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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2016-02941

BETWEEN

AZIM ISHMAEL

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Before Master Pierre

Appearances:

Claimant: Mr. Anand Ramlogan S.C. led by Mr. A. Pariagsingh instructed by Mr. G. Saroop

Defendant: Ms. J. Baptiste-Mohammed instructed by Mr. S. Julien

Date: 24 May, 2019

JUDGMENT

1. This was the claimant/landlord’s assessment of damages for breach of contract for non-

payment of rent by the Ministry of Education. The defendant was sued pursuant to the

State Liability and Proceedings Act Chapter 8:02.

2. There were six matters in issue on this assessment:

i. whether it was open to the defendant to dispute the quantum of rental to be

paid at the assessment of damages;

ii. the preliminary issue to strike out certain aspects of the defendant’s evidence;

iii. If the defendant could raise the issue of the quantum of rental, what was the

appropriate quantum of rental to be used in assessing the claimant’s loss;

iv. when did the Ministry of Education deliver up vacant possession;

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v. whether the claimant established a nexus between the defendant’s breach and

his claim for loss of profits; and

vi. what was an appropriate rate of interest to be awarded on any award of

damages?

3. The court made the following findings-

i. the quantum of rental to be paid could be raised at the damages hearing as

this issue was not inconsistent with the judgment on liability;

ii. the application to strike out was refused as in any event this court could only

deal with issues of quantum;

iii. the appropriate quantum of rental to be used was the sum of $54,000.00.

iv. the Ministry of Education gave up vacant possession on 12th September, 2014

when the keys to the property were eventually returned to the claimant;

v. the claimant did not show that his loss of use flowed from the defendant’s

breach; and

vi. discretionary interest should be awarded at the rate of 2.5% per annum.

Whether it was open to the defendant to dispute the quantum of rental to be paid at the

assessment of damages

4. The claimant submitted that it was not open to this court to make findings of fact as to

the quantum of rental to be paid as same had been settled by the judgment of Gobin J

at the liability stage. The claimant also submitted that the only issues for determination

before this court were that of the date of vacant possession and the claim for loss of

profits/loss of use. The defendant submitted that the issue of quantum remained a live

issue before this court.

5. By his pleadings, the claimant alleged that he entered into a contract with the defendant

to lease his premises, that the defendant breached that contract by non-payment of

rent and that the defendant was liable for the claimant’s losses set out as follows:

i. Damages for breach of contract and consequential loss including general

damages for pain and suffering, loss of amenities and loss of income;

ii. Special damages in the sum of $2,655,000.00; and

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iii. Interest on general damages at the rate of 9% and on special damages at the

rate of 6%.

6. The claimant set out his particulars of special damages thus:

No. Item Period Amount

1 Payment of rent for the said property (per initial agreement)

June 2012 – April 2013 (11 months) @ $99,000.00 per month

$1,089,000.00

2 Payment for rent for the said property (post valuation report)

May 2013 – September 2014 (17 months) @ $54,000.00 per month

$918,000.00

3 Loss of use of the said property as a result of not being released by the Ministry of Education

July 2014 – June 2015 (12 months) @ $54,000.00 per month

$648,000.00

TOTAL AMOUNT

DUE AND OWING

$2,655,000.00

7. There was no hearing on the merits at the liability stage. Gobin J heard two applications

together, namely, the claimant’s, in which he asked that permission be granted to him

to apply for judgment in default of defence against the defendant and the defendant’s

in which it sought an order to extend the time for the filing and service of its defence.

8. On the hearing of both applications, the Court ordered inter alia, that1:

i. the defendant’s application to extend the time to file a defence on liability is

refused;

ii. the defendant is granted an extension of time to file a defence on quantum on

or before 2nd March, 2017;

1 The order of Gobin J dated 6 February, 2017.

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iii. judgment for the claimant against the defendant for damages for breach of

contract and2 consequential loss including general damages for loss of

amenities and loss of income; and

iv. damages to be assessed by a Master in chambers on a date to be fixed by the

Registrar.

9. By its defence filed pursuant to the Judge’s order, the defendant put into issue the

quantum of the rental as well as the period for which rental was payable.

10. A default judgment on liability does not relieve the claimant of his evidential burden to

prove his damages at the assessment stage. In Lunnun v. Singh et. Ors.3 a case which

dealt with an over-the-counter default judgment on a negligence claim, the court held

that,

‘…it is…inherent in the default judgment that the defendants must be liable for

some damage, resulting therefrom. But that, in my judgment, is the full extent of

the issues which were concluded or settled by the default judgment. It follows, in

my judgment, that in the instant case all questions going to quantification,

including the question of causation in relation to the particular heads of loss

claimed by the claimant, remain open to the defendants at the damages hearing.’4

11. The case of Maes Finance Limited and another v A.L. Phillips & Co. (a Firm)5 also held

that on an assessment, the issue of whether the defendant’s breach caused the

particular loss being claimed by the claimant remained a live issue. In that case, an order

was made by consent giving the plaintiff-lenders judgment ‘for damages for negligence

and breach of contract with damages to be assessed’. The issue was whether the issue

of contributory negligence could be raised for the first time on an assessment of

damages, liability having already been established. The court held that while the

defendant could not contend that its acts or omissions were not causative of any loss

2 The minute sheet says ‘on’ consequential loss but this must be a typographical error 3 All England Official Transcripts [1999] Lexis Citation 2979 4 Per Johnathan Parker J at p. 8. 5 The Times Law Reports March 25, 1997.

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to the plaintiff, it might still be able to argue on the assessment that they were not

causative of particular items of the alleged loss. Notwithstanding that Lunnun and Maes

were cases in negligence, I think the learning was of some application here.

12. The governing principle as to what matters are settled on a default judgment was

succinctly stated in Kok Hoong v. Leong Cheong Kweng Mines Ltd,6

‘…default judgments, though capable of giving rise to estoppels, must always be

scrutinised with extreme particularity for the purpose of ascertaining the bare

essence of what they must necessarily have decided and, to use the word of Lord

Maugham LC (in New Brunswick Railway Co v. British & French Trust Corporation

Ltd. [1939] AC 1,21), they can estop only for what must ‘necessarily and with

complete precision have been thereby determined.’

Lunnun supra held that any issue which is inconsistent with such (default) judgment on

liability cannot be raised on the damages hearing.

13. Notably, notwithstanding that the claimant’s claim was for a specified sum and an

unspecified sum, in giving judgment, the Court did not give the claimant judgment in

terms of the specified sum and refer the quantification of consequential loss only to the

Master. Further, in giving the defendant permission to file a defence on quantum, the

court did not limit such defence on quantum to consequential loss only. I think the

court, not having entered judgment in terms of the liquidated sum, referred the issue

of the quantum of damages as a whole to the Master. Where the breach of contract, as

in this case, was the failure to pay rent, for which the normal measure of damages is

the rental which ought to have been paid, quantum can refer to the rental payable as

well as any consequential loss which flowed from the breach.

14. It also seemed to me that by giving judgment for breach of contract, the ‘bare essence’

of what that judgment must be taken to have decided is that there was a valid contract

between the parties, that the defendant had breached that contract and it was liable

6 [1964] AC 993.

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for the claimant’s losses flowing from that breach. It would mean that the defendant

was estopped from raising at the assessment that there was no contract or that it was

not in breach of the contract as these defences would be inconsistent with the judgment

on liability. However, nothing prevented the defendant from raising the issue of the

quantum of the rental under the contract, as a finding of fact as to this was not

necessary to complete the claimant’s cause of action. Parties may concede that a valid

contract subsisted between them and yet dispute particular terms of the contract.

15. I was therefore of the view that the default judgment on liability was conclusive on

these three issues:

i. there was a valid contract between the parties,

ii. the defendant breached that contract,

iii. the defendant was liable for the claimant’s loss as proven which flowed from

that breach, and including any consequential loss.

16. In those circumstances, I found that it was open to the defendant to raise the issue of

the quantum of rental at the assessment.

The Preliminary Issue

17. On the morning of the trial on quantum, the claimant took a preliminary point that this

court had no jurisdiction to admit into evidence certain paragraphs of the defendant’s

witness statements as the matters contained therein went to liability and not quantum.

The defendant objected on the ground that the claimant was in effect seeking to make

evidential objections out of time.

18. The court refused the claimant’s application on the bases that the objection ought to

have been raised prior to the date of trial but more importantly, at the end of the day,

the court’s exercise was limited by the order of Gobin J. The court curtailed any

attempts by the defendant in cross-examination to raise matters about the validity of

the contract.

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THE EVIDENCE7

The Claimant’s Evidence

19. In February, 2012, the claimant-landlord met with a technical team of the Ministry of

Education with a view to ascertaining the suitability of his building for rental. Pursuant

to discussions with the technical team, the claimant advised that the rental would be

$86,000.00 per month. In March 2012, he revised this monthly figure to $99,000.00 to

take into account customisation works he intended to undertake to satisfy specific

requests of the Ministry’s team. The claimant said the technical team agreed to both

the initial rental figure as well as the revised rental figure. In June 2012, he handed over

the keys to the property to representatives of the Ministry of Education. The date of

occupation of 1 June, 2012 was not in dispute.

20. On or around 9 July, 2012 the defendant formally wrote the claimant advising that,

‘While the Property and Real Estate Services Division (P&RESD) is currently

pursuing the lease/rental of this building, I would like to take this opportunity to

remind that neither the P&RESD, nor any other Government Ministry/Department

is able to make any commitment regarding the rental of the subject property, since

it is Cabinet which grants approval for the lease/rental of a building to

accommodate a Ministry/Department’.

21. In September, 2012, the claimant commissioned a valuation report which gave a

monthly rental value of $65,000.00. He submitted this report to P&RESD. Under cross-

examination, he said he commissioned this report to show his wife that he had made a

good bargain by procuring a rental rate of $99,000.00. In December 2012 a valuation

7 At the hearing on damages, the claimant indicated that it would pursue only the items set out in its particulars

of special damages. The defendant indicated that it accepted the loss at paragraph 2 of the particulars, save that

the date of vacant possession should be June, 2014 and not September, 2014, and disputed the quantification

at 1 and 3 of the particulars of special damage.

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report done by the Ministry of Finance, Valuation Department valued the monthly

rental at $54,000.00 and was submitted to the claimant. The claimant testified that

although the report was completed in December, 2012, he only received the report

eleven months after occupation by the defendant. The claimant stated that at all

material times prior to the submission of the valuation report, ‘…the Ministry and I

agreed that the rental value of the said property was $99,000.00 per month.’

22. In or around April, 2013, P&RESD, wrote the claimant stating, ‘kindly advise this division

whether you are willing to accept a monthly rental in the sum of $54,000 plus VAT …for

a period of three years with effect from the date of occupation’. It further stated, ‘…We

look forward to your agreement on the above. The claimant did not say in his evidence

whether he responded to this letter.

23. The claimant ‘s evidence was that ‘following the submission of the valuation report,

[P&RESD] and I negotiated the rental value of the said property and it was agreed that

I would accept a monthly rent of $54,000.00 per month from the date of the valuation

report. It was also agreed that the rental value of $99,000.00 would remain for the 11

months prior to the valuation report.’

24. By letter dated 21st May, 2014, addressed to the claimant, the Ministry of Education

advised as follows:

‘Reference is made to the occupation by the Ministry of Education of the property

situated at No. 404 Southern Main Road, La Romaine.

Due to administrative changes, the Ministry of Education is no longer interested in

the lease/rental of the subject property.

In this regard, please be advised that the Ministry intends to vacate the subject

property by May 31, 2014 and the keys will be handed over to your agent Mt. [sic]

Roger Ishmael on or before this date.

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You are asked to note that the permission of the Cabinet is currently being sought

for the payment of the rent for the subject premises for the period Jun 1, 2012 to

May 31, 2014.

Any inconvenience caused is regretted.’

25. The claimant stated that following several months of correspondence, the Planning

Division of the Ministry of Education recommended that he should be paid rent at the

rate of $54,000.00 from date of occupation, June, 2012 to February, 2014 or until the

keys were returned to him and the Ministry’s property removed from the building. In

July, 2014, the Ministry removed its property from the claimant’s building. In

September, 2014, the Ministry returned the keys to the claimant. No rental was ever

paid by the defendant to the claimant.

26. In June, 2015, the claimant travelled from Boston, where he ordinarily resided, to the

Island of Trinidad and advised the Permanent Secretary of the Ministry of Education

that the Ministry of Health had been interested in renting the said property since July,

2014 and the Ministry of Health could not occupy the said property since the Ministry

of Housing did not receive a letter of release from the Ministry of Education. He made

several requests to the Permanent Secretary but these requests were continually

ignored or unanswered.

27. On or around June 8, 2015, the letter of release was sent from the Ministry of Education

to the Ministry of Housing in the following terms:

‘Reference is made to the above captioned property. In this regard I wish to advise

that the Ministry of Education has no objection to the Ministry of Housing entering

into a lease agreement with Mr. Azim Ishmael’.

The letter was copied to the claimant. The claimant testified that as a result of, ‘the

Ministry of Education’s bureaucracy I lost 12 months’ rent from the Ministry of Health.’

The property has been occupied and rented by the Ministry of Health since September,

2015.

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The Defendant’s Evidence

28. Mr. Vishan Maharaj, senior property and real estate officer of P&RESD gave evidence

for the defendant. By internal memorandum from Ministry of Education to PRESD,

dated 16 May, 2012, a request was made to lease the subject property. He stated that

by letter dated 9 August, 2012, the Ministry of Housing wrote the claimant stating,

‘kindly advise this division whether you are willing to accept a monthly rental in the sum

of $44,529.50 plus [VAT] …for a period of three years with effect from the date of

occupation.’ He said the claimant refused the offer.

29. In or around September 2012, the claimant submitted his [own] valuation dated 24

September, 2012, which was received on 22 November, 2012 by P&RESD. On 11 April,

2013 the Commissioner of Valuations wrote P&RESD advising that a fair estimate of the

open market rental value is the sum of $54,000.00 per month. On 18 April, 2013 P&RESD

wrote the claimant offering a monthly rental of $54,000.00 from date of occupation for

a period of three years. Following negotiations between the claimant and P&RESD the

claimant indicated his agreement to the monthly rental of $54,000.00 by letter dated

19 April, 2013 as follows:

‘Dear Mr. Maharaj,

Re: Acceptance of monthly rental

I am pleased to inform you that I have chosen to accept your proposed offer for

the sum of $54,000 per month for rental of the property located at 357 Southern

Main Road, La Romain per your letter dated 4/18/2013 from the office of P&RESD,

Ministry of Housing.

I also agree to the terms and agreement of the offer which is subject to. The VAT

Certificate will be provided to your office next week. I will agree to await the

remaining approvals as stated in your letter.

Look forward to working with you to finalize this agreement and feel free to call

me at… if any additional questions, clarifications or information is needed.’

30. By e-mail dated 9 June, 2014 P&RESD wrote the claimant as follows:

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‘Dear Mr. Ishmael,

Reference is made to our conversation this afternoon.

This Division offered your property to other Ministries and we have not received a

response to date.

We will follow up with the relevant agencies and update accordingly.’

31. By e-mail dated 17 July, 2014 the claimant wrote P&RESD confirming that he showed

the property and discussed viable options for occupation of the property and that the

team confirmed that the property was suitable for the Ministry of Health. He further

stated-

‘You and your team toured the interior and exterior, took photos, make [sic] some

observations and made a few requests or observations:

a) Additional 5 ton A/C units (2) may be needed in the identified open spaces for

ground floor and 1st floor. This will facilitate the cooling of the spaces due the

amount of persons that will stationed [sic] in these spaces and building. (60

plus);

b) Storage facility for the storage of chemicals used by employees for their daily

work routine. The storage facility discussed is a custom built pre-fabrication

container unit for the storage of chemicals to be located at the furthest end

of the rear parking lot. This unit will require power for lighting, fans and

outlets;

c) The Min of Health (Mr Bailey & team) discussed utilizing the entire rear

parking lot for employees [sic] vehicles, Min of Health trucks used for spraying

and also custom built unit.

As per Real Estate and Property Dept. I will not make any upgrades or perform any

work until I receive proper approval and direction from Property and Real estate

Dept. I will also like to discuss the requests made and the approach by Property

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and Real Estate as how is the best way to get this work done once approval is

received and how all related costs will be handled.

I am returning to Boston next Thursday and would like to get as much done as

possible prior to leaving in terms of signatures, approvals, letter of interest or any

necessary documents for review. I understand there is a process with Property and

Real Estate department but any expediting on your part such as letter/email to

Property stating your interest in occupying the space in an expeditious manner

would be greatly appreciated.’

32. By memorandum dated 30 July, 2014, from Ministry of Health to P&RESD, the Ministry

of Health advised that following the site visit, it was interested in renting the property

with effect from the date of Cabinet approval. On 4 August 2015, the Ministry of Health

wrote P&RESD advising that the Minister of Health had no objection to the Cabinet note

for the proposed lease/rental of the subject property for a period of three years from

date of occupation. Under cross-examination Mr. Maharaj could not provide a reason

for the issuance of the letter of non-objection and was unfamiliar with this procedural

step.

33. Ms. Pearl Belton, administrative officer IV also gave evidence for the defendant. She

testified that she delivered the keys to the claimant on 12 September, 2014 which was

accepted and signed for by the claimant.

ANALYSIS

What was the appropriate quantum of rental to be used in assessing the claimant’s loss?

34. The claimant stated that at all material times it was agreed between the parties that the

sum of $99,000.00 would be applied to the rental from date of occupation. He failed,

however, to disclose in his evidence that approximately two months after the defendant

entered into occupation, that is, in August, 2012, it made him an offer to pay rental at

$44,529.50, from the date of occupation and that he refused this offer. This offer made

no reference to any previous agreement between the parties to pay $99,000.00. It also,

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on the face of it, contradicted the claimant’s evidence that the rental of $99,000.00 had

been agreed between the parties. Additionally, the claimant’s omission to include this

in his evidence suggested that it did not serve his purpose so to do.

35. In September, 2012 the claimant commissioned a valuation. He said he commissioned

the valuation for his personal use to show his wife that he had procured a favourable

rental for the property. This valuation was submitted to P&RESD. He did not suggest

that his submission was in response to a request by the Ministry. In fact, he offered no

explanation as to why he thought it necessary to submit this valuation to P&RESD.

36. First, why would the claimant submit a valuation to P&RESD which valued the rental at

$65,000.00, a figure which was much lower than the rental figure of $99,000.00 which

he said had been agreed at all times between the parties? This could not have served

his purpose. Second, given the timing of the commissioning, which followed on the

heels of P&RESD’s valuation in the previous month, it was more probable that it was an

attempt to arm himself with a counteroffer. His valuation, coming in as it did at a higher

figure than the defendant’s, could show P&RESD that the property could fetch a rental

of $65,000.00 rather than the $44,529.50 which had been offered by P&RESD and

refused by him.

37. The negotiations with P&RESD and the issuance of the letters in April 20138 were very

close in time. The claimant’s evidence was that in December 2012 a valuation report

done by the Ministry of Finance, Valuation Department valued the monthly rental at

$54,000.00 and was submitted to him eleven months after occupation by the

defendant. The date of occupation was 1 June 2012 so that took us to April, 2013. It

would therefore mean that negotiations between the parties and the issuance of the

two letters all took place in close sequence.

38. I found it passing strange that if, as he said, the claimant negotiated with the defendant

and the defendant agreed to apply the rental of $99,000.00 from the date of

occupation, why would the ministry’s letter of offer to him in the same month, be silent

8 The defendant’s letter offering $54,000 and the claimant’s letter accepting the $54,000.

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on this as negotiations would have been fresh in their minds. There was absolutely no

reference to an agreement to pay $99,000.00.

39. Additionally, why, in the face of recently concluded negotiations would the Ministry still

issue a letter indicating that the sum of $54,000.00 was to be applied from date of

occupation if something else had been agreed between the parties. If the negotiations

took place after the claimant received the letter of offer in April, 2013, why was his

response unqualified. He accepted the full terms offered by the defendant. He, in whose

interest it would have been to underscore that it was $99,000.00 and not $54,000.00 to

be applied from date of occupation, was himself silent on the issue.

40. There was also the failure on the claimant’s part to disclose in his evidence that he in

fact issued this unqualified letter of acceptance. While the claimant acknowledged that

he received the defendant’s letter of 18 April, 2013, nowhere in his evidence did he

disclose that he responded in writing to that letter the following day. His response was

dated 19 April, 2013 and it was an unqualified acceptance of the defendant’s terms

which specifically stated that the rental of $54,000.00 was with effect from the date of

occupation.

41. The fact that the claimant actually issued an unqualified acceptance, in writing, of the

defendant’s offer of rental at the sum of $54,000.00, from the date of occupation is only

discovered from the evidence of the defendant’s witness.

42. In addition, given that the Ministry continually communicated with the claimant in

writing why did he not reduce into writing any negotiations and agreements confirming

his position and produce them to this court? He said there were many electronic mail

exchanges between the parties reflecting the agreement to pay $99,000.00 from the

date of occupation but produced none of them in these proceedings. There was no

reference in any of the written communications between the parties to the agreement

to pay rental at the rate of $99,000.00 per month, notwithstanding that communication

on the issue between the parties had been ongoing for over a year.

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43. Counsel for the claimant submitted that the internal memorandum of May, 2012 from

the Ministry of Education to P&RESD in which the former requested the lease of the

building must mean that the rental value had already been determined by the parties

by that date. It does not necessarily follow that the rental had been agreed; given all

that transpired, it seemed to have been nothing more than a request for permission to

lease the property.

44. The claimant failed to disclose matters which were material to the issue before the

court; he did not satisfactorily reconcile written communication between himself and

the defendant with his assertion that something else had been agreed between the

parties; he did not successfully rebut his written signed acceptance of the rental of

$54,000.00 from date of occupation. I found that the rental which should be applied

from the date the defendant entered into occupation to the date of valuation was the

sum of $54,000.00 per month9.

When did the Ministry of Education deliver up vacant possession?

45. The defendant’s witness corroborated the claimant’s assertion that, while the

defendant removed furniture from the premises in the month of July, 2014, keys were

not returned until September, 2014. The defendant had undertaken to return keys by

May, 2014 but this was not effected until September, 2014 and I therefore accepted

this as the date when the defendant surrendered absolute possession to the claimant.

The period for which rental was payable was therefore from the date of occupation

which was 1st June, 2012 (which was not in dispute) to 12th September, 2014, the date

of delivery of vacant possession.

Whether the claimant established a nexus between the defendant’s breach and his claim

for loss of profit?

46. The claimant claimed loss of use from July 2014 to June 2015, due to the defendant’s

‘bureaucracy’10 in failing to issue a letter of release to another of its Ministries which

was interested in renting the property. The letter of release was produced in these

9 It was not disputed that the claimant was not VAT registered at the material time. 10 See paragraph 64 of the claimant’s submissions filed on 3 April, 2019

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proceedings. It was an internal memorandum from one Ministry to another which was

copied to the claimant in which the Ministry of Education advised the Ministry of Health

that it had no objection to the latter’s rental of the property.

47. The claimant had submitted that in the absence of any plausible explanation for the

existence of the letter of non-objection, the court should make a finding of fact that the

claimant was unable to rent the said property until the memorandum was prepared and

make an award for loss of use for the relevant period. I accepted that the defendant did

not provide any explanation or context for the issuance of the letter of non-objection,

however, that took the matter only halfway.

48. The claimant submitted at paragraph 9 of his submissions filed on 3rd April, 2019, that,

’[t]he claimant does not dispute the rental value of $54,000.00 per month from May

2013 to September 2014 (when the Ministry gave up vacant possession of the said

property) save and except that no rent was paid.’ The claimant, having acknowledged

that he received vacant possession in September, 2014, could not then claim for

consequential loss of use based on the fact that the new or prospective tenant could

not take up possession unless and until the Ministry of Education delivered this letter

of release so-called. This was in fact an argument for a constructive holding over or

failing to deliver up absolute vacant possession which the claimant conceded he

received in September, 2014. Furthermore, in order to advance this claim, the claimant

was required to bring sufficient evidence to prove that this document was necessary for

the new tenant to take up occupation which he did not.

49. The evidence adduced by the claimant to buttress his assertion turned on paragraph 30

of his witness statement in which he said,

‘The Ministry of Health could not occupy the said property since the Ministry of

Housing, Property and Real Estate department did not receive a letter of release

from the Ministry of Education’.

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He adduced no other evidence upon which I could make an absolute finding that the

claimant was able to rent his property to the Ministry of Health but for the Ministry of

Education’s failure to issue a letter of non-objection.

50. The claimant claimed loss of use commencing July, 2014, which therefore included a

period during which the Ministry of Education was still in occupation. However, there is

no difference between the rental payable ($54,000.00) and the rental which the

property could have fetched as on the claimant’s evidence the subject property was

rented to the new tenant at a rental of $54,000.00 per month.

51. The claimant submitted that the court’s task was to decide what loss was reasonable to

suppose would have been in the contemplation of the parties as a serious possibility

had they had in mind the breach when they made the contract. Chitty on Contracts (33rd

edition), however, has stated that a causal link between the breach and the

consequential loss must first be determined positively before any question of

remoteness of damage can arise. At para 26-066, the editors say:

‘Although the issue in remoteness – whether a particular loss was within the

reasonable contemplation of the parties – tends to be the prominent one in cases

of liability for damage in the law of contract, before any issue of remoteness can

arise causation must first be proved: there must be a causal connection between

the defendant’s breach of contract and the claimant’s loss. The claimant may

recover damages for loss only where the breach of contract was the ‘effective’ or

‘dominant’ cause of that loss. The courts have avoided laying down any formal

tests for causation: They have relied on common sense to guide decisions as to

whether a breach of contract is a sufficiently substantial cause of the claimant’s

loss. The answer to whether the breach was the cause of the loss or merely the

occasion for the loss must ‘in the end’ depend on ‘the court’s common sense’ in

interpreting the facts’.[emphasis mine].

I had some difficulty in appreciating the causal link between the actual breach here –

the failure to pay rent for the period of occupation – and the subsequent claim for loss

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of use/loss of rental income. The claimant did not argue that the issuing of this letter

was somehow an implied term under the contract which the Ministry of Education

breached nor that the claim included one for the remaining period of the 3-year lease

(which had been subject to Cabinet approval), so mitigation of damages did not arise in

that context. I do not think that the claimant established a nexus between the Ministry

of Education’s failure to pay rent under the contract and the claim for loss of use.

52. The claimant did not prove that his loss of use flowed from the Ministry’s breach for

non- payment of rent.

What was an appropriate rate of interest to be awarded on any award of damages?

53. In commercial matters, the court may use the prime lending rate where the claimant

demonstrates some kind of loss of investment opportunity.11 The onus was on the

claimant to provide the court with evidence of same or by way of his submissions. It

was not sufficient, as was done here, for the claimant to rely on the interest awarded in

another case, as that court would have awarded interest based on the evidence or

submissions before it and applied the rate which was applicable at that time.

54. In CV 2013-00669 Theodore Lewis v. The University of Trinidad and Tobago, Dean-

Armorer J stated,

‘The second issue concerns the quantum of interest which would be due to the

claimant between his termination and the date of the filing of the claim. This issue

was addressed and settled by the Honourable Chief Justice Archie, who held in

Attorney General v. Fitzroy Brown and others, that the pre-judgment rate of

interest ought to be equivalent to the short term investment rate of two point five

percent (2.5%) at which the judiciary invests funds that are deposited into court.

The learned Chief Justice decreed further that the rate of two point five percent

(2.5%) should be awarded unless the Claimant can demonstrate that he has lost

an investment opportunity. The claimant in these proceedings, has not alleged any

11 See Civ. App 251 of 2012 Attorney General v. Fitzroy Browne

Page 19 of 19

such loss. Accordingly, interest is awarded at the rate of two point five percent

(2.5%).

55. In the circumstances, I awarded interest at the rate of 2.5% per annum.

DISPOSITION

56. The defendant shall pay the claimant the sum of $54,000.00 per month for rental of the

property from the agreed date of occupation, 1 June, 2012 to September 12th 2014, at

the rate of 2.5% per annum from the date of the claim to judgment and costs on a

prescribed costs basis.

Sherlanne Pierre

Master