.

112. The claimant relied on Atkin's Court Forms/Pensions (Volume 31

(1) Atkin's Court Forms/Pensions (Volume 31 (1))/Practice/B: The High

Court: Applications Under The CPR Part 8 Procedure/2, Generally, 2018

Lexis/Nexis Version at paragraphs 103 and 104 wherein it is stated that a

person may be represented without obtaining his consent, even where he

can be found and his opinion sought and neither is there an absolute bar

on the court making a representation order because the person to be

represented objects. The claimant submitted that the aforementioned

makes perfect sense since, as Atkins emphasizes that the flexible use of

representation orders is effective in reducing expense by limiting the

number of parties and their legal representatives. That that is particularly

so with pension schemes established under a trust which have large

numbers of members.

113. The claimant submitted that she and those she represents are

entitled to the benefit of the stock split and that alone sets out a similar

position. That when the various entitlements of the stock split were

proclaimed, the claimant and those she represents were entitled to same.

The claimant further submitted that it may not be identical but they all

belong to the same group. That any purported closure or winding up of the

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plan would affect each person the same in that they would no longer be a

member of the plan as at a particular date. Consequently, the claimant

submitted that this case is clearly within CPR 21.4.

114. The claimant submitted that it is her case and those that she

represents that when they resigned from employment with the

defendants between the years 1999 and 2009, the defendants failed to

pay them their full entitlement due to them at the date of resignation.

According to the claimant, she and those that she represents have all

consistently maintained that their outstanding entitlements remained in

the ESOP II plan since the date of resignation and have been augmented

by the defendants with the stock split from June 1999, the Rights Issues in

1994 and 1998, the Bonus Issue in 1996 in conjunction with the special

conversion of ESOP units to RBTT shares in June or July, 2004 and the final

conversion of RBTT shares to RBC shares in June or July, 2008.

115. The claimant submitted that a fundamental error in the

defendants’ submissions is that the defendants posit that by departure

from the plan, whenever that took place, the claimant and those she

represents, ceased to be members and are therefore unable to claim

outstanding unpaid entitlements. According to the claimant, as per the

decision in Deborah Yasmin Braithwaite supra at paragraph 61, it was she

and those she represents who were the people the court referred to when

it found that “there were still persons who were entitled to benefits under

the plan” as they were the ones who were not paid their full entitlements

upon departure from employment with the defendants and their

entitlements remained in the plan. The claimant submitted that the

evidence of the witnesses as given in Deborah Yasmin Braithwaite supra

is a matter of record and that there is nothing preventing the claimant

from considering that evidence in this case.

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The defendants’ submissions in reply

116. The defendants submitted that at paragraph 3 of the claimant’s

application the following is set out;

“The claimant and those she represents have a common interest in the

ESOP and the Staff Retirement Bonus Place as former employees of the

defendants and as beneficiaries entitled under the various trusts to

retirement benefits due to them and unpaid and the nature of this common

interest is the same even if individual values vary.”

117. As such, the defendant submitted that there was no circumstances

set out for a court to make a CPR 21.4(2) representative order, namely (i)

that the class or some member of it cannot be readily ascertained or found

or (ii) that it is otherwise expedient to make the order sought.

118. According to the defendant, Rule 21.2(3) which applies to all

applications for a representative order require that any application for

such an order must be supported by evidence. The defendants submitted

in support of the notice, the proposed representees filed affidavits in

which each deponent stated as follows at paragraph 6;

“I am also advised by Counsel and verily believe that I along with the

Claimant and the aforementioned persons listed above are Beneficiaries

entitled under various trusts mentioned in the Statement of Case and that

we all have the same and/or similar interest in these proceedings as such

Beneficiaries.”

119. As such, the defendants submitted that it was therefore clear that

to the extent that the notice is a Rule 21.4(3) application, the claimant was

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stating that it is expedient for the court to make a representative order

because she and those who she seeks to represent have the same or

similar interest in the proceedings. According to the defendants, no other

grounds which might support a claim of expediency were identified.

120. The defendants submitted that it follows that whether the notice

falls to be considered under Rule 21.1 or Rule 21.4, it was essential to the

claimant’s case as confirmed by the ground of the notice and the

statements in the supporting affidavits that she and the proposed

representees have a common or the same or similar interest in the

proceedings. Accordingly, the defendants submitted that its submissions

and authorities are entirely relevant.

121. The defendants submitted that the case of Williams v Devon

County Council supra does not assist the claimant in any way. That Part 21

of the CPR enables the court to resolve matters in dispute between

persons who may properly be the subject of a representative order.

According to the defendants, since the claimant and the proposed

representees do not have the same or similar interest in the proceedings

(and that was the only ground relied upon by the claimant) there is no

justification for including them as a class and no basis for invoking the rule.

The defendants submitted that simply put it would not be possible to make

an order for or against the claimant which would bind proposed

representees who are different circumstanced with different interests and

subject to different defences.

122. According to the defendants, the notice is an application for the

appointment of the claimant as a representative of the nineteen persons

named in the schedule attached to that Statement of Case. The defendants

submitted that if and to the extent (because it is not clear) the claimant is

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asking the court to consider the notice as an application for a

representative order with respect to a class inclusive of persons other than

the nineteen identified proposed representees, then the court should

reject that request for the following reasons;

i. The express terms of the notice cannot justify the request;

ii. The defendants have not been afforded the opportunity of

submitting evidence or addressing the court on what would

effectively be an expanded application without notice and;

iii. The class referred to in the claimant’s submissions was not defined

adequately or at all.

Findings

123. It must be noted that the evidence before this court both of the

applicant and the defendants is that each potential representee would

have exercised their entitlement to resign and are not persons who would

have retired having attained retirement age. Inter alia, the substantive

issues for determination of this claim are as therefore as follows;

i) Whether the rights of a member under the plan necessarily

crystalizes on early resignation.

ii) Whether continued/new rights in the plan can be obtained

by such a person.

iii) Whether persons who resigned from the employ of the

defendants and received payment for their units in the plan

prior to June 1999 (the date of the stock split), and after the

June, 2004 and July 2008, events are all to be treated as

having exited the plan before those events.

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iv) If such rights can accrue after early resignation then what is

the entitlement of such person having regard to the events

that occurred on June 1999, June 2004 and June 2008 and

the individual circumstance of each potential representee.

124. In that regard there are several subsidiary issues that will have to

be decided, both factual and otherwise.

125. The court is of the view that the application is a rather

straightforward one which falls squarely to be considered under Part 21.4

CPR in that the court may appoint any person to represent any person or

class of persons who is interested in or affected by proceedings where it is

expedient to do so. In this case, the issues set out above are issues in

respect of which on the evidence before it, several potential representees

may be affected. Those persons hold a clear interest in the outcome of

these proceedings. In that regard, it is pellucid that while each potential

representee’s claim may have its own unique features, as a group, the

outcome of the determination of the substantive issues will affect all of

them in so far as their monetary entitlement under the plan is concerned.

There is therefore much force in the submissions of the claimant on the

application in relation to several of them.

126. The main arguments of the defendants in opposition to the

claimant’s application were as follows;

i. the application lacks the necessary evidential foundation to satisfy

the requirements of Part 21 of the CPR;

ii. the persons that the claimant proposes to represent are differently

circumstanced from the claimant in material respects and

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therefore they do not have the same or similar interest to the

claimant in the proceedings; and

iii. the persons that the claimant proposes to represent are among

themselves differently circumstanced in material respects and

therefore do not have the same or similar interests to each other

in the proceedings.

127. According to the defendants, based on CPR 21.1, the evidence of

the claimant must demonstrate to the court 1) that five or more persons

have the same or similar interest in the proceedings; and 2) that the

claimant is one of those persons. The defendants submitted that there

were no primary or secondary facts adduced by the claimant or the

proposed representees which allow the court to determine the existence

of the same or similar interest in the proceedings among them all. That

the mere fact of employment by the defendants and membership in a plan,

without more, did not establish the proposed representees to have the

same or similar interest in the proceedings as the claimant. The defendant

further submitted that if one examines the pleaded case of the claimant as

against the un-contradicted evidence adduced by the defendants, it is

plain that the claimant does not, on her pleaded case, have the same or

similar interest in the proceedings as the persons she has sought to

represent.

128. Firstly, the court finds that Rule 21.1 of the CPR has no application

to this matter. Although a ground for the claimant’s application was that

she and those she represents have a common interest in the ESOP and

ESOP II as former employees of the defendants and as beneficiaries

entitled under the various trusts to retirement benefits due to them and

unpaid and the nature of that common interest is the same even if

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individual values vary, the claimant has clearly demonstrated that the

application is based on Rule 21.4. Further, Rule 21.1 specifically states that

its requirements, including its particular requirements for same or similar

interests, do not apply to Rule 21.4.

129. The court therefore agrees with the submissions of the claimant

that Rule 21.4 is wider than Rule 21.1. That Rule 21.4 contemplates the

court ordering person/s to represent other persons who are or may be

affected by the proceedings concerning property subject to a trust and

does not specify, unlike Rule 21.1, a requirement that the persons to be

represented must have the same or similar interests. Therefore, the

claimant did not have to demonstrate to this court that five or more

persons have the same or similar interest in these proceedings and that

she is one of those persons. Consequently, the evidence contained in the

Herai Affidavit, showing that the claimant and those she represents do not

have similar interests, are differently circumstanced and thereby require

different defences, was entirely immaterial to the claim in any event.

130. As such, the court finds that the case of Emerald Supplies supra

does not apply to the present case as that case was concerned with the

requirements of Civil Procedure Rule 19.6 which is the English equivalent

of CPR 21.1 which has no application to these proceedings. Further, the

case of Haig Community United supra was equally inapplicable as that

case dealt with an application made pursuant to Rules 21.1 and 21.2 of the

CPR.

131. Secondly, the court finds that the defendants’ submission that

there are different defences available to them on liability with respect to

the proposed representees, who consequently have a different, and not

similar interest to the claimant and ought not to be joined as represented

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parties is unsustainable since it is based on the premise that Rule 21.1 is

relevant to the claimant’s representation application.

132. Thirdly, the court finds that the case of Eugene Lopez supra is

applicable to the instant case since Order 15 Rule 13 is almost in identical

terms with Rule 21.4 of the CPR. As such, the court finds that the possibility

that the decision of this court in these proceedings may ultimately result

in the claimant and the potential representees being held to have different

entitlements, does not necessarily make representative proceedings

inappropriate. The court further finds that the claimant, and the potential

representees have a common underlying connection with the issues in

these proceedings, all being former employees of the defendants who

resigned between 1999 and 2009, they were/are members of the ESOP II

Plan, they all claim to have outstanding entitlements owed to them arising

from their membership to the ESOP II plan and those entitlements are

claimed in these proceedings.

133. Fourthly, the court finds that in these proceedings, the evidence is

that all potential representees have elected to be represented by the

claimant and there is no evidence of any dissent. As such, the court will

order that the claimant be appointed a representative Claimant to

represent the persons named in the schedule attached to the Statement

of Case.

134. The costs of the application shall be assessed by a Registrar and

paid by the unsuccessful party to the claim to the successful party.

Ricky Rahim

Judge

the republic of trinidad and tobago in the high court...

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