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The Castries Constituency Council -v- Lambert Nelson SLUHCVAP 2014/0016

February 2016 FraudInterim PaymentCivil Procedure Rules

BRITISH VIRGIN ISLANDS

COURT OF APPEAL

INTERLOCUTORY APPEAL – EXERCISE OF JUDGE’S DISCRETION – WHETHER DISCRETION PROPERLY EXERCISED – ORDER FOR INTERIM PAYMENT – RULE 17.6(1) OF THE CIVIL PROCEDURE RULES, 2000 (“CPR”) – WHETHER CLAIMANT ADMITTED LIABILITY – WHETHER JUDGMENT WOULD BE OBTAINED AGAINST CLAIMANT

This was an Appeal by the Castries Constituency Council (the “Council”) against the decision of the Court below ordering it to make an interim payment to the Respondent and its findings of fraud against the Council. The Respondent was a various time employed in the public service and eventually took up a permanent position with the Council. The dispute between the Council and the Respondent essentially revolves around the former’s decision not to add his tenure in public service to his period of employment for the purpose the computation of his retirement benefits.

In allowing the Appeal the Court of Appeal applying Ecedro Thomas -v- Augustine Stoutt et al BVIHCVAP1993/0001, held that an allegation of fraud must be specifically pleaded and particularised and, that the mere averment of fraud in general terms was not sufficient and that in order to satisfactorily plead fraud, the Claimant must be able to identify specific facts and conduct supporting the Application. The Court held that fraud had not been pleaded nor asserted and it was therefore not open to the Judge to make a finding in relation to such.

 

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