Police Constable Bertrand Nestor et al v Daran Edwards

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL SAINT LUCIA SLUHCVAP2022/0022 BETWEEN: [1] POLICE CONSTABLE BERTRAND NESTOR [2] THE ATTORNEY GENERAL Appellants and DARAN EDWARDS Respondent Before: The Hon. Mde. Margaret Price-Findlay Justice of Appeal The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.] Appearances: Mr. Seryozha Cenac and Ms. Rochelle John-Charles for the Appellants Ms. Natalie Dabreo for the Respondent _____________________________ 2024: March 13; 2025: February 28. _____________________________ Interlocutory appeal - Appeal against the learned master’s refusal to strike out the claim – Whether the learned master erred in the exercise of his discretion - interpretation and application of Article 28 of the Code of Civil of Procedure Cap 22.08 of the Revised Laws of St. Lucia – Failure to serve Article 28 notice (giving one month’s notice) on public officer before claim is issued - Whether failure to serve Article 28 notice on the public officer is fatal to the claim - Whether notice is required to be served on Attorney General - Whether the learned master failed to have regard to the legal effect of section 13 (2) and section 4(4) of the Crown Proceedings Act of Saint Lucia On 4th August 2020, the respondent filed an amended statement of claim against the appellants alleging that the first appellant, a servant/agent of the Crown had caused him damage and loss. The respondent served the second appellant, with a pre-action notice but failed to serve the first appellant with a pre-action notice as required by Article 28 (“Article 28 Notice”) of the Code of Civil Procedure (“CCP”). As a result on 12th November 2020, the appellants made an oral application to strike out the claim relying on section 4(4) of the Crown Proceedings Act (“CPA”). The oral application was resisted by the respondent, who argued that while the Article 28 Notice was not served on the first appellant, it was served on the Attorney General and that consequently the claim should not be struck out. The learned master contended with two main issues in his judgment delivered on 2nd December 2022. The first issue was whether service of the Article 28 Notice on the Attorney General is sufficient to satisfy Article 28, and the second issue was whether in the circumstances of this case, the Article 28 notice was required to be served on the first appellant. The learned master adopted the reasoning set out in the cases of Bryan James et al v The Attorney General and Danny Allison George v The Attorney General in concluding that the Article 28 Notice having been served on the Attorney General, the claim did not fail. Dissatisfied with the learned master’s decision, the appellants have appealed the order of the learned master on a multiplicity of grounds. Held: allowing the appeal, setting aside the order of the learned master with respect to the first appellant, striking out the claim in the court below as against the first appellant, setting aside the costs order made in the court below against the first appellant and making no order as to costs on the appeal that: 1. The language of Article 28 of the CCP is clear. There is therefore no need to resort to any rules of interpretation outside the natural and ordinary meaning of the words used. Article 28 of the CCP imposes a bar against the institution of a suit in damages, or the entry of any judgment against a public officer or other person fulfilling any public duty or function in respect of any act purported to be done by him in his official capacity unless written notice of such suit has been served on him or her personally at his domicile at least one month before the suit is issued. Article 28 of the CCP lays down the procedure where suits are brought against public officers or individuals who are fulfilling a public duty or function. The provision is imperative in its language, and it clearly affords protection to public officers. The notice must be served upon the public officer or principal tortfeasor personally. The service of this notice on a public officer or a person fulfilling public duties or function is therefore a prerequisite (where he or she is joined as a defendant), essential to the success of legal proceedings against the pubic officer. If it is not given, the claim against that public officer must be rejected, struck out and dismissed, and the court cannot issue any award for damages. Article 28 of the Crown Proceedings Act, Cap 2:05 of the Revised Laws of Saint Lucia applied; Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) applied. 2. Prior to the enactment of the CPA, the Crown remained immune from claims in tort as there was no other procedural vehicle to bring a tort claim against the Crown. However, this is no longer the case. The proviso to section 4(1) makes clear that under the CPA, no right of action exists against the Crown in tort unless the act or omission would, apart from the provisions of the Act, give rise to a cause of action in tort against that servant or agent or his estate in respect of whom it is alleged that vicarious liability arises against the Crown. Sections 4(1) and 13 Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) applied; Conseil des Ports Nationaux v Langelier [1969] S.C.R 60 considered; Section 80 of the India Code of Civil Procedure 1908 considered; Bhagchand Dagadusha Gujrati and others v Secretary of State for India (1927) 43 TLR 617 considered. 3. Section 13(2) of the CPA makes clear that in a suit by or against the Crown, the authority to be named as claimant or defendant is the Attorney General. The Attorney General may well be the principal legal advisor of the Government but under section 13(2) of the CPA, he has been statutorily designated as the nominal defendant when suing the Crown in right of her Majesty’s Government in Saint Lucia. There is therefore no personal or primary liability which attaches the Attorney General. The operating liability here is vicarious and it is attached to the Crown. Sections 13(2) and 30 Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Section 8 Interpretation Act Cap 1.06 of the Revised Laws of Saint Lucia applied; Town Investments Ltd. and another v Department of the Environment [1978] AC 359 considered; M v Home Office [1992] 1 QB 270 considered; Basil Williams v Attorney General of Guyana et al [2013] CCJ (AJ) GY applied. 4. Even where a claim against the officer is struck out not on the merits but for non- service of the Article 28 Notice, it may still be possible to maintain the vicarious liability against the Crown once the pleadings contain reasonable information as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the government department and officer of the Crown involved. Part 59 Civil Procedure Rules (Revised Edition) 2023 applied; Laurence v Salt River Project Agricultural Improvement and Power District 255 Ariz. 95, 528 P.3d 139 considered; Peter Clarke v The Attorney General et al SLUHCV1999/0475 (delivered 19th April 2004, unreported) distinguished; DeGraff v Smith 157 P.2d 342, 62 Ariz. 261 considered. 5. The mere allegation of malice does not deprive a public officer protection under Article 28. A public officer is entitled to notice of suit even if it is alleged that in the discharge of his duty, he has acted with malice and not bona fide. Gordon v The Attorney General for Jamaica [1997] UKPC 21 distinguished; Kirby v Simpson (1854) 156 E.R 482 applied; Samantha Koti Reddi v Pothuri Subbiah and Others 46IND. CAS. 86 considered. 6. Section 4(4) of the CPA essentially states that any legal provision which limits the liability of a government department or Crown officer in relation to a tort will also apply to the Crown when being sued under this section. This means that the Crown is treated as if it were that specific department or officer, in terms of liability limitations for that particular tort. The scheme of Article 28 is procedural in its wording and intent. The framers of Article 28 intended to encourage parties to consider their legal position and make amends or settle if so advised. The object is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. This characterization is not consistent with an enactment which negatives or limits the amount of the liability of an officer of the Crown in respect of any delict or quasi-delict which he or she may have committed. Article 28 protections are therefore not captured by section 4(4) of the CPA. Article 28 of the Code of Civil Procedure, Cap 22.08 of the Revised Laws of Saint Lucia applied; Section 4 (4) of the Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Matthews v Ministry of Defence [2007] 3 All ER 513 applied; Vallayan Chettier v Government of the Province of Madras AIR 1947 PC 197 considered. Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) considered. Section 4(4) of the Crown Proceedings Act, Cap 2.05 of the Revised Laws of Saint Lucia applied. 7. Under section 26 of the CPA, any statutory defence available to a negligent employee of the Crown should equally be available to the Crown when the Crown was sued as vicariously liable for its employee's negligence. Even if the provisions of section 26 could be said to apply in this case, in this appeal the respondent would in fact have served the Article 28 Notice on the Attorney General and so the Crown would have had the full benefit of the privilege afforded by that Article. Section 26 Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Durity v Attorney General of Trinidad and Tobago [2002] UKPC 20 applied. JUDGMENT Introduction

[1]ELLIS JA: In this appeal the appellants (who were the defendants in the court below) seek to challenge the decision of the learned master refusing the appellants’ oral application to strike out the claim form and statement of claim delivered on 2nd December 2022 on the basis of the respondent’s (the Claimant’s below) failure to comply with Article 28 of the Code of Civil Procedure (“CCP”)1.

Background

[2]On 4th August 2020, the respondent filed an amended statement of claim against the appellants pursuant to section 13 of the Crown Proceedings Act (“CPA”)2 alleging that a servant/agent of the Crown had caused him damage and loss. The respondent served the second appellant (the Attorney General) with a pre action notice but failed to serve the first appellant with a pre-action notice as required by Article 28 of the CPP (“Article 28 Notice”). As a result of this failure to observe the statutory requirements of Article 28, the appellants, relying on section 4(4) of the CPA made an oral application to strike out the claim on 12th November 2020.

[3]The oral application was resisted by the respondent, who argued that while notice was not served on the first appellant, it was served on the Attorney General and that this was sufficient for the claim to stand based on section 13(2) of the CPA. He contended further that the servants/agents of the second appellant stripped themselves of the right to notice under Article 28 of the CCP when they deliberately, intentionally and maliciously committed illegal acts against the respondent. Thus, the respondent suggested that the question as to whether these acts are proven can only be determined at trial. The Judgment in the Court Below

[4]The learned master contended with two main issues in his judgment delivered on 2nd December 2022. The first issue was whether service of the Article 28 Notice on the Attorney General is sufficient to satisfy Article 28, and the second issue was whether in the circumstances of this case, the Article 28 notice was required to be served on the first appellant. The learned master adopted the reasoning set out in the cases of Bryan James et al v The Attorney General3 and Danny Allison George v The Attorney General4 in concluding that the Article 28 Notice having been served on the Attorney General, the claim did not fail.

[5]The learned master observed that in Bryan James, notice was served on the public officer and not on the Attorney General, essentially the opposite of what the respondent had done in this matter. Nonetheless, the learned master made reference to paragraph 27 of the judgment where Pereira CJ stated: “For completeness, lest I be misunderstood, I am not here saying that the Attorney General should not be served with an Article 28 Notice. Indeed I would consider it prudent for the claimant to also serve the Article 28 Notice on the Attorney General based on my later reasoning in respect of the requirement to make the Attorney General the defendant in such proceedings. Rather, the point I am making is that the claim does not fail where a claimant has served the public officer with the article 28 Notice but has failed to similarly serve the Attorney General. It may be arguable that where a claimant serves only the Attorney General with an Article 28 Notice that the claim does not fail but I need not decide this point on this appeal and I refrain from so doing.”

[6]The learned master found the case of Danny Allison George to also be instructive. He cited paragraphs 22 to 25 of the judgment where Smith J stated: “[22] The CPA was later enacted. Section 4(1)(a) makes the Crown liable for the delicts or quasi delicts committed by its servants or agents; and section 13 provides that civil proceedings against the Crown shall be instituted against the Attorney General. The CPA therefore cures the mischief that article 28 was designed to mitigate by providing that the Crown assumes liability for the wrongful actions of its public officers and that any proceedings in respect of such liability must be brought against the Attorney General on behalf of the Crown. [23] Section 28 of the CCP has, however, not been repealed and the Court must therefore give effect to it. In doing so, the Court must attempt to ensure that article 28 reads harmoniously with the CPA and not lead to an absurdity or injustice not intended by the Legislature. If the purpose of the article 28 notice is to give the ultimate responsible party (the state) time to assess a claim and possibly avoid unnecessary, costly litigation for the public good, it would lead to an absurdity if a claim fails for doing precisely that, namely, directly giving the Attorney General the required notice instead of the public officer for whom the state is vicariously liable. Beyond the absurd, it would lead to grave injustice if a claim were to fail because a claimant does not serve notice upon the public officer but instead serves the Attorney General who the notice, in any event, is intended to benefit and facilitate. [24] I therefore conclude that, for the purpose intended by article 28 of the CCP, a claim does not fail if the notice is served upon the Attorney General instead of upon the public officer who it is alleged committed the wrongful act. This interpretation, in my view, and for the reasons outlined above, avoids an absurdity and injustice while at the same time achieving the ultimate ends for which the article was intended.”

[7]After applying the dicta in these judgments the learned master determined that it was unnecessary to consider the second issue raised in the application which would require him to determine whether the first appellant’s alleged actions were in the course of ‘fulfilling a public duty or function’. He found that this issue would be better left for trial and would be another basis for refusing to strike out the claim. The learned master therefore refused the application by the appellants to strike out the claim form and the statement of claim.

The Appeal

[8]The appellants filed their notice of appeal on 22nd March 2023 containing the following grounds of appeal: (i) The learned master erred in finding that the circumstances in this case were on all fours with the circumstances described in the dicta of the Chief Justice in Bryan James in circumstances where there was no decision rendered by the Court of Appeal in Bryan James on the issue of service of a document purporting to be an Article 28 Notice on only the second named Appellant. (ii) The learned master erred in finding that a document served on the second named appellant purporting to be an Article 28 Notice without that document being served on the first named appellant would satisfy the requirements of the Article. (iii) The learned master erred in law in failing to take into account the effect of the failure of an Article 28 Notice on the public officer, that he or she cannot be sued for damages neither can any judgment be rendered against him or her. (iv) The learned master, in relying on Danny Allison George, failed to have any regard or sufficient regard to the applicants/intended appellants’ reliance on section 4(4) on the Crown Proceedings Act. (v) The learned master erred in law when he failed to analyse and or properly analyse the legal effect of section 4(4) of the Crown Proceedings Act which allows the Crown to rely on any provision which limits or negative the liability of the public officer contained in any enactment together with Article 28 of the Code of Civil Procedure. (vi) The learned master erred in the exercise of his discretion so that his decision is plainly wrong.

The Parties’ Submissions

The appellants

[9]Counsel for the appellants submitted that the learned master failed to have proper regard to the joint operation of the section 4(4) of the CPA and Article 28 of the CCP. More specifically, he submitted that the learned master failed to appreciate that the effect of section 4 (4) of the CPA means that the claim as against the appellants cannot be maintained neither can the court render a judgment against them.

[10]Counsel explained that section 4(1)(a) of the CPA provides that the Crown is vicariously liable for the actions of its officers/servants, once the act or omission of its officers/servants would have given rise to a cause of action in delict or quasi-delict against that servant or agent, and section 4(4) of the CPA allows the Crown, the vicariously liable party, to raise any defence which an officer of the Crown could have raised to negative his or her liability had the proceedings been against the officer. Counsel submitted that Article 28 of the CCP which provides for a mandatory condition precedent to the institution of a claim for damages against a public officer namely, the delivery of the notice in writing in the terms stipulated is also a defence which negatives the liability of an officer of the Crown in respect of any delict or quasi- delict committed by that officer if a notice of suit, fulfilling the requirements of the Article, has not been served on him or her personally.

[11]The appellants therefore contends that as the vicariously liable party, the Crown can rely on any enactment which the officer could have utilised to negative his or her liability had the proceedings been brought against him or her (Article 28). They submit that had these proceedings been against the officer solely, invoking Article 28 as a defence would have resulted in a dismissal of the claim against the officer.

[12]They further submitted that Parliament's intention was clearly to have Article 28 extended to the Crown as it would have applied to the officer. The appellants relied on the dicta of Pereira CJ (as she then was) in Bryan James et al v The Attorney General, where at paragraph 20, she observed that: “…it cannot be disputed that the Crown may take the benefit of an exemption or limitation of liability provided under article 28 of the CCP or indeed any enactment which negatives or limits the liability of a government department or public officer, as may be invoked pursuant to section 4(4) of the CPA."

[13]Later, at paragraph 23 of that judgment, the learned Chief Justice went on to find that [Article 28] is “a built in privilege afforded to the public officer and extended to the Crown by virtue of section 4(4) of the CPA". Counsel submitted that the Court of Appeal having previously addressed the purport and ambit of section 4(4) of the CPA together with Article 28, the learned master was bound to follow same. According to Counsel, Article 28 confers no discretion on the court because it was established on the statement of case that the public officer was acting within the legal exercise of his duties, therefore, if these present proceedings had been proceedings against the public officer only, the notice having not been served personally on him, the claim would have been dismissed.

[14]Counsel for the appellants also took issue with the learned Master’s adoption of Smith J's reasoning in Danny Allison George which reasoning was prefaced on a perceived rationale in the Bihar Chowdhary & Anr v State of Bihar & Ors5. He submitted that the learned master's reliance on Danny Allison George was misplaced as the court in Bihar Chowdhary & Anr v State of Bihar & Ors was examining a section which, though similar to Article 28, is not equivalent to same.

[15]The appellants further submitted that in failing to construe section 4(4) of the CPA correctly or at all, the learned master failed to give effect to the intention of Parliament. Counsel for the appellants argued that Parliament intended that the pre action notice be served personally on the public officer (CCP). However, there is no requirement that the notice be served on the Attorney General. According to Counsel, Parliament would not have removed the requirement for notice (this important pre-action protocol) to be served on a public officer. Again, they relied on the judgment of Pereira CJ in Bryan James where at paragraph 22 she observed that compliance with Article 28 does not create an absurdity or lead to an unworkable consequence neither does it place it at odds with any provision in the CPA. Parliament's intention is to have Article 28 maintain its efficacy. If the requirements of that Article are not complied with, such failure is a defence which would be open to the public officer had the public officer been sued. As the Attorney General now stands in the shoes of the public officer the Crown should receive the benefit of this defence by virtue of section 4(4) of the CPA.

[16]Counsel submitted that the language of section 4(4) of the CPA is plain and unambiguous. Applying the learning from Althea Maynard et al v Eastern Caribbean Asset Management Corporation6 and borrowing the words of Pereira CJ in Bryan James he submitted that there is no need 'for resorting to any rules of interpretation outside the natural and ordinary meaning of the words used'. He concluded that having (1) failed to construe section 4(4) of the CPA correctly or at all; (2) failed give effect to the intention of Parliament and; (3) taken into account irrelevant considerations in arriving at his decision and failing to take into account relevant factors the learned master erred in principle in the exercise of his discretion on the appellants' application to strike. As a result of this error in principle, the learned master's decision has exceeded the generous ambit within which reasonable disagreement is possible and should be set aside.

The respondent

[17]In responding to the grounds of appeal, Counsel for the respondent noted that although the Crown will bear liability in circumstances where the act was done by the individual defendant in the exercise of, or closely connected to his or her functions (See Gordon v The Attorney General)7, a claim against a public officer, or other person fulfilling any public duty or function may be distinguished from a claim against the crown. Article 28 of the CCP refers specifically to claims against specific individuals - a public officer, or other person fulfilling any public duty or function. She further noted that the Article makes plain that the notice must state the person’s name and residence and be served personally upon that person or at his or her place of domicile.

[18]If the public officer or other person fulfilling any public duty or function is not joined as a party to the claim then Article 28 is not engaged and he does not need to be served. Counsel for the respondent however further argued that even where the claim against the public officer or other person fulfilling any public duty or function fails for reasons of ineffective service of the Article 28 Notice, the vicarious liability claim against the Crown can still persist. The respondent cited Bryan James at paragraph 28 to bolster this argument reiterating that “there is no requirement expressed or to be implied for service of an Article 28 Notice on the Attorney General in order to maintain a claim for damages against the Crown in respect of a delict or quasi delict committed by a public officer or other servant or agent of the Crown.”

[19]With regard to the application of section 4(4) of the CPA, the respondent submitted that the appellant’s argument is flawed on two levels. Firstly, Article 28 only applies to suits against public officers, or other persons fulfilling any public duties or function, and not suits against the Crown. It cannot be that the intention of the Article is to serve the individual with notice of a suit against the Crown. If in fact, section 4(4) is to be applied to Article 28 and that ‘parliament’s intention is to have section 4(4) extended to the Crown as it would have applied to the officer’, it could only mean that if such a claim is made against the Crown, the Crown is entitled to be given notice as an individual sued would have been entitled to have been given notice. Counsel pointed out that this is precisely what happened in the present matter.

[20]Secondly, the respondent submitted that the first appellant was not entitled to the benefit of Article 28 for reasons stated in the respondent’s statement of claim including unlawful and violent conduct against the respondent. Counsel submitted that although the police officers’ acts against the respondent were closely connected to their duties and function, they were unlawful and could not have been legitimately sanctioned duties of the job. This gives rise to the question as to whether the police officer’s acts were committed in the fulfilment of any public duty or function and whether the first appellant’s acts were sufficiently closely connected to his employment as to make the Crown liable. The respondent suggested that these questions can only be decided on the evidence led at trial8 and so the learned master was correct to refuse the strike out application.

Appellant’s reply submissions

[21]In reply, the appellants further amplified the import of Article 28 arguing that Article 28 of the CCP is a provision which provides for immunity from suit and judgment being rendered against the public officer. They cited in support the dicta in Charter Capital Limited v National Bank of Anguilla et al9 and concluded that the immunity afforded by Article 28 is “a freedom from the legal obligation to perform actions or to suffer penalties….the court’s own jurisdiction is circumscribed by legislative will where such immunity is legislated.”

[22]On that basis, the appellants argued that it would undermine the intent of the legislature if the Court goes behind pleadings which accept (as in the present case), that the public officer was acting as a servant or agent of the Crown. According to Counsel for the appellants if it is accepted that the police officer was acting within the legal exercise of his function and as a servant or agent of the Crown then Article 28 applies.

[23]The appellants submit that the respondent’s contention that there remains an issue to be tried if the claim against the public officer is dismissed for non-service ought to be rejected as this could not have been the intention of Parliament. Counsel argued that this was not the approach taken by the courts in several cases including Bryan James and Peter Clarke v The Attorney General et al10 in which Edwards J did not conclude the court was entitled to hear and determine the claim to ascertain whether the public officer was acting bona fide in the execution of his or her duty. Instead Edwards J rightfully struck out the claim holding that the consequence of giving defective notice was fatal to the claim.

[24]The appellants further submit that the case of Gordon v The Attorney General can be distinguished as that case is concerned with the Public Authorities Protection Act which requires actions in respect of acts done in the execution of a public duty to be commenced within one year, whereas an Article 28 of the CCP is concerned with the service of a notice on public officers acting within the legal exercise of their duties. The further argued that the Public Authorities Protection Act is not applicable in Saint Lucia making this case inapplicable to the matrix of this appeal.

Analysis and Conclusion

[25]In this appeal, the question to be considered is whether the learned master erred in law when he determined that the respondent’s claim against the appellants did not fail as a result of the respondent’s failure to serve the first appellant (the public officer and principal tortfeasor) with the pre-action notice mandated under Article 28. In my view, this requires a staged analysis of several relevant statutory provisions. I do not think that this question can be answered by examining these provisions in isolation and without regard to the overall context in which they were enacted. The Code of Civil Procedure

[26]The Saint Lucia Code of Civil Procedure has some significant vintage. When it came into force in 1882, it included Article 28 in its present-day formulation. This article lays down the procedure where suits are brought against a public officer and provides that: "No public officer, or other person fulfilling any public duty or function, can be sued for damages by reason of any act done by him or her in the exercise of his or her functions, nor can any judgment be rendered against him or her, unless notice of such suit has been given him or her at least one month before the issuing of the writ of summons. Such notice must be in writing, it must specify the grounds of the action, must be served upon him or her personally, or at his or her domicile, and must state the name and residence of the plaintiff."

[27]The effect of this provision is clearly to impose a bar against the institution of a suit in damages or the entry of any judgment against a public officer or other person fulfilling any public duty or function in respect of any act purported to be done by him in his official capacity unless written notice of such suit has been served on him of her personally at his domicile at least one month before the suit is issued.

[28]Article 28 of the CCP has been the subject of judicial consideration in a number of judgments. As far back as 1902, the St. Lucia Gazette recorded the judgment in Evelyn v Gray et al11 in which the St. Lucia Royal Court considered an appeal against the decision of the magistrate of the District Court in which he non-suited the plaintiff/appellant on the ground that he had not complied with the requirements of Article 28 of the CCP. The Court held that the magistrate properly declined to entertain the claim for damages against the respondent. However, in the absence of notice required to be given under Article 28 of the CCP, the court found that the magistrate should have taken evidence and come to a decision with respect to money paid by the appellant under protest. The magistrate's decision would be confirmed but the case was returned to the District Court so that evidence could be received and for the court to adjudicate on that point.

[29]The legislative context in which Article 28 would have been proclaimed in 1882 is critical to the outcome of this appeal. The Code of Civil Procedure 187912 would have been enacted by the Governor with the advice of the Legislative Council of Saint Lucia. It would have come into force when it was approved by Her Majesty the Queen and became law when it was proclaimed by the Governor of Saint Lucia (then a colony of England) in 1882. At the time when the CCP would have been proclaimed, it would have been out of the question for the Crown (the sovereign of both the United Kingdom and Saint Lucia) to have been joined as a defendant to any claim. Only the crown servant or public officer would have been sued and therefore it would only have been necessary for him/her to be served with the requisite notice.

[30]The Crown’s immunity was exemplified by the maxim, “the King can do no wrong”.13 The Crown could not commit a tort; and nor could it be held vicariously liable for the torts of its servants based on the fiction that the wrong of the servant was the wrong of the master.14 But the maxim also meant that Crown servants could not justify their tortious actions by arguing that they had been ordered so to act by the Crown: “[F]rom the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong.”15

[31]It was however accepted that the Crown had a moral obligation to correct wrongs done to its subjects, just as those subjects were obliged to correct wrongs they did to each other. A complex system was therefore developed by which the plaintiff would first submit a petition of right, seeking redress for their grievance. If the monarch consented to its adjudication by endorsing the petition with the words fiat justitia (let justice be done), then the claim could be adjudicated in court. This procedure however had critical limitations - it could not be used to seek remedies in tort. Given that there was no other procedural vehicle to bring a tort claim against the Crown; the practical result was that, at common law, the Crown remained immune from claims in tort.

[32]In Conseil des Ports Nationaux v Langelier16, the Supreme Court of Canada summarised the common law in four propositions: “First is the proposition that the Crown itself could not be sued in tort. Second is the proposition that Crown assets could not be reached, indirectly, by suing in tort, a department of government, or an official of the Crown. … Third is the proposition that a servant of the Crown cannot be made liable vicariously for a tort committed by a subordinate. The subordinate is not his servant but is, like himself, a servant of the Crown which, itself, cannot be made liable. Fourth is the proposition that a servant of the Crown, who commits a wrong, is personally liable to the person injured.”17

[33]Of course, tortious liability of public officials could never be a complete substitute for Crown liability and so in 1947, the United Kingdom embarked on major reforms to Crown liability which resulted in Crown Proceedings Act 1947.18 This Act was replicated in Saint Lucia in 1956 and subjected the Crown to liability in tort, abolishing the requirement of a royal fiat and eventually eliminated the need to file a petition of right. Section 4 of that Act provides that: ”4. - (1) Subject to the provisions of this Act, the crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject – (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate. (2) Where the crown is bound by a statutory duty which is binding also upon persons other than the crown and its officers, then, subject to the provisions of this Act, the crown shall, in respect of a failure to comply with that duty, by subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity. (3) Where any functions are conferred or imposed upon an officer of the crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the crown. (4) Any enactment which negatives or limits the amount of the liability of any government department, or officer of the crown in respect of any tort committed by that department or officer shall, in the case of proceedings against the crown under this section in respect of a tort committed by that department or officer, apply in relation to that department or officer if the proceedings against the crown had been proceedings against that department or officer. (5) No proceedings shall lie against the crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which lie has in connection with the execution of judicial process. (6) No proceedings shall lie against the crown by virtue of this section in respect of any, neglect or default of any officer of the crown, unless that officer has been directly or indirectly appointed by the crown and was at the material time paid in respect of his duties as an officer of the crown wholly out of the revenue of The Bahamas or was at the material time holding an office in respect of which the minister for the time being responsible for finance certifies that the holder thereof would normally be so paid.”

[34]The proviso to section 4(1) makes clear that under the CPA, no right of action exists against the Crown in tort unless the act or omission would, apart from the provisions of the Act, give rise to a cause of action in tort against that servant or agent or his estate in respect of whom it is alleged that vicarious liability arises against the Crown.

[35]Procedurally, section 13 of the CPA makes clear that in a suit by or against the Crown, the authority to be named as claimant or defendant is the Attorney General. These provisions remain in force today and there are two important factors which must be noted. Firstly, although other jurisdictions would have taken the necessary steps to adjust the procedural provisions to ensure consistency with the new liability regime, Saint Lucia did not. No consequential amendments were made to the CCP mandating that in a suit against the Crown that the Attorney General should be also served with an Article 28 Notice.

[36]It is not surprising that this oversight has resulted in a multitude of avoidable legal challenges. Where litigation engages the Crown and its servants or agents, the pre action notice or protocol is a commendable tool which is aimed at encouraging the early exchange of information between parties involved in a potential legal dispute, enabling them to try and resolve the issue through negotiation and settlement before initiating formal court proceedings, thereby reducing costs and streamlining the litigation process. In light of this, it is my view that Parliament ought to have made the necessary legislative changes to put this matter beyond doubt.

[37]The reality of this lacuna is confirmed in Bryan James where, at paragraph 1 of the Held, the Court applied the judgments in Bertha Compton v Dr. Nathaniel et al19; General Aviation Services Ltd et al v The Director General of the Eastern Caribbean Civil Aviation Authority et al20 and stated that: “The language of article 28 of the CCP is clear and thus says what it means without the necessity for resorting to any rules of interpretation outside the natural and ordinary meaning of the words used. In order to bring a suit against a public officer for damages, a claimant must serve notice of the intended suit on the public officer personally or at his domicile. While it would be prudent for a claimant to also effect service of an Article 28 Notice on the Attorney General, article 28 itself does not speak to service upon the Attorney General. It does not say in terms that notice must be served on the Attorney General nor is any reference whatsoever made therein to the Attorney General. There is therefore no requirement expressed or to be implied for service of an Article 28 Notice on the Attorney General in order to maintain a claim for damages against the Crown in respect of a delict or quasi-delict committed by a public officer or other servant or agent of the Crown. A claim does not fail where a claimant has served the public officer but has failed to similarly serve the Attorney General.” Emphasis added

[38]On a proper reading of Article 28, the wording is clear and must therefore be given its plain ordinary meaning. Article 28 is clearly enacted for the benefit of the named party i.e. the public officer, or other person fulfilling any public duty or function.21 Given the historical legislative context in which it came into force, it is clear that the drafters could not have intended to impose a similar pre-action protocol in regard to the Crown or the State. This is because at the time that the CCP would have been promulgated, the legal landscape in regard to liability of the Crown would have been quite different.22

[39]In the wake of the CPA, it was open to the Saint Lucia legislature to make the necessary legislative amendments which would make plain that a pre action notice would also need to be served on the Crown when joined as a defendant to a claim. However, this was not done and so the CCP does not impose a similar obligation on a claimant to give notice of intended action to the Crown. This is not the case in many other jurisdictions such as in India where section 80 of the India Code of Civil Procedure 1908 provides: “80. Notice (1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of— (a) in the case of a suit against the Central Government, [except where it relates to a railway] a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf; (c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. “Emphasis added.

[40]I reiterate that Article 28 lays down the procedure where suits are brought against public officers or individuals who are fulfilling a public duty or function. The provision is imperative in its language. It clearly affords protection to public officers. According to the Judicial Committee of the Privy Council (considering section 80 of the Indian Civil Code of Procedure) in Bhagchand Dagadusha Gujarati and Ors. vs Secretary of State for India23 “this protection takes the form of providing a fixed and obligatory interval of two months between the required notice and the commencement of any suit…”.

[41]The Article absolutely bars a court from entering judgment against a public officer or indeed entertaining a suit which has been instituted without compliance with its provisions. The judgment in Bhagchand Dagadusha Gujarati and Ors. is just one of many which has pronounced on the consequences of failure to serve a pre-action notice when it is a mandated condition precedent for the commencement of a suit. It follows that failing to serve the pre-action notice (where it is required), renders the action premature. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with the pre-action notice.24 The Board in Bhagchand Dagadusha Gujarati and Ors. described the consequence in the following terms: “The consequence is that the appellants’ present position in regard to the taxes imposed on them is as if their action had never been brought. It is unsustainable in limine. They commenced their suit before the law allowed then to sue, and can get no relief in it either by declaration or otherwise….They have taken their own course and have brought this result on themselves.”

[42]The service of this notice on a public officer or a person fulfilling public duties or function is therefore a prerequisite, essential to the success of legal proceedings. If it is not given, the claim against that public officer must be rejected, struck out and dismissed and the court cannot issue any award for damages. This has consistently been the approach adopted by the courts in this jurisdiction since Evelyn v Gray.

[43]In this appeal, the learned master made two critical findings which in my judgment disclose an error of law. First, he determined that the facts in this case were “on all fours with the circumstances described in the dicta of the Chief Justice in the Bryan James consolidated appeals…” This is clearly not the case. At paragraphs 1 – 3 of the headnote in Bryan James the facts are recounted as follows: “Civil appeal nos. 23 and 24 of 2013, ("the James Claims and where appropriate the James Parties") were commenced by claim forms issued on 12th June 2012 for damages and other relief as a result of alleged wrongful searches, seizure and detention of goods and documents from the James parties' personal and business premises on 14th October 2009, by a team of officers from the Customs and Excise Department. Prior to the issuance of the claim forms, the Comptroller of Customs ("the Comptroller") and the James Parties had attempted an amicable resolution of the matter but to no avail. On 2nd April 2012, the James Parties gave to the Comptroller, a notice of intended suit ("Article 28 Notice") in purported compliance with article 28 of the Code of Civil Procedure of Saint Lucia ("the CCP"). There is no assertion that the Article 28 Notice was defective either in form or substance or as to conformity with article 28 of the CCP. The James Parties did not however give to the Attorney General an Article 28 Notice. On 25th October 2012, an amended claim form was filed substituting the Attorney General as defendant in place of the Comptroller. This was done well before the first case management conference which took place in September 2013, but the amendment was effected after a period of three years had elapsed from the date of commission of the alleged delicts. …The Attorney General contended in their defences filed on 16th November 2012 to the James Parties 'amended claims, among other things, that the failure to serve the Attorney General with an Article 28 Notice was fatal to the claims… In the proceedings which gave rise to Civil appeal no. 21 of 2014, ("the Fast Kaz Claims and where appropriate the Fast Kaz Parties") a suit was also initially brought in the name of the Comptroller who was given an Article 28 Notice. It is common ground that Fast Kaz Parties had not given to the Attorney General an Article 28 Notice. Following the setting aside of a judgment in default against the Comptroller, permission was sought and granted for the substitution of the Attorney General in place of the Comptroller as the defendant in the claims. The Attorney General, in her defences to the claims did not however raise the issue of the requirement of giving her an Article 28 Notice. It was the Fast Kaz Parties who, in their application for substitution of the Attorney General in place of the Comptroller, sought also a declaration to the effect that the giving of the Article 28 Notice to the Comptroller was 'proper notice on the Attorney General' in regard to the proceedings.”

[44]Clearly, the Court of Appeal in Bryan James was not required to pronounce on the issue of service of an Article 28 Notice on the Attorney General only. Indeed, at paragraph 27 of the judgment the learned Chief Justice records the following statement: “For completeness, less I be misunderstood, I am not here saying that the Attorney General should not be served with an Article 28 Notice. Indeed I would consider it prudent for the claimant to also serve the Article 28 Notice on the Attorney General based on my later reasoning in respect of the requirement to make the Attorney General the defendant in such proceedings. Rather, the point I am making is that the claim does not fail where a claimant has served the public officer with the Article 28 Notice but has failed to similarly serve the Attorney General. It may be arguable that where a claimant serves only the Attorney General with an Article 28 Notice that the claim does not fail but I need not decide this point on this appeal and I refrain from so doing.” Emphasis added

[45]In this appeal, the respondent served the Article 28 Notice on the Attorney General but failed to serve the public officer. This factual scenario is not on all fours with what obtained in the Bryan James appeals. Where, as in this appeal, the public officer has not been served with the Article 28 Notice, the sanction is well established – the claimant loses his right to sue the public officer against whom he claims damages and the court cannot issue any award for damages in his favour.25

[46]The second problematic finding of the learned master is set out in paragraph 12 of the judgment where he concluded that (notwithstanding that the public officer was not served) service of the Article 28 Notice on the second appellant (the Attorney General) would mean that the claim would not fail. In defining their second ground of appeal, the appellants take issue with this finding.

[47]Given the clear wording of Article 28, I am satisfied that effective service on the public officer could only be as prescribed in that article. The notice must be served upon the public officer personally. I am further satisfied that service on the Attorney General would not suffice for that purpose. It is common ground between the Parties that the respondent did not serve the Article 28 Notice on the first appellant who is the public officer and the principal tortfeasor. It follows then that the claim against the first appellant would be unsustainable and should have been dismissed by the learned master.

[48]I therefore find that in failing to dismiss the claim as against the first appellant, the learned master made critical errors of principle which warrant this Court’s intervention.

Proof of Bona Fides

[49]Although the respondent concedes that the first appellant is a servant of the crown, and that the actions of the police were closely connected with their functions and duties, he does not agree that they were executed in bona fide and legal fulfilment or exercise of any public duty or function. Counsel for the respondent submitted that a court can only decide these issues on evidence and so any pre-trial application to strike out for failing to serve an Article 28 Notice on the first defendant in the instant circumstances must fail. She cited in support the judgment in Gordon v. The Attorney General. In that case, the plaintiff claimed damages on behalf of the estate of his son who had been killed by police officers. The statement of claim alleged that the police officers in the course of their duty as servants or agents of the Attorney-General had maliciously and without reasonable or probable cause shot the deceased and killed him. The Attorney-General obtained an order from Bingham J striking out the action as being statute-barred under the Public Authorities Protection Act, section 2(1) (a) (requiring actions in respect of acts done in the execution of a public duty to be commenced within one year). That order was upheld by the Court of Appeal. On further appeal, the Judicial Committee of the Privy Council held that the Crown might be liable for the acts of the police officers on the principle of respondeat superior if they were not acting bona fide in the execution of their duty. After noting that the statement of claim had raised two issues (i.e. whether the police officers had been acting bona fide in the execution of their duty and, if they had not, whether the Crown was nonetheless liable for their actions) the Board concluded that neither issue could be resolved without a trial and, accordingly, the writ should not have been struck out.

[50]The first point in that appeal turned on section 2(1) of the Jamaican Public Authorities Protection Act which provided as follows: 'Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance, or execution, or intended execution, of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty, or authority, the following provisions shall have effect – (a) the action … shall not lie or be instituted unless it is commenced within one year next after the act … complained of …'

[51]The Board observed that a critical question arises as to the meaning and scope of 'any act done in pursuance, or execution, or intended execution … of any public duty'. Noting that the mere allegation of malice does not deprive the defendants of the protection of the Act; the Board determined that on the facts of the case before it, it certainly raised an issue to be tried. The Board accordingly concluded that this was not an appropriate case for striking out.

[52]The Board further held that, notwithstanding the provisions of section 33 of the Constabulary Force Act (allegation of malice in actions against police officers), section 2(1) of the Public Authorities Protection Act did not accord protection to police officers when they were not acting bona fide.

[53]I am not persuaded that the judgment in Gordon v The Attorney General (decided on a different legislative matrix) assists the respondent. The language expressed in Article 28 of the CCP is clear. It does not require proof of bona fides. The provision is satisfied if it is alleged that the act done by the public officer was in the exercise of his or her function so that if the act alleged was one such as is ordinarily done by the officer in the course of his official duties then the provision is satisfied. I find strong support for this conclusion in a number of cases where the relevant legislative matrix more closely resembles the case in this appeal.

[54]In Kirby v Simpson26 the plaintiff commenced an action against a magistrate for having, in the execution of his office, acted maliciously and without reasonable and probable cause. At the close of the plaintiff's case, it was contended on the part of the defendant that he was entitled to notice of action under the Justices Protection Act 26 (1854) 156 E.R. 482; and see: Similarly in Royal Aqurium v. Parkinson26 in the English Court of Appeal, 1848 s 9 (repealed); and that, as no notice had been given, the plaintiff must be nonsuited. On the part of the plaintiff it was contended, that there was evidence that the defendant had used his office colorably, and that the question whether the defendant was entitled to notice depended upon his having done what he did in the bona, fide belief that he was acting as a magistrate, which was a question for the jury. The learned Judge, however, thought that the defendant was entitled to notice, and that there was no such question for the jury. He accordingly nonsuited the plaintiff. On appeal, the English Court of Exchequer held that in such case, the question whether he acted bona fide, or used his office colourably, did not arise.

[55]The salient reasoning was found in the judgment of Parke B at page 486 of the report where he stated: “The 9th section says, that "no such action shall be commenced against such justice of the peace, until one calendar month at least after a notice in writing of such intended action," &c.; and in order to see what is meant by the words " such action," by referring to the previous section (sect. 8), we find that " no action shall be brought against any justice of the peace for anything done by him in the execution of his office, except the same be commenced within six calendar months," &c.; so that, taking these sections together, it is clear that a person may act maliciously, and yet act in the execution of his office as a justice of the peace, and that in such case notice must be given to him. The learned Judge therefore acted rightly in nonsuiting the plaintiff, in the absence of notice.”

[56]The judgment in Kirby was considered in a line of Indian cases in which section 80 of the Indian Civil Procedure Code was considered starting with the appellate judgment of the Madras High Court in Samanthala Koti Reddi vs Pothuri Subbiah and Ors27 where a Full Bench held that a public officer is entitled to notice of suit under Section 80 of the Civil Procedure Code, even, if in the discharge of his duty, he has acted mala fide. The judgment of Spencer J summarised the court’s reasoning succinctly where he stated: “When it is the intention of Government to protect official and judicial acts done by public servants in good faith, the Legislature makes use of the words 'good faith", as may be seen from Sections 76 to 79 and 99 of the Indian Penal Code, Section 156, Clause 4, of the Local Boards Act and Section 1 of the Judicial Officers' Protection Act. But in Section 80, Civil Procedure Code, there is no qualification that the act must be one done in good faith to entitle the officer concerned to notice. In practice it would not always be easy at the stage of issuing notice to determine whether good faith existed before that question had been decided at the trial. Government undertakes the defence of their servants in actions brought against them personally for official acts done by them in cases where those acts are deemed defensible. The issue of notice gives time to the public officer to make amends for his act or to report the case to Government and get himself defended at the public cost. So notice is made compulsory in all suits against public servants for acts done officially.”

[57]That reasoning confirms the view which I have taken of the words in Article 28. As indicated, I am therefore unable to agree with the submission that it was not necessary for the respondent to give the notice, prescribed by Article 28 before bringing a suit against the first appellant, because it was proved that, although he purported to act in his official capacity as a public officer, he had acted mala fide.

[58]On this issue the only question is whether the arrest of the plaintiff was an act purporting to be done by the defendant as a public officer in his official capacity. Judging from the pleadings, this does not appear to be in dispute. Consequently, the suit could not be instituted until the expiration of one month next after notice in writing was given. Inasmuch as no notice was given, the claim against the police officer would fail. The claim against the Attorney General

[59]The question which remains to be determined is whether the dismissal of the claim as against the public officer automatically means that the claim against the Attorney General should have been dismissed. The starting point in this analysis begins with the respondent’s statement of claim. In the amended statement of claim filed on 4th August 2020, the respondent makes clear that the first appellant was acting at all material times as a police officer attached to the Special Services Unit (SSU) of the Royal Saint Lucia Police Force and was a servant or agent of the Crown. He further contends that the second named appellant is joined as a party to the present claim pursuant to section 13 of the CPA.

Is the Attorney General the Crown?

[60]Procedurally, section 13(2) of the CPA makes clear that in a suit by or against the Crown, the authority to be named as claimant or defendant is the Attorney General. It provides that: ‘Civil proceedings against the Crown shall be instituted against the Attorney General.’

[61]During the course of legal submissions before this court, counsel for the appellant submitted that that the Attorney General, for the purposes of the CPA, was not the Crown or part of the Crown. The parties were invited to provide supplemental legal submissions on this issue and in written legal submissions. Counsel for the appellant submitted that in order for the Article 28 Notice to be effectual, it cannot be served on the Attorney General, as the Attorney General exercises no executive power and does not act in an executive capacity. Therefore, the Attorney General is not ‘the Crown’ or ‘part of the Crown’ for the purposes of the CPA, more specifically, sections 4, 10 and 26.

[62]Accordingly, counsel submitted that the Attorney General is not an appropriate substitute, legal or otherwise (practically), for effecting service of the Article 28 Notice, nor is either of his law officers. Counsel further submitted that if one were to equate ‘the Crown’ with the term ‘the Government", the Attorney General, by virtue of his constitutional office, is the principal legal adviser to the Government/the Crown. By virtue of this provision, the Attorney General is not the Crown or the Government, but merely its legal advisor, save on the occasion that he/she also holds the office of minister in accordance with section 72 (2) of the Constitution of Saint Lucia28.

[63]I find no merit in these submissions.

[64]Section 8 of the Saint Lucia Interpretation Act29 provides that in any Act references to the Sovereign reigning at the time of the passing of the Act or to the Crown shall, unless the contrary intention appears, be construed as references to the Sovereign for the time being.

[65]It is an established constitutional principle that the Crown can and does act in different capacities in relation to different parts of the realm. This occurs where a distinct government of His Majesty has been lawfully established. Where this occurs, (as in the case of St. Lucia), the government of His Majesty in constitutional terms is often described as “the Crown in right of the Government of St. Lucia”. This is however the same as the government in question.30

[66]This position is confirmed in savings clause prescribed under section 30 of the CPA which provides that: “30. (1) Nothing in this Act shall apply to proceedings by or against, or authorise proceedings in tort to be brought against, Her Majesty in Her private capacity. (2) Except as therein otherwise expressly provided, nothing in this Act shall— (a) … (b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of Her Majesty’s Government in Saint Lucia; or affect proceedings against the Crown in respect of any such alleged liability as aforesaid; (c) affect any proceedings by the Crown otherwise than in right of Her Majesty’s Government in Saint Lucia…”

[67]In Town Investments Ltd and others v Department of the Environment31 Lord Diplock writing for the English House of Lords traced the transformation over the centuries of the relationship between the monarch and ministers and civil servants from that of personal rule by a feudal landowning monarch to the constitutional monarchy of today. Lord Diplock provided significant clarity on this issue when he stated that: "To speak nowadays of "the Crown" as doing legislative or executive acts of government, which, in reality as distinct from legal fiction, are decided on and done by human beings other than the Queen herself, involves risk of confusion. It would be better, instead of speaking "the Crown." To speak of "the government - a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. Executive acts of government that are done by any of them, in the name of Her Majesty or other their official designation, are acts done by "the Crown" in the fictional sense in which that expression is now used in English public law."

[68]In M v Home Office32 the Court of Appeal applying the dicta in Town Investments Ltd and another explained the rationale for joining the Attorney general when suing the Crown/government when he observed that ‘“The Government" is of course far from fictitious, but it too lacks legal personality. The court went on to observe that “Parliament and the common law could well have conferred such personality upon either or both, but instead other devices have been adopted to enable justice to be done between the Government and the citizenry”. At page 301 Lord Donaldson cited one of these relevant devices… “In the field of private law it was sometimes possible to sue the Attorney- General on behalf of the Government….In 1947 it was decided that the time had come to some extent to rationalise and expand the methods whereby disputes with government and its departments could be resolved and at the same time to extend their liabilities into the field of torts. Hence the Crown Proceedings Act 1947. it did not give "the Crown" or government ministries legal personality. …It merely enabled aggrieved citizens to sue authorised government departments in their own name and other emanations of Government in the name of the Attorney-General: see section 17. In this it was developing an earlier statutory approach which enabled some, but not all, government departments to sue and be sued in their own names.”

[69]Section 13 (2) of the CPA therefore prescribes (from a procedural standpoint) how the Crown in right of Her Majesty’s Government may be sued. The Act makes clear that the authority to be named as defendant is the Attorney General. The Attorney General may well be the principal legal advisor of the Government but under section 13 (2) of the CPA, he has been statutorily designated as the nominal defendant when suing the Crown in right of Her Majesty’s Government in Saint Lucia.

[70]There is therefore no personal or primary liability which attaches to the Attorney General. The operating liability here is vicarious and it attaches to the Crown. This position has been made clear by the Caribbean Court of Justice (CCJ) in the judgment in Basil Williams v Attorney General of Guyana et al.33 At paragraphs 15 – 18 of the judgment, Saunders PCCJ explained the historical context and the doctrine of vicarious liability in this way: “[15] … In the United Kingdom, prior to the passage of the UK Act, a person injured by the tortious act or omission of Crown servant had to sue the particular Crown servant and was unable to sue the Crown. The informal practice was that in ‘a proper case’ the Crown would ‘stand behind’ and defend its servant and pay any damages awarded. This practice was not without its problems. Difficulties arose where it was not possible to identify the allegedly errant Crown servant or where a Crown servant was artificially nominated to be sued. To address these challenges, the UK Act was enacted to make the Crown vicariously liable in tort for the acts of their servants and agents. Section 2 of the UK Act is similar to s 3 of the Act. Both sections impose liability on the Crown (the State in the case of republican Guyana) in cases where torts are committed by the agents or servants of the Crown, or State as the case may be, in the course of the execution of their duties. Claimants in such cases are therefore assured that there is a solvent party against whom any damages awarded might be enforced. [16] The Law of Tort explains the doctrine and application of vicarious liability in this way: … The essence of vicarious liability is that it is imposed on the employer without the need for fault on the employer's part – the employer is strictly liable as long as the elements needed for vicarious liability are present. Vicarious liability does not, however, replace the defaulting employee's primary liability for his own tort, so that the employer and the employee are jointly and severally liable for the employee's tort. In theory, the employer (and, by subrogation, his indemnity insurer) may claim an indemnity from the employee for any damages paid, on the basis of an implied term in the employment contract that the employee will take reasonable care when performing his duties or as joint tortfeasors … (emphasis added). [17] Similarly, Hogg, Monahan, and Wright explain that ‘a plaintiff who sues the Crown for the tort of a Crown servant need not bring proceedings against the servant personally (although sometimes the plaintiff will see advantages in adding the individual servant as a defendant)’. Some of the advantages noted include instances where there may be some doubt as to whether the individual wrongdoer was a servant or was at the time acting in the course of employment. Additionally, joining the individual alleged tortfeasor, could guarantee that he or she could be made to attend the trial for cross examination or for discovery. [18] In M v Home Office, Woolf LJ reiterated the continuing liability of the actual wrongdoer. He stated at 410: Section 1 [of the UK Act] enabled the Crown to be sued directly in those situations where prior to the Act a claim might have been enforced by petition of right. Section 2 in general permitted actions to be brought against the Crown in respect of torts committed by its servants or agents for any breach of its duties which gave rise to a tortious liability (including a breach of statutory duty where the breach created a cause of action). Section 2 did not remove the right to sue the actual tortfeasor. (emphasis mine).

[71]At this point I must emphasise the following observation of Hogg, Monahan, and Wright in their text Liability of the Crown34 “a plaintiff who sues the Crown for the tort of a Crown servant need not bring proceedings against the servant personally (although sometimes the plaintiff will see advantages in adding the individual servant as a defendant).”

[72]It is accepted that in order to prove vicarious liability, the claimant must first prove the commission of a tort by a servant. Denning LJ explained the position in the following terms: “… to make a master liable for the conduct of his servant, the first question is to see whether the servant is liable. If the answer is “yes”, the second question is to see whether the employer must shoulder the servant’s liability.” 35

[73]Vicarious liability of the employer therefore arises only on the primary liability of the servant.

[74]There can be no doubt that in an action for tort the principal tortfeasor/servant is a proper defendant. It is equally true that the person who is liable for the acts of the principal tortfeasor/servant or to whom liability has passed vicariously is also a proper defendant. The question which arises in this context is whether the principal tortfeasor/crown servant is required to be joined as a defendant in a suit which seeks to secure a judgment against the Crown/employer on the basis of vicarious liability?

[75]In my view, the answer must be no - a claimant is not obliged to join the principal tortfeasor/crown servant as a defendant in such proceedings. In Part 59 Civil Procedure Rules (Revised Edition) 2023 (“CPR”) ‘ which regulates the procedure when proceedings are brought by or against the Crown, rule 59.3 (1) makes clear the claimant’s remit – “If a claim is made against the Crown, the claim form or statement of claim must contain reasonable information as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the government department and officers of the Crown involved.” If the legal proceedings against the Crown satisfy CPR Part 59.3(1) then the court before whom the case is listed will have to decide it as between the parties before it.

[76]Generally, an action against an employer for the conduct of an employee during the scope of employment, under the doctrine of respondeat superior, may be brought solely against the employer and need not include the employee. An employer may be held solely liable for the entire harm caused by its employee under such circumstances. While primary liability of the crown servant must be proved, the suit against the Crown is no less viable if the servant is not joined as a co-defendant in the action. One reason for this is that it is not always possible or indeed necessary to sue that person. Recognising that it may be difficult or impossible to positively prove which one of several servants was tortious (what may be described as “collective failures”), courts have nevertheless found employers vicariously liable.36

[77]I would go further to say that even where the claim against the officer is struck out not on the merits but for non-service of the Article 28 Notice; it may still be possible to maintain the vicarious liability claim against the Crown once the pleadings contain reasonable information as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the government department and officers of the Crown involved.

[78]Although, it can only rise to the level of persuasive precedent, the reasoning and dicta of the supreme court of Arizona in the 2023 judgment of Laurence v. Salt River Project Agricultural Improvement & Power District37 I believe is instructive. In Laurence, the Arizona Supreme Court held that dismissing a claim against an employee with prejudice, for reasons unrelated to the merits of that claim, does not require the dismissal of the respondeat superior claim against the employer.

[79]In that case, Jacob Laurence and his minor son were injured in a motor vehicle accident involving a truck owned by Salt River Project (“SRP”) and driven by its 36 Cassidy v Ministry of Health [1951] 1 All ER 575; See also the judgment of the Canadian Supreme Court in The Queen v. Levy Brothers Company Limited and The Western Assurance Company 1961 CanLII 58 (SCC) employee. The plaintiffs alleged the employee’s negligent driving caused the accident, and the driver was in the course and scope of his employment at the time of the accident. As such, the plaintiffs alleged SRP was negligent under the theory of respondeat superior. Because SRP is a political subdivision of the State of Arizona, a claim against SRP must be filed within one hundred and eight (180) days. The plaintiffs timely filed a claim against SRP but did not file a claim against the employee driver until almost fifteen (15) months post-accident. The superior court granted the employee driver’s motion for summary judgment against Laurence due to failure to file the claim timely. SRP then filed a motion for summary judgment, arguing since the claim against its employee was dismissed, SRP could not be held vicariously liable for the employee driver’s negligence.

[80]The plaintiffs responded that since summary judgment was granted for reasons unrelated to the merits, SRP could still be found vicariously liable. However, in making its arguments, SRP relied on the earlier judgment in DeGraff v. Smith38 where the Court dismissed a claim against an employee with prejudice for any reason, exonerates the employee from negligence and simultaneously adjudicates the claim against the employer.

[81]The Supreme Court of Arizona found several compelling reasons to overturn DeGraff. First, the Supreme Court found the ruling in DeGraff to be “clearly erroneous or manifestly wrong.” The DeGraff majority correctly treated the dismissal of the claim against the employee with prejudice as an “adjudication on the merits” but, according to the majority in Laurence, it failed to explain why that meant the employee had “been adjudged as not guilty of any negligence” so as to preclude a respondeat superior claim against the employer. In Laurence, the Supreme Court ruled that a dismissal with prejudice does nothing more than bar refiling the same claim in the same court, no matter the basis for the dismissal. The dismissal does not bar a separate claim against another party.

[82]Second, the Court found that DeGraff conflicts with Arizona statute and case law which provide that, under the doctrine of respondeat superior, an employer is vicariously liable for its employees’ tortious acts, not adjudicated liability. Third, the Court found DeGraff in opposition to the recognition that employers sued under respondeat superior cannot assert defences that are personal to the employee. The respondeat superior claim, the Court explains, is “freestanding.” When a plaintiff violates an employee’s procedural rights, that defence is personal to the employee and cannot be asserted by the employer. Fourth, the Court found that public policy does not support upholding DeGraff. The Court concluded that unless the finder of fact finds the employee did not commit a tort, or possibly that plaintiff released the employee from liability, it is fair to allow the respondeat superior claim to proceed.

[83]I completely agree with the reasoning of the court in DeGraff and given the obvious similarities in the facts of this case I believe that the reasoning should be positively applied. Dismissing the claim against the public officer on the basis of non-service of the Article 28 Notice is not a dismissal on the merits and should not affect the viability of the respondeat superior claim against the Crown.

[84]Having considered the respondent’s pleaded case, it is clear that the officer is identified and the impugned actions identified. Moreover, the relationship between the officer and the Crown is pleaded as well as the basis of Crown liability under the CPA. I would therefore have some difficulty with applying the approach taken by the learned Judge in the Peter Clarke matter in which she concluded that the consequences of giving a defective Notice or no Notice is fatal to claimant’s action against all of the defendants. The Application of Section 4 (4) of the Crown Proceedings Act

[85]In this appeal, the appellant placed considerable reliance on section 4 (4) of the CPA which provides that: “Any enactment which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any delict or quasi-delict committed by that department or officer shall, in the case of proceedings against the Crown under this section in respect of a delict or quasi-delict committed by that department or officer, apply in relation to the Crown as it would have applied in relation to that department or officer if the proceedings against the Crown had been proceedings against that department or officers."

[86]Counsel for the appellant submitted that the learned master failed to analyse or properly analyse the legal effect of that section which allows the Crown to rely on any provision which limits or negatives liability of the public officer in any enactment together with Article 28.

[87]The critical issue which arises is whether the second appellant can take the benefit afforded to a public officer by Article 28 on the basis that it has been extended to the Crown by virtue of section 4 (4) of the CPA. Subsection 4 (4) essentially states that any legal provision which limits the liability of a government department or Crown officer in relation to a tort will also apply to the Crown when being sued under this section. This means that the Crown is treated as if it were that specific department or officer in terms of liability limitations for that particular tort.

[88]This is not unreasonable as it effectively makes the Crown subject to the same restrictions as its individual officers or departments would be under similar circumstances. This section ensures that the Crown cannot be held liable beyond the limits imposed on individual government departments or officers when a tort is committed. So that if a specific law restricts the liability of a government department or officer in a particular type of tort case, that same limitation will apply when suing the Crown for that tort.

[89]It is reasonable that, where Parliament has deliberately decided that servants of the Crown are entitled to certain protection in carrying out their duties, the Crown should enjoy the same protection in the case of proceedings in respect of the acts of those servants. In the United Kingdom, examples of such provisions were found in section 23(4) of the Post Office Act, 1908 which provided that “No action or other legal proceeding shall be instituted against the Postmaster-General or any officer of the Post Office, or any person whomsoever, in respect of any compliance with the said regulations, or otherwise in relation thereto, or in respect of the payment of any such money orders being refused or delayed by or on account of any accidental neglect, omission, or mistake, by or on the part of any officer of the Post Office, or for any other cause whatsoever, without fraud or wilful misbehaviour on the part of any such officer of the Post Office”.

[90]In Saint Lucia a somewhat equivalent provision is found in section 7 of the Saint Lucia Land Registration Act39 which provides that: “The Registrar shall not, nor shall any other officer of the Registry, be liable to any action or proceeding for or in respect of any act or matter done or omitted to be done in good faith in the exercise or supposed exercise of the powers under this Act, or any regulations made thereunder.”

[91]These statutes provide a clear and unequivocal example of Parliament negativing or limiting liability in respect of the actions taken by crown servants in the course of their duties. Counsel for the appellant submitted that Article 28 falls within the category of enactments ‘…which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any delict or quasi-delict committed by that department or officer…’ I am however unable to agree with that submission. In my view the answer lies in the clear wording of the provision and its object and purpose.

[92]Article 28 lays down the procedure where suits are brought against public officers. The provision clearly affords protection to public officers, however, as the Board (considering section 80 of the Indian Code of Civil Procedure 1908) in Bhagchand Dagadusha Gujarati and Ors. made clear, ‘this protection takes the form of providing a fixed and obligatory interval of two months between the required notice and the commencement of any suit…’. The judgment in Bhagchand Dagadusha Gujarati is just one of many which has pronounced on the consequences of failure to serve a pre-action notice when it is a mandated condition precedent for the commencement of a suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with the pre-action notice.40 The Board in Bhagchand Dagadusha Gujarati described the consequence in the following terms: “The consequence is that the appellants’ present position in regard to the taxes imposed on them is as if their action had never been brought. It is unsustainable in limine. They commenced their suit before the law allowed then to sue, and can get no relief in it either by declaration or otherwise….They have taken their own course and have brought this result on themselves.”

[93]The Article absolutely bars a court from entering judgment against a public officer or indeed entertaining a suit which has been instituted without compliance with its provisions. If the subject matter is within the jurisdiction of the court, failure on the part of the claimant to serve a pre-action notice on the public officer gives him a private right solely for his benefit to insist on such notice before the claimant may approach the court. Non-compliance with pre-action notice (where it is required), therefore renders the action against the public officer premature. The Court is barred from entertaining such a claim and it must accordingly be struck out. However, non-service of a pre-action notice does not eliminate the right of a claimant to approach the court for redress. It does not annul the right of the claimant to approach the court or defeat his cause of action as against the Crown. .

[94]In my judgment the provision provides for the procedure only, it does not negative or limit rights and liabilities in the way that these sections 7 of the CPA and the Land Registration Act do.

[95]In arriving at this conclusion I am aware that it departs from what I consider to be the observations made obiter in Bryan James.41 However, I derive support for this conclusion from the House of Lords dictum in Matthews v Ministry of Defence.42 [2003] 1 AC 1163. That case was a landmark decision which addressed the compatibility of the Crown Proceedings Act 1947 with Article 6 of the European Convention on Human Rights (ECHR), which guarantees the right to a fair trial. The appellant in that case sought to claim damages for personal injury suffered during his service in the Royal Navy due to asbestos exposure. However, section 10 of the Crown Proceedings Act 1947 rendered the Crown (the Ministry of Defence in this case) immune from liability in tort under specific circumstances. The core legal question in that case was whether this immunity constituted a violation of the right to a fair trial under Article 6.

[96]The House of Lords unanimously dismissed Mr. Matthews' appeal, holding that section 10 of the Crown Proceedings Act 1947 constituted a substantive limitation on the right to sue the Crown in tort rather than a purely procedural bar. Consequently, the House of Lords held that this limitation did not infringe Article 6 of the ECHR. Their Lordships reasoned that the immunity provisions were part of the substantive law governing Crown liability and were not arbitrary or disproportionate restrictions on access to the courts. The decision carefully considered the nature of section 10 (section 8 of the St. Lucia CPA) determining it to be a substantive limitation. The court underscored the distinction between a (1) substantive limitation which refers to rules that alter the fundamental legal rights or liabilities43 and (2) procedural bars which involve rules that affect the process of litigation without changing the underlying rights. The latter may limit how a claim is filed or require certain steps before proceeding, but it doesn't nullify the right to sue itself.

[97]At paragraphs 35 – 36 of the judgment, the Court observed that: “Some statutory rules and regulations are clearly designed to regulate court procedure……Other statutory rules, which may preclude a successful claim for infringement of a civil right, do so because they delimit the rights and liabilities that arise under civil law. They are not procedural rules, but rules of substantive law.”

[98]After considering the judgment in Ketterick v UK44 the House of Lords went on to hold: “It seems to us that the Commission ruled the complaint inadmissible because the effect of s 10 and the issue of the certificate was to alter the applicant's substantive legal rights, rather than to pose an impediment to his access to the courts to enforce those rights.”

[99]I further find support from the fact that in any given case, it is open to the public officer for whose benefit the provision has been made to waive the compliance with this statutorily mandated procedure. The view is reiterated in a passage in Craies on Statute Law45, 7th edition, at page 269: “If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered indispensable. This rule is expressed by the maxim of law, quilibet potest renuntiare juri pro se introducto. As a general rule, the conditions imposed by statutes which authorize legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered indispensable, and either party may waive them without affecting the jurisdiction of the court.”

[100]In the Judicial Committee’s judgment in Vellayan Chettiar v Government of the Province of Madras46 where the Board considered the position in respect of pre- action notices and found: "...there appears to their Lordships to be no reason why the notice required to be given under Section 80, should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required: if in the particular case he does not require that protection and says so, he can lawfully waive his right".

[101]The Judicial Committee of the Privy Council pointed out that there was no inconsistency between the propositions that the provisions of section 80 of the India Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided. It follows that any defendant, who wishes to insist on his right to be served a pre-action notice, must act timeously by pleading non-service of the notice in his defence, and raise objection to the suit. Any failure to do this could arguably be deemed to be a waiver. In my judgment, this is not on par with a statute which is intended to negative of limit tortious liability.

[102]I am also not persuaded by the appellants’ eleventh-hour argument that Article 28 of the CCP provides for immunity from suit and judgment being rendered against the public officer. I find that little assistance is to be derived from the cited authority - Charter Capital Ltd. v National Bank of Anguilla as that judgment considered and pronounced on legislative provisions used in particular statutory matrix47, which are not identical or indeed similar with the language of the CCP which we have to consider.

[103]In my opinion this court must give effect to the natural meaning of the language used in the Article 28. The Article 28 pre-action Notice inures to the benefit of the public officer. The scheme is procedural in its wording and intent. The rationale for such a provision was perhaps best framed in the judgment of the Supreme Court of India in Bihari Chowdhary and another v State of Bihar and Ors48 (considering section 80 of the Indian Code of Civil Procedure). “There is clearly a public purpose underlying the mandatory provision contained in the Section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months’ time to Government or a public officer before a suit can be instituted against them. The object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.” 47 Article 50 (1) and (2) of the Eastern Caribbean Central Bank Agreement Act provides :— (1) “To enable the Bank to

[104]I am of the view that the framers of Article 28 intended to achieve the precise public purpose expressed in Bihari Chowdhary. The provision does not negative or delimit the liability which a public officer may incur under civil law neither does it afford him immunity from suit. I am of the view that the Article 28 protections would not be captured by subsection 4(4) of the CPA.

[105]I am therefore unable to conclude that the learned master erred in principle in the exercise of his discretion on the appellant’s/defendant's application not to strike out the claim as against the Attorney General. I am also not satisfied that the learned master's decision exceeded the generous ambit within which reasonable disagreement is possible. The application of section 26 of the Crown Proceedings Act

[106]Although the argument did not feature in the court below and did not arise in the grounds of appeal, in further skeleton arguments filed on 27th March 2024 pursuant to the order of this Court, counsel for the appellants cited the judgment in Durity v Attorney General of Trinidad and Tobago49 and submitted that pursuant to section 26 of the CPA, the Crown is entitled to take advantage of any statutory defence afforded to a public officer including that prescribed under Article 28 of the CCP.

[107]Although the specific issue in Durity was whether the Trinidad and Tobago Public Authorities Protection Act, applied to deprive the appellant of a constitutional remedy one year after the cause of action arose, the Judicial Committee of the Privy Council made general observations on section 33 of the State Liability and Proceedings Act 1966 (originally known as the Crown Liability and Proceedings Act, modelled closely on the (United Kingdom) Crown Proceedings Act 1947) which is pari materia to section 26 of the Saint Lucia CPA. This section provides that: “26. (1) This Act shall not prejudice the right of the Crown to take advantage of the provisions of an Act although not named therein; and it is hereby declared that in any civil proceedings against the Crown the provisions of any Act which could, if the proceedings were between subjects, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Crown.”

[108]In Durity, the Judicial Committee described section 33 of the State Liability and Proceedings Act as a saving provision to ensure that the state, when sued, could rely on any statutory defences, such as those under the Public Authorities Protection Act, which could be relied upon by the defendant 'if the proceedings were between subjects'. At paragraphs 27 – 28, the Board helpfully observed: “[27] Section 33 of the State Liability and Proceedings Act is of the nature of a saving provision. This is expressly so with the first limb of s 33 ('This Act shall not prejudice the right of the State …'). Likewise the second limb ('it is hereby declared …') is intended to ensure that the extension of civil liability of the state should not preclude the state from relying on statutory defences which would have been available had the proceedings been between subjects. [28] Affording this protection to the state makes sense easily enough in cases where, before the state itself became liable in tort, negligent employees of the state if sued personally would have had a limitation defence available to them. The Public Authorities Protection Act is an example of this. Despite the imperfections of the Public Authorities Protection legislation, while it remained on the statute books of the United Kingdom and Trinidad and Tobago there was undeniable logic in carrying forward its provisions into the (United Kingdom) Crown Proceedings Act and the equivalent statute of Trinidad and Tobago when the Crown, or the state, became liable in tort. A limitation defence available to a negligent employee of the government should equally be available to the government when the government is sued directly as vicariously liable for its employee's negligence. Hence, s 33 of the State Liability and Proceedings Act, echoing s 31 of the (United Kingdom) Crown Proceedings Act 1947, provides that the state, when sued, may rely upon any statutory defence which could be relied upon by the defendant 'if the proceedings were between subjects'.” Emphasis added

[109]I can only endorse Board’s observations. Under section 26 of the CPA, any statutory defence (such as a limitation of action defence) available to a negligent employee of the Crown should equally be available to the Crown when sued as vicariously liable for its employee's negligence.

[110]However, the position is not as clear in the context of this case. Unfortunately, and despite diligent searches, no authority has been found in which these specific provisions have been considered or addressed. What is clear however is that in this appeal, the respondent would in fact have served the Article 28 Notice on the Attorney General and so the Crown would have had the full benefit of the privilege afforded by that Article. So that even if section 26 of the CPA could be applied (and I accept that I need make no definitive pronouncement on this issue), the appellants would not have been assisted by its application in any event.

Conclusion

[111]In this case the proposed appeal is against the learned Master’s exercise of his discretion in refusing to strike out the claim against the appellants. This Court’s task as an appellate court is to review that decision in accordance with the principles established in the relevant case law50 and refrain from interfering with the judge’s exercise of discretion unless he is clearly wrong, has misdirected himself in law, failed to take into account some material which he ought to have taken into account, or had taken into account a matter which ought to have excluded thereby exceeding the generous ambit within which reasonable disagreement is possible.

[112]For the reasons given above, I have concluded that the appellants have partially met this threshold in this appeal. I am satisfied that the master made errors in law in the exercise of his discretion and that Grounds 1, 2, 3 are made out. Consequently, I am satisfied that the master erred in law when he declined to strike out the claim as against the first appellant. In my judgment, this warrants the Court’s interference. The appellants however have not been successful on Grounds 4 and 5 of the appeal and I am not satisfied that the claim should be struck out against the Crown.

Disposition

[113]For the reasons given above I therefore make the following orders: (1) The appeal is allowed with respect to the first appellant only as defendant, and the order of the learned judge is to this extent set aside. (2) The Claim in the court below is struck out as against the first appellant. (3) The costs order made in the court below against the first appellant is accordingly set aside. (4) Given the findings herein and the consequential outcome, I am satisfied that this appeal should be costs neutral and will therefore make no order as to costs.

[114]It is only left for me to express the Court’s appreciation for the helpful submissions by counsel for the parties, and to express my regret for the delay in delivery of this reserved judgment.

I concur

Margaret Price Findlay

Justice of Appeal

I concur

Gerard Farara

Justice of Appeal [Ag.]

By the Court

Chief Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL SAINT LUCIA SLUHCVAP2022/0022 BETWEEN:

[1]POLICE CONSTABLE BERTRAND NESTOR

[2]THE ATTORNEY GENERAL Appellants and DARAN EDWARDS Respondent Before: The Hon. Mde. Margaret Price-Findlay Justice of Appeal The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.] Appearances: Mr. Seryozha Cenac and Ms. Rochelle John-Charles for the Appellants Ms. Natalie Dabreo for the Respondent _____________________________ 2024: March 13; 2025: February 28. _____________________________ Interlocutory appeal – Appeal against the learned master’s refusal to strike out the claim – Whether the learned master erred in the exercise of his discretion – interpretation and application of Article 28 of the Code of Civil of Procedure Cap 22.08 of the Revised Laws of St. Lucia – Failure to serve Article 28 notice (giving one month’s notice) on public officer before claim is issued – Whether failure to serve Article 28 notice on the public officer is fatal to the claim – Whether notice is required to be served on Attorney General – Whether the learned master failed to have regard to the legal effect of section 13 (2) and section 4(4) of the Crown Proceedings Act of Saint Lucia On 4th August 2020, the respondent filed an amended statement of claim against the appellants alleging that the first appellant, a servant/agent of the Crown had caused him damage and loss. The respondent served the second appellant, with a pre-action notice but failed to serve the first appellant with a pre-action notice as required by Article 28 (“Article 28 Notice”) of the Code of Civil Procedure (“CCP”). As a result on 12th November 2020, the appellants made an oral application to strike out the claim relying on section 4(4) of the Crown Proceedings Act (“CPA”). The oral application was resisted by the respondent, who argued that while the Article 28 Notice was not served on the first appellant, it was served on the Attorney General and that consequently the claim should not be struck out. The learned master contended with two main issues in his judgment delivered on 2nd December 2022. The first issue was whether service of the Article 28 Notice on the Attorney General is sufficient to satisfy Article 28, and the second issue was whether in the circumstances of this case, the Article 28 notice was required to be served on the first appellant. The learned master adopted the reasoning set out in the cases of Bryan James et al v The Attorney General and Danny Allison George v The Attorney General in concluding that the Article 28 Notice having been served on the Attorney General, the claim did not fail. Dissatisfied with the learned master’s decision, the appellants have appealed the order of the learned master on a multiplicity of grounds. Held: allowing the appeal, setting aside the order of the learned master with respect to the first appellant, striking out the claim in the court below as against the first appellant, setting aside the costs order made in the court below against the first appellant and making no order as to costs on the appeal that:

[3]The oral application was resisted by the respondent, who argued that while notice was not served on the first appellant, it was served on the Attorney General and that this was sufficient for the claim to stand based on section 13(2) of the CPA. He contended further that the servants/agents of the second appellant stripped themselves of the right to notice under Article 28 of the CCP when they deliberately, intentionally and maliciously committed illegal acts against the respondent. Thus, the respondent suggested that the question as to whether these acts are proven can only be determined at trial. The Judgment in the Court Below

[4]The learned master contended with two main issues in his judgment delivered on 2nd December 2022. The first issue was whether service of the Article 28 Notice on the Attorney General is sufficient to satisfy Article 28, and the second issue was whether in the circumstances of this case, the Article 28 notice was required to be served on the first appellant. The learned master adopted the reasoning set out in the cases of Bryan James et al v The Attorney General and Danny Allison George v The Attorney General in concluding that the Article 28 Notice having been served on the Attorney General, the claim did not fail.

[5]The learned master observed that in Bryan James, notice was served on the public officer and not on the Attorney General, essentially the opposite of what the respondent had done in this matter. Nonetheless, the learned master made reference to paragraph 27 of the judgment where Pereira CJ stated: “For completeness, lest I be misunderstood, I am not here saying that the Attorney General should not be served with an Article 28 Notice. Indeed I would consider it prudent for the claimant to also serve the Article 28 Notice on the Attorney General based on my later reasoning in respect of the requirement to make the Attorney General the defendant in such proceedings. Rather, the point I am making is that the claim does not fail where a claimant has served the public officer with the article 28 Notice but has failed to similarly serve the Attorney General. It may be arguable that where a claimant serves only the Attorney General with an Article 28 Notice that the claim does not fail but I need not decide this point on this appeal and I refrain from so doing.”

[6]The learned master found the case of Danny Allison George to also be instructive. He cited paragraphs 22 to 25 of the judgment where Smith J stated: “[22] The CPA was later enacted. Section 4(1)(a) makes the Crown liable for the delicts or quasi delicts committed by its servants or agents; and section 13 provides that civil proceedings against the Crown shall be instituted against the Attorney General. The CPA therefore cures the mischief that article 28 was designed to mitigate by providing that the Crown assumes liability for the wrongful actions of its public officers and that any proceedings in respect of such liability must be brought against the Attorney General on behalf of the Crown.

[7]After applying the dicta in these judgments the learned master determined that it was unnecessary to consider the second issue raised in the application which would require him to determine whether the first appellant’s alleged actions were in the course of ‘fulfilling a public duty or function’. He found that this issue would be better left for trial and would be another basis for refusing to strike out the claim. The learned master therefore refused the application by the appellants to strike out the claim form and the statement of claim. The Appeal

7.Under section 26 of The CPA, any statutory defence available to a negligent employee of the Crown should equally be available to the Crown when the Crown was sued as vicariously liable for its employee’s negligence. Even if the provisions of section 26 could be said to apply in this case, in this Appeal the respondent would in fact have served the Article 28 Notice on the Attorney General and so the Crown would have had the full benefit of the privilege afforded by that Article. Section 26 Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Durity v Attorney General of Trinidad and Tobago [2002] UKPC 20 applied. JUDGMENT Introduction

[8]The appellants filed their notice of appeal on 22nd March 2023 containing the following grounds of appeal: (i) The learned master erred in finding that the circumstances in this case were on all fours with the circumstances described in the dicta of the Chief Justice in Bryan James in circumstances where there was no decision rendered by the Court of Appeal in Bryan James on the issue of service of a document purporting to be an Article 28 Notice on only the second named Appellant. (ii) The learned master erred in finding that a document served on the second named appellant purporting to be an Article 28 Notice without that document being served on the first named appellant would satisfy the requirements of the Article. (iii) The learned master erred in law in failing to take into account the effect of the failure of an Article 28 Notice on the public officer, that he or she cannot be sued for damages neither can any judgment be rendered against him or her. (iv) The learned master, in relying on Danny Allison George, failed to have any regard or sufficient regard to the applicants/intended appellants’ reliance on section 4(4) on the Crown Proceedings Act. (v) The learned master erred in law when he failed to analyse and or properly analyse the legal effect of section 4(4) of the Crown Proceedings Act which allows the Crown to rely on any provision which limits or negative the liability of the public officer contained in any enactment together with Article 28 of the Code of Civil Procedure. (vi) The learned master erred in the exercise of his discretion so that his decision is plainly wrong. The Parties’ Submissions The appellants

[2]On 4th August 2020, The respondent filed an amended statement of claim against the appellants pursuant to section 13 of the Crown Proceedings Act (“CPA”) alleging that a servant/agent of the Crown had caused him damage and loss. The respondent served the second appellant (the Attorney General) with a pre action notice but failed to serve the first appellant with a pre-action notice as required by Article 28 of the CPP (“Article 28 Notice”). As a result of this failure to observe the statutory requirements of Article 28, the appellants, relying on section 4(4) of the CPA made an oral application to strike out the claim on 12th November 2020.

[9]Counsel for the appellants submitted that the learned master failed to have proper regard to the joint operation of the section 4(4) of the CPA and Article 28 of the CCP. More specifically, he submitted that the learned master failed to appreciate that the effect of section 4 (4) of the CPA means that the claim as against the appellants cannot be maintained neither can the court render a judgment against them.

[10]Counsel explained that section 4(1)(a) of the CPA provides that the Crown is vicariously liable for the actions of its officers/servants, once the act or omission of its officers/servants would have given rise to a cause of action in delict or quasi-delict against that servant or agent, and section 4(4) of the CPA allows the Crown, the vicariously liable party, to raise any defence which an officer of the Crown could have raised to negative his or her liability had the proceedings been against the officer. Counsel submitted that Article 28 of the CCP which provides for a mandatory condition precedent to the institution of a claim for damages against a public officer namely, the delivery of the notice in writing in the terms stipulated is also a defence which negatives the liability of an officer of the Crown in respect of any delict or quasi-delict committed by that officer if a notice of suit, fulfilling the requirements of the Article, has not been served on him or her personally.

[11]The appellants therefore contends that as the vicariously liable party, the Crown can rely on any enactment which the officer could have utilised to negative his or her liability had the proceedings been brought against him or her (Article 28). They submit that had these proceedings been against the officer solely, invoking Article 28 as a defence would have resulted in a dismissal of the claim against the officer.

[12]They further submitted that Parliament’s intention was clearly to have Article 28 extended to the Crown as it would have applied to the officer. The appellants relied on the dicta of Pereira CJ (as she then was) in Bryan James et al v The Attorney General, where at paragraph 20, she observed that: “…it cannot be disputed that the Crown may take the benefit of an exemption or limitation of liability provided under article 28 of the CCP or indeed any enactment which negatives or limits the liability of a government department or public officer, as may be invoked pursuant to section 4(4) of the CPA."

[13]Later, at paragraph 23 of that judgment, the learned Chief Justice went on to find that [Article 28] is “a built in privilege afforded to the public officer and extended to the Crown by virtue of section 4(4) of the CPA". Counsel submitted that the Court of Appeal having previously addressed the purport and ambit of section 4(4) of the CPA together with Article 28, the learned master was bound to follow same. According to Counsel, Article 28 confers no discretion on the court because it was established on the statement of case that the public officer was acting within the legal exercise of his duties, therefore, if these present proceedings had been proceedings against the public officer only, the notice having not been served personally on him, the claim would have been dismissed.

[14]Counsel for the appellants also took issue with the learned Master’s adoption of Smith J’s reasoning in Danny Allison George which reasoning was prefaced on a perceived rationale in the Bihar Chowdhary & Anr v State of Bihar & Ors . He submitted that the learned master’s reliance on Danny Allison George was misplaced as the court in Bihar Chowdhary & Anr v State of Bihar & Ors was examining a section which, though similar to Article 28, is not equivalent to same.

[15]The appellants further submitted that in failing to construe section 4(4) of the CPA correctly or at all, the learned master failed to give effect to the intention of Parliament. Counsel for the appellants argued that Parliament intended that the pre action notice be served personally on the public officer (CCP). However, there is no requirement that the notice be served on the Attorney General. According to Counsel, Parliament would not have removed the requirement for notice (this important pre-action protocol) to be served on a public officer. Again, they relied on the judgment of Pereira CJ in Bryan James where at paragraph 22 she observed that compliance with Article 28 does not create an absurdity or lead to an unworkable consequence neither does it place it at odds with any provision in the CPA. Parliament’s intention is to have Article 28 maintain its efficacy. If the requirements of that Article are not complied with, such failure is a defence which would be open to the public officer had the public officer been sued. As the Attorney General now stands in the shoes of the public officer the Crown should receive the benefit of this defence by virtue of section 4(4) of the CPA.

[16]Counsel submitted that the language of section 4(4) of the CPA is plain and unambiguous. Applying the learning from Althea Maynard et al v Eastern Caribbean Asset Management Corporation and borrowing the words of Pereira CJ in Bryan James he submitted that there is no need 'for resorting to any rules of interpretation outside the natural and ordinary meaning of the words used'. He concluded that having (1) failed to construe section 4(4) of the CPA correctly or at all; (2) failed give effect to the intention of Parliament and; (3) taken into account irrelevant considerations in arriving at his decision and failing to take into account relevant factors the learned master erred in principle in the exercise of his discretion on the appellants' application to strike. As a result of this error in principle, the learned master’s decision has exceeded the generous ambit within which reasonable disagreement is possible and should be set aside. The respondent

[17]In responding to the grounds of appeal, Counsel for the respondent noted that although the Crown will bear liability in circumstances where the act was done by the individual defendant in the exercise of, or closely connected to his or her functions (See Gordon v The Attorney General) , a claim against a public officer, or other person fulfilling any public duty or function may be distinguished from a claim against the crown. Article 28 of the CCP refers specifically to claims against specific individuals – a public officer, or other person fulfilling any public duty or function. She further noted that the Article makes plain that the notice must state the person’s name and residence and be served personally upon that person or at his or her place of domicile.

[18]If the public officer or other person fulfilling any public duty or function is not joined as a party to the claim then Article 28 is not engaged and he does not need to be served. Counsel for the respondent however further argued that even where the claim against the public officer or other person fulfilling any public duty or function fails for reasons of ineffective service of the Article 28 Notice, the vicarious liability claim against the Crown can still persist. The respondent cited Bryan James at paragraph 28 to bolster this argument reiterating that “there is no requirement expressed or to be implied for service of an Article 28 Notice on the Attorney General in order to maintain a claim for damages against the Crown in respect of a delict or quasi delict committed by a public officer or other servant or agent of the Crown.”

[19]With regard to the application of section 4(4) of the CPA, the respondent submitted that the appellant’s argument is flawed on two levels. Firstly, Article 28 only applies to suits against public officers, or other persons fulfilling any public duties or function, and not suits against the Crown. It cannot be that the intention of the Article is to serve the individual with notice of a suit against the Crown. If in fact, section 4(4) is to be applied to Article 28 and that ‘parliament’s intention is to have section 4(4) extended to the Crown as it would have applied to the officer’, it could only mean that if such a claim is made against the Crown, the Crown is entitled to be given notice as an individual sued would have been entitled to have been given notice. Counsel pointed out that this is precisely what happened in the present matter.

[20]Secondly, the respondent submitted that the first appellant was not entitled to the benefit of Article 28 for reasons stated in the respondent’s statement of claim including unlawful and violent conduct against the respondent. Counsel submitted that although the police officers’ acts against the respondent were closely connected to their duties and function, they were unlawful and could not have been legitimately sanctioned duties of the job. This gives rise to the question as to whether the police officer’s acts were committed in the fulfilment of any public duty or function and whether the first appellant’s acts were sufficiently closely connected to his employment as to make the Crown liable. The respondent suggested that these questions can only be decided on the evidence led at trial and so the learned master was correct to refuse the strike out application. Appellant’s reply submissions

[21]In reply, the appellants further amplified the import of Article 28 arguing that Article 28 of the CCP is a provision which provides for immunity from suit and judgment being rendered against the public officer. They cited in support the dicta in Charter Capital Limited v National Bank of Anguilla et al and concluded that the immunity afforded by Article 28 is “a freedom from the legal obligation to perform actions or to suffer penalties….the court’s own jurisdiction is circumscribed by legislative will where such immunity is legislated.”

[22]On that basis, the appellants argued that it would undermine the intent of the legislature if the Court goes behind pleadings which accept (as in the present case), that the public officer was acting as a servant or agent of the Crown. According to Counsel for the appellants if it is accepted that the police officer was acting within the legal exercise of his function and as a servant or agent of the Crown then Article 28 applies.

[23]Section 28 of The CCP has, however, not been repealed and the Court must therefore give effect to it. In doing so, the Court must attempt to ensure that article 28 reads harmoniously with the CPA and not lead to an absurdity or injustice not intended by the Legislature. If the purpose of the article 28 notice is to give the ultimate responsible party (the state) time to assess a claim and possibly avoid unnecessary, costly litigation for The public good, it would lead to an absurdity if a claim fails for doing precisely that, namely, directly giving the Attorney General the required notice instead of the public officer for whom the state is vicariously liable. Beyond the absurd, it would lead to grave injustice if a claim were to fail because a claimant does not serve notice upon the public officer but Instead serves the Attorney General who the notice in any event, is intended to benefit and facilitate.

[24]I therefore conclude that for the purpose intended by Article 28 of the CCP a claim does not fail if the notice is served upon the Attorney General instead of upon the Public officer who it is alleged committed the wrongful act. this interpretation, in my view, and for the reasons outlined above, avoids an absurdity and injustice while at the same time achieving the ultimate ends for which the article was intended.”

[25]In this appeal, the question to be considered is whether the learned master erred in law when he determined that the respondent’s claim against the appellants did not fail as a result of the respondent’s failure to serve the first appellant (the public officer and principal tortfeasor) with the pre-action notice mandated under Article 28. In my view, this requires a staged analysis of several relevant statutory provisions. I do not think that this question can be answered by examining these provisions in isolation and without regard to the overall context in which they were enacted. The Code of Civil Procedure

[26]The Saint Lucia Code of Civil Procedure has some significant vintage. When it came into force in 1882, it included Article 28 in its present-day formulation. This article lays down the procedure where suits are brought against a public officer and provides that: "No public officer, or other person fulfilling any public duty or function, can be sued for damages by reason of any act done by him or her in the exercise of his or her functions, nor can any judgment be rendered against him or her, unless notice of such suit has been given him or her at least one month before the issuing of the writ of summons. Such notice must be in writing, it must specify the grounds of the action, must be served upon him or her personally, or at his or her domicile, and must state the name and residence of the plaintiff."

[27]The effect of this provision is clearly to impose a bar against the institution of a suit in damages or the entry of any judgment against a public officer or other person fulfilling any public duty or function in respect of any act purported to be done by him in his official capacity unless written notice of such suit has been served on him of her personally at his domicile at least one month before the suit is issued.

[28]Article 28 of the CCP has been the subject of judicial consideration in a number of judgments. As far back as 1902, the St. Lucia Gazette recorded the judgment in Evelyn v Gray et al in which the St. Lucia Royal Court considered an appeal against the decision of the magistrate of the District Court in which he non-suited the plaintiff/appellant on the ground that he had not complied with the requirements of Article 28 of the CCP. The Court held that the magistrate properly declined to entertain the claim for damages against the respondent. However, in the absence of notice required to be given under Article 28 of the CCP, the court found that the magistrate should have taken evidence and come to a decision with respect to money paid by the appellant under protest. The magistrate’s decision would be confirmed but the case was returned to the District Court so that evidence could be received and for the court to adjudicate on that point.

[29]The legislative context in which Article 28 would have been proclaimed in 1882 is critical to the outcome of this appeal. The Code of Civil Procedure 1879 would have been enacted by the Governor with the advice of the Legislative Council of Saint Lucia. It would have come into force when it was approved by Her Majesty the Queen and became law when it was proclaimed by the Governor of Saint Lucia (then a colony of England) in 1882. At the time when the CCP would have been proclaimed, it would have been out of the question for the Crown (the sovereign of both the United Kingdom and Saint Lucia) to have been joined as a defendant to any claim. Only the crown servant or public officer would have been sued and therefore it would only have been necessary for him/her to be served with the requisite notice.

[30]The Crown’s immunity was exemplified by the maxim, “the King can do no wrong”. The Crown could not commit a tort; and nor could it be held vicariously liable for the torts of its servants based on the fiction that the wrong of the servant was the wrong of the master. But the maxim also meant that Crown servants could not justify their tortious actions by arguing that they had been ordered so to act by the Crown: “[F]rom the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong.”

[31]It was however accepted that the Crown had a moral obligation to correct wrongs done to its subjects, just as those subjects were obliged to correct wrongs they did to each other. A complex system was therefore developed by which the plaintiff would first submit a petition of right, seeking redress for their grievance. If the monarch consented to its adjudication by endorsing the petition with the words fiat justitia (let justice be done), then the claim could be adjudicated in court. This procedure however had critical limitations – it could not be used to seek remedies in tort. Given that there was no other procedural vehicle to bring a tort claim against the Crown; the practical result was that, at common law, the Crown remained immune from claims in tort.

[32]In Conseil des Ports Nationaux v Langelier , the Supreme Court of Canada summarised the common law in four propositions: “First is the proposition that the Crown itself could not be sued in tort. Second is the proposition that Crown assets could not be reached, indirectly, by suing in tort, a department of government, or an official of the Crown. … Third is the proposition that a servant of the Crown cannot be made liable vicariously for a tort committed by a subordinate. The subordinate is not his servant but is, like himself, a servant of the Crown which, itself, cannot be made liable. Fourth is the proposition that a servant of the Crown, who commits a wrong, is personally liable to the person injured.”

[33]Of course, tortious liability of public officials could never be a complete substitute for Crown liability and so in 1947, the United Kingdom embarked on major reforms to Crown liability which resulted in Crown Proceedings Act 1947. This Act was replicated in Saint Lucia in 1956 and subjected the Crown to liability in tort, abolishing the requirement of a royal fiat and eventually eliminated the need to file a petition of right. Section 4 of that Act provides that: ”4. – (1) Subject to the provisions of this Act, the crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject – (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate. (2) Where the crown is bound by a statutory duty which is binding also upon persons other than the crown and its officers, then, subject to the provisions of this Act, the crown shall, in respect of a failure to comply with that duty, by subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity. (3) Where any functions are conferred or imposed upon an officer of the crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the crown. (4) Any enactment which negatives or limits the amount of the liability of any government department, or officer of the crown in respect of any tort committed by that department or officer shall, in the case of proceedings against the crown under this section in respect of a tort committed by that department or officer, apply in relation to that department or officer if the proceedings against the crown had been proceedings against that department or officer. (5) No proceedings shall lie against the crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which lie has in connection with the execution of judicial process. (6) No proceedings shall lie against the crown by virtue of this section in respect of any, neglect or default of any officer of the crown, unless that officer has been directly or indirectly appointed by the crown and was at the material time paid in respect of his duties as an officer of the crown wholly out of the revenue of The Bahamas or was at the material time holding an office in respect of which the minister for the time being responsible for finance certifies that the holder thereof would normally be so paid.”

[34]The proviso to section 4(1) makes clear that under the CPA, no right of action exists against the Crown in tort unless the act or omission would, apart from the provisions of the Act, give rise to a cause of action in tort against that servant or agent or his estate in respect of whom it is alleged that vicarious liability arises against the Crown.

[35]Procedurally, section 13 of the CPA makes clear that in a suit by or against the Crown, the authority to be named as claimant or defendant is the Attorney General. These provisions remain in force today and there are two important factors which must be noted. Firstly, although other jurisdictions would have taken the necessary steps to adjust the procedural provisions to ensure consistency with the new liability regime, Saint Lucia did not. No consequential amendments were made to the CCP mandating that in a suit against the Crown that the Attorney General should be also served with an Article 28 Notice.

[36]It is not surprising that this oversight has resulted in a multitude of avoidable legal challenges. Where litigation engages the Crown and its servants or agents, the pre action notice or protocol is a commendable tool which is aimed at encouraging the early exchange of information between parties involved in a potential legal dispute, enabling them to try and resolve the issue through negotiation and settlement before initiating formal court proceedings, thereby reducing costs and streamlining the litigation process. In light of this, it is my view that Parliament ought to have made the necessary legislative changes to put this matter beyond doubt.

[37]The reality of this lacuna is confirmed in Bryan James where, at paragraph 1 of the Held, the Court applied the judgments in Bertha Compton v Dr. Nathaniel et al ; General Aviation Services Ltd et al v The Director General of the Eastern Caribbean Civil Aviation Authority et al and stated that: “The language of article 28 of the CCP is clear and thus says what it means without the necessity for resorting to any rules of interpretation outside the natural and ordinary meaning of the words used. In order to bring a suit against a public officer for damages, a claimant must serve notice of the intended suit on the public officer personally or at his domicile. While it would be prudent for a claimant to also effect service of an Article 28 Notice on the Attorney General, article 28 itself does not speak to service upon the Attorney General. It does not say in terms that notice must be served on the Attorney General nor is any reference whatsoever made therein to the Attorney General. There is therefore no requirement expressed or to be implied for service of an Article 28 Notice on the Attorney General in order to maintain a claim for damages against the Crown in respect of a delict or quasi-delict committed by a public officer or other servant or agent of the Crown. A claim does not fail where a claimant has served the public officer but has failed to similarly serve the Attorney General.” Emphasis added

[38]On a proper reading of Article 28, the wording is clear and must therefore be given its plain ordinary meaning. Article 28 is clearly enacted for the benefit of the named party i.e. the public officer, or other person fulfilling any public duty or function. Given the historical legislative context in which it came into force, it is clear that the drafters could not have intended to impose a similar pre-action protocol in regard to the Crown or the State. This is because at the time that the CCP would have been promulgated, the legal landscape in regard to liability of the Crown would have been quite different.

[39]In the wake of the CPA, it was open to the Saint Lucia legislature to make the necessary legislative amendments which would make plain that a pre action notice would also need to be served on the Crown when joined as a defendant to a claim. However, this was not done and so the CCP does not impose a similar obligation on a claimant to give notice of intended action to the Crown. This is not the case in many other jurisdictions such as in India where section 80 of the India Code of Civil Procedure 1908 provides: “80. Notice (1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of— (a) in the case of a suit against the Central Government, [except where it relates to a railway] a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf; (c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. “Emphasis added.

[40]I reiterate that Article 28 lays down the procedure where suits are brought against public officers or individuals who are fulfilling a public duty or function. The provision is imperative in its language. It clearly affords protection to public officers. According to the Judicial Committee of the Privy Council (considering section 80 of the Indian Civil Code of Procedure) in Bhagchand Dagadusha Gujarati and Ors. vs Secretary of State for India “this protection takes the form of providing a fixed and obligatory interval of two months between the required notice and the commencement of any suit…”.

[41]The Article absolutely bars a court from entering judgment against a public officer or indeed entertaining a suit which has been instituted without compliance with its provisions. The judgment in Bhagchand Dagadusha Gujarati and Ors. is just one of many which has pronounced on the consequences of failure to serve a pre-action notice when it is a mandated condition precedent for the commencement of a suit. It follows that failing to serve the pre-action notice (where it is required), renders the action premature. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with the pre-action notice. The Board in Bhagchand Dagadusha Gujarati and Ors. described the consequence in the following terms: “The consequence is that the appellants’ present position in regard to the taxes imposed on them is as if their action had never been brought. It is unsustainable in limine. They commenced their suit before the law allowed then to sue, and can get no relief in it either by declaration or otherwise….They have taken their own course and have brought this result on themselves.”

[42]The service of this notice on a public officer or a person fulfilling public duties or function is therefore a prerequisite, essential to the success of legal proceedings. If it is not given, the claim against that public officer must be rejected, struck out and dismissed and the court cannot issue any award for damages. This has consistently been the approach adopted by the courts in this jurisdiction since Evelyn v Gray.

[43]In this appeal, the learned master made two critical findings which in my judgment disclose an error of law. First, he determined that the facts in this case were “on all fours with the circumstances described in the dicta of the Chief Justice in the Bryan James consolidated appeals…” This is clearly not the case. At paragraphs 1 – 3 of the headnote in Bryan James the facts are recounted as follows: “Civil appeal nos. 23 and 24 of 2013, (“the James Claims and where appropriate the James Parties”) were commenced by claim forms issued on 12th June 2012 for damages and other relief as a result of alleged wrongful searches, seizure and detention of goods and documents from the James parties’ personal and business premises on 14th October 2009, by a team of officers from the Customs and Excise Department. Prior to the issuance of the claim forms, the Comptroller of Customs (“the Comptroller”) and the James Parties had attempted an amicable resolution of the matter but to no avail. On 2nd April 2012, the James Parties gave to the Comptroller, a notice of intended suit (“Article 28 Notice”) in purported compliance with article 28 of the Code of Civil Procedure of Saint Lucia (“the CCP”). There is no assertion that the Article 28 Notice was defective either in form or substance or as to conformity with article 28 of the CCP. The James Parties did not however give to the Attorney General an Article 28 Notice. On 25th October 2012, an amended claim form was filed substituting the Attorney General as defendant in place of the Comptroller. This was done well before the first case management conference which took place in September 2013, but the amendment was effected after a period of three years had elapsed from the date of commission of the alleged delicts. …The Attorney General contended in their defences filed on 16th November 2012 to the James Parties ‘amended claims, among other things, that the failure to serve the Attorney General with an Article 28 Notice was fatal to the claims… In the proceedings which gave rise to Civil appeal no. 21 of 2014, (“the Fast Kaz Claims and where appropriate the Fast Kaz Parties”) a suit was also initially brought in the name of the Comptroller who was given an Article 28 Notice. It is common ground that Fast Kaz Parties had not given to the Attorney General an Article 28 Notice. Following the setting aside of a judgment in default against the Comptroller, permission was sought and granted for the substitution of the Attorney General in place of the Comptroller as the defendant in the claims. The Attorney General, in her defences to the claims did not however raise the issue of the requirement of giving her an Article 28 Notice. It was the Fast Kaz Parties who, in their application for substitution of the Attorney General in place of the Comptroller, sought also a declaration to the effect that the giving of the Article 28 Notice to the Comptroller was ‘proper notice on the Attorney General’ in regard to the proceedings.”

[44]Clearly, the Court of Appeal in Bryan James was not required to pronounce on the issue of service of an Article 28 Notice on the Attorney General only. Indeed, at paragraph 27 of the judgment the learned Chief Justice records the following statement: “For completeness, less I be misunderstood, I am not here saying that the Attorney General should not be served with an Article 28 Notice. Indeed I would consider it prudent for the claimant to also serve the Article 28 Notice on the Attorney General based on my later reasoning in respect of the requirement to make the Attorney General the defendant in such proceedings. Rather, the point I am making is that the claim does not fail where a claimant has served the public officer with the Article 28 Notice but has failed to similarly serve the Attorney General. It may be arguable that where a claimant serves only the Attorney General with an Article 28 Notice that the claim does not fail but I need not decide this point on this appeal and I refrain from so doing.” Emphasis added

[45]In this appeal, the respondent served the Article 28 Notice on the Attorney General but failed to serve the public officer. This factual scenario is not on all fours with what obtained in the Bryan James appeals. Where, as in this appeal, the public officer has not been served with the Article 28 Notice, the sanction is well established – the claimant loses his right to sue the public officer against whom he claims damages and the court cannot issue any award for damages in his favour.

[46]The second problematic finding of the learned master is set out in paragraph 12 of the judgment where he concluded that (notwithstanding that the public officer was not served) service of the Article 28 Notice on the second appellant (the Attorney General) would mean that the claim would not fail. In defining their second ground of appeal, the appellants take issue with this finding.

[47]Given the clear wording of Article 28, I am satisfied that effective service on the public officer could only be as prescribed in that article. The notice must be served upon the public officer personally. I am further satisfied that service on the Attorney General would not suffice for that purpose. It is common ground between the Parties that the respondent did not serve the Article 28 Notice on the first appellant who is the public officer and the principal tortfeasor. It follows then that the claim against the first appellant would be unsustainable and should have been dismissed by the learned master.

[48]I therefore find that in failing to dismiss the claim as against the first appellant, the learned master made critical errors of principle which warrant this Court’s intervention. Proof of Bona Fides

[49]Although the respondent concedes that the first appellant is a servant of the crown, and that the actions of the police were closely connected with their functions and duties, he does not agree that they were executed in bona fide and legal fulfilment or exercise of any public duty or function. Counsel for the respondent submitted that a court can only decide these issues on evidence and so any pre-trial application to strike out for failing to serve an Article 28 Notice on the first defendant in the instant circumstances must fail. She cited in support the judgment in Gordon v. The Attorney General. In that case, the plaintiff claimed damages on behalf of the estate of his son who had been killed by police officers. The statement of claim alleged that the police officers in the course of their duty as servants or agents of the Attorney-General had maliciously and without reasonable or probable cause shot the deceased and killed him. The Attorney-General obtained an order from Bingham J striking out the action as being statute-barred under the Public Authorities Protection Act, section 2(1) (a) (requiring actions in respect of acts done in the execution of a public duty to be commenced within one year). That order was upheld by the Court of Appeal. On further appeal, the Judicial Committee of the Privy Council held that the Crown might be liable for the acts of the police officers on the principle of respondeat superior if they were not acting bona fide in the execution of their duty. After noting that the statement of claim had raised two issues (i.e. whether the police officers had been acting bona fide in the execution of their duty and, if they had not, whether the Crown was nonetheless liable for their actions) the Board concluded that neither issue could be resolved without a trial and, accordingly, the writ should not have been struck out.

[50]The first point in that appeal turned on section 2(1) of the Jamaican Public Authorities Protection Act which provided as follows: 'Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance, or execution, or intended execution, of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty, or authority, the following provisions shall have effect – (a) the action … shall not lie or be instituted unless it is commenced within one year next after the act … complained of …’

[51]The Board observed that a critical question arises as to the meaning and scope of 'any act done in pursuance, or execution, or intended execution … of any public duty'. Noting that the mere allegation of malice does not deprive the defendants of the protection of the Act; the Board determined that on the facts of the case before it, it certainly raised an issue to be tried. The Board accordingly concluded that this was not an appropriate case for striking out.

[52]The Board further held that, notwithstanding the provisions of section 33 of the Constabulary Force Act (allegation of malice in actions against police officers), section 2(1) of the Public Authorities Protection Act did not accord protection to police officers when they were not acting bona fide.

[53]I am not persuaded that the judgment in Gordon v The Attorney General (decided on a different legislative matrix) assists the respondent. The language expressed in Article 28 of the CCP is clear. It does not require proof of bona fides. The provision is satisfied if it is alleged that the act done by the public officer was in the exercise of his or her function so that if the act alleged was one such as is ordinarily done by the officer in the course of his official duties then the provision is satisfied. I find strong support for this conclusion in a number of cases where the relevant legislative matrix more closely resembles the case in this appeal.

[54]In Kirby v Simpson the plaintiff commenced an action against a magistrate for having, in the execution of his office, acted maliciously and without reasonable and probable cause. At the close of the plaintiff’s case, it was contended on the part of the defendant that he was entitled to notice of action under the Justices Protection Act 1848 s 9 (repealed); and that, as no notice had been given, the plaintiff must be nonsuited. On the part of the plaintiff it was contended, that there was evidence that the defendant had used his office colorably, and that the question whether the defendant was entitled to notice depended upon his having done what he did in the bona, fide belief that he was acting as a magistrate, which was a question for the jury. The learned Judge, however, thought that the defendant was entitled to notice, and that there was no such question for the jury. He accordingly nonsuited the plaintiff. On appeal, the English Court of Exchequer held that in such case, the question whether he acted bona fide, or used his office colourably, did not arise.

[55]The salient reasoning was found in the judgment of Parke B at page 486 of the report where he stated: “The 9th section says, that "no such action shall be commenced against such justice of the peace, until one calendar month at least after a notice in writing of such intended action," &c.; and in order to see what is meant by the words ” such action," by referring to the previous section (sect. 8), we find that ” no action shall be brought against any justice of the peace for anything done by him in the execution of his office, except the same be commenced within six calendar months," &c.; so that, taking these sections together, it is clear that a person may act maliciously, and yet act in the execution of his office as a justice of the peace, and that in such case notice must be given to him. The learned Judge therefore acted rightly in nonsuiting the plaintiff, in the absence of notice.”

[56]The judgment in Kirby was considered in a line of Indian cases in which section 80 of the Indian Civil Procedure Code was considered starting with the appellate judgment of the Madras High Court in Samanthala Koti Reddi vs Pothuri Subbiah and Ors where a Full Bench held that a public officer is entitled to notice of suit under Section 80 of the Civil Procedure Code, even, if in the discharge of his duty, he has acted mala fide. The judgment of Spencer J summarised the court’s reasoning succinctly where he stated: “When it is the intention of Government to protect official and judicial acts done by public servants in good faith, the Legislature makes use of the words 'good faith", as may be seen from Sections 76 to 79 and 99 of the Indian Penal Code, Section 156, Clause 4, of the Local Boards Act and Section 1 of the Judicial Officers' Protection Act. But in Section 80, Civil Procedure Code, there is no qualification that the act must be one done in good faith to entitle the officer concerned to notice. In practice it would not always be easy at the stage of issuing notice to determine whether good faith existed before that question had been decided at the trial. Government undertakes the defence of their servants in actions brought against them personally for official acts done by them in cases where those acts are deemed defensible. The issue of notice gives time to the public officer to make amends for his act or to report the case to Government and get himself defended at the public cost. So notice is made compulsory in all suits against public servants for acts done officially.”

[57]That reasoning confirms the view which I have taken of the words in Article 28. As indicated, I am therefore unable to agree with the submission that it was not necessary for the respondent to give the notice, prescribed by Article 28 before bringing a suit against the first appellant, because it was proved that, although he purported to act in his official capacity as a public officer, he had acted mala fide.

[58]On this issue the only question is whether the arrest of the plaintiff was an act purporting to be done by the defendant as a public officer in his official capacity. Judging from the pleadings, this does not appear to be in dispute. Consequently, the suit could not be instituted until the expiration of one month next after notice in writing was given. Inasmuch as no notice was given, the claim against the police officer would fail. The claim against the Attorney General

[59]The question which remains to be determined is whether the dismissal of the claim as against the public officer automatically means that the claim against the Attorney General should have been dismissed. The starting point in this analysis begins with the respondent’s statement of claim. In the amended statement of claim filed on 4th August 2020, the respondent makes clear that the first appellant was acting at all material times as a police officer attached to the Special Services Unit (SSU) of the Royal Saint Lucia Police Force and was a servant or agent of the Crown. He further contends that the second named appellant is joined as a party to the present claim pursuant to section 13 of the CPA. Is the Attorney General the Crown?

[60]Procedurally, section 13(2) of the CPA makes clear that in a suit by or against the Crown, the authority to be named as claimant or defendant is the Attorney General. It provides that: ‘Civil proceedings against the Crown shall be instituted against the Attorney General.’

[61]During the course of legal submissions before this court, counsel for the appellant submitted that that the Attorney General, for the purposes of the CPA, was not the Crown or part of the Crown. The parties were invited to provide supplemental legal submissions on this issue and in written legal submissions. Counsel for the appellant submitted that in order for the Article 28 Notice to be effectual, it cannot be served on the Attorney General, as the Attorney General exercises no executive power and does not act in an executive capacity. Therefore, the Attorney General is not ‘the Crown’ or ‘part of the Crown’ for the purposes of the CPA, more specifically, sections 4, 10 and 26.

[62]Accordingly, counsel submitted that the Attorney General is not an appropriate substitute, legal or otherwise (practically), for effecting service of the Article 28 Notice, nor is either of his law officers. Counsel further submitted that if one were to equate ‘the Crown’ with the term ‘the Government", the Attorney General, by virtue of his constitutional office, is the principal legal adviser to the Government/the Crown. By virtue of this provision, the Attorney General is not the Crown or the Government, but merely its legal advisor, save on the occasion that he/she also holds the office of minister in accordance with section 72 (2) of the Constitution of Saint Lucia .

[63]I find no merit in these submissions.

[64]Section 8 of the Saint Lucia Interpretation Act provides that in any Act references to the Sovereign reigning at the time of the passing of the Act or to the Crown shall, unless the contrary intention appears, be construed as references to the Sovereign for the time being.

[65]It is an established constitutional principle that the Crown can and does act in different capacities in relation to different parts of the realm. This occurs where a distinct government of His Majesty has been lawfully established. Where this occurs, (as in the case of St. Lucia), the government of His Majesty in constitutional terms is often described as “the Crown in right of the Government of St. Lucia”. This is however the same as the government in question.

[66]This position is confirmed in savings clause prescribed under section 30 of the CPA which provides that: “30. (1) Nothing in this Act shall apply to proceedings by or against, or authorise proceedings in tort to be brought against, Her Majesty in Her private capacity. (2) Except as therein otherwise expressly provided, nothing in this Act shall— (a) … (b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of Her Majesty’s Government in Saint Lucia; or affect proceedings against the Crown in respect of any such alleged liability as aforesaid; (c) affect any proceedings by the Crown otherwise than in right of Her Majesty’s Government in Saint Lucia…”

[67]In Town Investments Ltd and others v Department of the Environment Lord Diplock writing for the English House of Lords traced the transformation over the centuries of the relationship between the monarch and ministers and civil servants from that of personal rule by a feudal landowning monarch to the constitutional monarchy of today. Lord Diplock provided significant clarity on this issue when he stated that: "To speak nowadays of "the Crown" as doing legislative or executive acts of government, which, in reality as distinct from legal fiction, are decided on and done by human beings other than the Queen herself, involves risk of confusion. It would be better, instead of speaking "the Crown." To speak of "the government – a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. Executive acts of government that are done by any of them, in the name of Her Majesty or other their official designation, are acts done by "the Crown" in the fictional sense in which that expression is now used in English public law."

[68]In M v Home Office the Court of Appeal applying the dicta in Town Investments Ltd and another explained the rationale for joining the Attorney general when suing the Crown/government when he observed that ‘“The Government" is of course far from fictitious, but it too lacks legal personality. The court went on to observe that “Parliament and the common law could well have conferred such personality upon either or both, but instead other devices have been adopted to enable justice to be done between the Government and the citizenry”. At page 301 Lord Donaldson cited one of these relevant devices… “In the field of private law it was sometimes possible to sue the Attorney-General on behalf of the Government….In 1947 it was decided that the time had come to some extent to rationalise and expand the methods whereby disputes with government and its departments could be resolved and at the same time to extend their liabilities into the field of torts. Hence the Crown Proceedings Act 1947. it did not give "the Crown" or government ministries legal personality. …It merely enabled aggrieved citizens to sue authorised government departments in their own name and other emanations of Government in the name of the Attorney-General: see section 17. In this it was developing an earlier statutory approach which enabled some, but not all, government departments to sue and be sued in their own names.”

[69]Section 13 (2) of the CPA therefore prescribes (from a procedural standpoint) how the Crown in right of Her Majesty’s Government may be sued. The Act makes clear that the authority to be named as defendant is the Attorney General. The Attorney General may well be the principal legal advisor of the Government but under section 13 (2) of the CPA, he has been statutorily designated as the nominal defendant when suing the Crown in right of Her Majesty’s Government in Saint Lucia.

[70]There is therefore no personal or primary liability which attaches to the Attorney General. The operating liability here is vicarious and it attaches to the Crown. This position has been made clear by the Caribbean Court of Justice (CCJ) in the judgment in Basil Williams v Attorney General of Guyana et al. At paragraphs 15 – 18 of the judgment, Saunders PCCJ explained the historical context and the doctrine of vicarious liability in this way: “[15] … In the United Kingdom, prior to the passage of the UK Act, a person injured by the tortious act or omission of Crown servant had to sue the particular Crown servant and was unable to sue the Crown. The informal practice was that in ‘a proper case’ the Crown would ‘stand behind’ and defend its servant and pay any damages awarded. This practice was not without its problems. Difficulties arose where it was not possible to identify the allegedly errant Crown servant or where a Crown servant was artificially nominated to be sued. To address these challenges, the UK Act was enacted to make the Crown vicariously liable in tort for the acts of their servants and agents. Section 2 of the UK Act is similar to s 3 of the Act. Both sections impose liability on the Crown (the State in the case of republican Guyana) in cases where torts are committed by the agents or servants of the Crown, or State as the case may be, in the course of the execution of their duties. Claimants in such cases are therefore assured that there is a solvent party against whom any damages awarded might be enforced.

[71]At this point I must emphasise the following observation of Hogg, Monahan, and Wright in their text Liability of the Crown “a plaintiff who sues the Crown for the tort of a Crown servant need not bring proceedings against the servant personally (although sometimes the plaintiff will see advantages in adding the individual servant as a defendant).”

[72]It is accepted that in order to prove vicarious liability, the claimant must first prove the commission of a tort by a servant. Denning LJ explained the position in the following terms: “… to make a master liable for the conduct of his servant, the first question is to see whether the servant is liable. If the answer is “yes”, the second question is to see whether the employer must shoulder the servant’s liability.”

[73]Vicarious liability of the employer therefore arises only on the primary liability of the servant.

[74]There can be no doubt that in an action for tort the principal tortfeasor/servant is a proper defendant. It is equally true that the person who is liable for the acts of the principal tortfeasor/servant or to whom liability has passed vicariously is also a proper defendant. The question which arises in this context is whether the principal tortfeasor/crown servant is required to be joined as a defendant in a suit which seeks to secure a judgment against the Crown/employer on the basis of vicarious liability?

[75]In my view, the answer must be no – a claimant is not obliged to join the principal tortfeasor/crown servant as a defendant in such proceedings. In Part 59 Civil Procedure Rules (Revised Edition) 2023 (“CPR”) ‘ which regulates the procedure when proceedings are brought by or against the Crown, rule 59.3 (1) makes clear the claimant’s remit – “If a claim is made against the Crown, the claim form or statement of claim must contain reasonable information as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the government department and officers of the Crown involved.” If the legal proceedings against the Crown satisfy CPR Part 59.3(1) then the court before whom the case is listed will have to decide it as between the parties before it.

[76]Generally, an action against an employer for the conduct of an employee during the scope of employment, under the doctrine of respondeat superior, may be brought solely against the employer and need not include the employee. An employer may be held solely liable for the entire harm caused by its employee under such circumstances. While primary liability of the crown servant must be proved, the suit against the Crown is no less viable if the servant is not joined as a co-defendant in the action. One reason for this is that it is not always possible or indeed necessary to sue that person. Recognising that it may be difficult or impossible to positively prove which one of several servants was tortious (what may be described as “collective failures”), courts have nevertheless found employers vicariously liable.

[77]I would go further to say that even where the claim against the officer is struck out not on the merits but for non-service of the Article 28 Notice; it may still be possible to maintain the vicarious liability claim against the Crown once the pleadings contain reasonable information as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the government department and officers of the Crown involved.

[78]Although, it can only rise to the level of persuasive precedent, the reasoning and dicta of the supreme court of Arizona in the 2023 judgment of Laurence v. Salt River Project Agricultural Improvement & Power District I believe is instructive. In Laurence, the Arizona Supreme Court held that dismissing a claim against an employee with prejudice, for reasons unrelated to the merits of that claim, does not require the dismissal of the respondeat superior claim against the employer.

[79]In that case, Jacob Laurence and his minor son were injured in a motor vehicle accident involving a truck owned by Salt River Project (“SRP”) and driven by its employee. The plaintiffs alleged the employee’s negligent driving caused the accident, and the driver was in the course and scope of his employment at the time of the accident. As such, the plaintiffs alleged SRP was negligent under the theory of respondeat superior. Because SRP is a political subdivision of the State of Arizona, a claim against SRP must be filed within one hundred and eight (180) days. The plaintiffs timely filed a claim against SRP but did not file a claim against the employee driver until almost fifteen (15) months post-accident. The superior court granted the employee driver’s motion for summary judgment against Laurence due to failure to file the claim timely. SRP then filed a motion for summary judgment, arguing since the claim against its employee was dismissed, SRP could not be held vicariously liable for the employee driver’s negligence.

[80]The plaintiffs responded that since summary judgment was granted for reasons unrelated to the merits, SRP could still be found vicariously liable. However, in making its arguments, SRP relied on the earlier judgment in DeGraff v. Smith where the Court dismissed a claim against an employee with prejudice for any reason, exonerates the employee from negligence and simultaneously adjudicates the claim against the employer.

[81]The Supreme Court of Arizona found several compelling reasons to overturn DeGraff. First, the Supreme Court found the ruling in DeGraff to be “clearly erroneous or manifestly wrong.” The DeGraff majority correctly treated the dismissal of the claim against the employee with prejudice as an “adjudication on the merits” but, according to the majority in Laurence, it failed to explain why that meant the employee had “been adjudged as not guilty of any negligence” so as to preclude a respondeat superior claim against the employer. In Laurence, the Supreme Court ruled that a dismissal with prejudice does nothing more than bar refiling the same claim in the same court, no matter the basis for the dismissal. The dismissal does not bar a separate claim against another party.

[82]Second, the Court found that DeGraff conflicts with Arizona statute and case law which provide that, under the doctrine of respondeat superior, an employer is vicariously liable for its employees’ tortious acts, not adjudicated liability. Third, the Court found DeGraff in opposition to the recognition that employers sued under respondeat superior cannot assert defences that are personal to the employee. The respondeat superior claim, the Court explains, is “freestanding.” When a plaintiff violates an employee’s procedural rights, that defence is personal to the employee and cannot be asserted by the employer. Fourth, the Court found that public policy does not support upholding DeGraff. The Court concluded that unless the finder of fact finds the employee did not commit a tort, or possibly that plaintiff released the employee from liability, it is fair to allow the respondeat superior claim to proceed.

[83]I completely agree with the reasoning of the court in DeGraff and given the obvious similarities in the facts of this case I believe that the reasoning should be positively applied. Dismissing the claim against the public officer on the basis of non-service of the Article 28 Notice is not a dismissal on the merits and should not affect the viability of the respondeat superior claim against the Crown.

[84]Having considered the respondent’s pleaded case, it is clear that the officer is identified and the impugned actions identified. Moreover, the relationship between the officer and the Crown is pleaded as well as the basis of Crown liability under the CPA. I would therefore have some difficulty with applying the approach taken by the learned Judge in the Peter Clarke matter in which she concluded that the consequences of giving a defective Notice or no Notice is fatal to claimant’s action against all of the defendants. The Application of Section 4 (4) of the Crown Proceedings Act

[85]In this appeal, the appellant placed considerable reliance on section 4 (4) of the CPA which provides that: “Any enactment which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any delict or quasi-delict committed by that department or officer shall, in the case of proceedings against the Crown under this section in respect of a delict or quasi-delict committed by that department or officer, apply in relation to the Crown as it would have applied in relation to that department or officer if the proceedings against the Crown had been proceedings against that department or officers."

[86]Counsel for the appellant submitted that the learned master failed to analyse or properly analyse the legal effect of that section which allows the Crown to rely on any provision which limits or negatives liability of the public officer in any enactment together with Article 28.

[87]The critical issue which arises is whether the second appellant can take the benefit afforded to a public officer by Article 28 on the basis that it has been extended to the Crown by virtue of section 4 (4) of the CPA. Subsection 4 (4) essentially states that any legal provision which limits the liability of a government department or Crown officer in relation to a tort will also apply to the Crown when being sued under this section. This means that the Crown is treated as if it were that specific department or officer in terms of liability limitations for that particular tort.

[88]This is not unreasonable as it effectively makes the Crown subject to the same restrictions as its individual officers or departments would be under similar circumstances. This section ensures that the Crown cannot be held liable beyond the limits imposed on individual government departments or officers when a tort is committed. So that if a specific law restricts the liability of a government department or officer in a particular type of tort case, that same limitation will apply when suing the Crown for that tort.

[89]It is reasonable that, where Parliament has deliberately decided that servants of the Crown are entitled to certain protection in carrying out their duties, the Crown should enjoy the same protection in the case of proceedings in respect of the acts of those servants. In the United Kingdom, examples of such provisions were found in section 23(4) of the Post Office Act, 1908 which provided that “No action or other legal proceeding shall be instituted against the Postmaster-General or any officer of the Post Office, or any person whomsoever, in respect of any compliance with the said regulations, or otherwise in relation thereto, or in respect of the payment of any such money orders being refused or delayed by or on account of any accidental neglect, omission, or mistake, by or on the part of any officer of the Post Office, or for any other cause whatsoever, without fraud or wilful misbehaviour on the part of any such officer of the Post Office”.

[90]In Saint Lucia a somewhat equivalent provision is found in section 7 of the Saint Lucia Land Registration Act which provides that: “The Registrar shall not, nor shall any other officer of the Registry, be liable to any action or proceeding for or in respect of any act or matter done or omitted to be done in good faith in the exercise or supposed exercise of the powers under this Act, or any regulations made thereunder.”

[91]These statutes provide a clear and unequivocal example of Parliament negativing or limiting liability in respect of the actions taken by crown servants in the course of their duties. Counsel for the appellant submitted that Article 28 falls within the category of enactments ‘…which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any delict or quasi-delict committed by that department or officer…’ I am however unable to agree with that submission. In my view the answer lies in the clear wording of the provision and its object and purpose.

[92]Article 28 lays down the procedure where suits are brought against public officers. The provision clearly affords protection to public officers, however, as the Board (considering section 80 of the Indian Code of Civil Procedure 1908) in Bhagchand Dagadusha Gujarati and Ors. made clear, ‘this protection takes the form of providing a fixed and obligatory interval of two months between the required notice and the commencement of any suit…’. The judgment in Bhagchand Dagadusha Gujarati is just one of many which has pronounced on the consequences of failure to serve a pre-action notice when it is a mandated condition precedent for the commencement of a suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with the pre-action notice. The Board in Bhagchand Dagadusha Gujarati described the consequence in the following terms: “The consequence is that the appellants’ present position in regard to the taxes imposed on them is as if their action had never been brought. It is unsustainable in limine. They commenced their suit before the law allowed then to sue, and can get no relief in it either by declaration or otherwise….They have taken their own course and have brought this result on themselves.”

[93]The Article absolutely bars a court from entering judgment against a public officer or indeed entertaining a suit which has been instituted without compliance with its provisions. If the subject matter is within the jurisdiction of the court, failure on the part of the claimant to serve a pre-action notice on the public officer gives him a private right solely for his benefit to insist on such notice before the claimant may approach the court. Non-compliance with pre-action notice (where it is required), therefore renders the action against the public officer premature. The Court is barred from entertaining such a claim and it must accordingly be struck out. However, non-service of a pre-action notice does not eliminate the right of a claimant to approach the court for redress. It does not annul the right of the claimant to approach the court or defeat his cause of action as against the Crown. .

[94]In my judgment the provision provides for the procedure only, it does not negative or limit rights and liabilities in the way that these sections 7 of the CPA and the Land Registration Act do.

[95]In arriving at this conclusion I am aware that it departs from what I consider to be the observations made obiter in Bryan James. However, I derive support for this conclusion from the House of Lords dictum in Matthews v Ministry of Defence. That case was a landmark decision which addressed the compatibility of the Crown Proceedings Act 1947 with Article 6 of the European Convention on Human Rights (ECHR), which guarantees the right to a fair trial. The appellant in that case sought to claim damages for personal injury suffered during his service in the Royal Navy due to asbestos exposure. However, section 10 of the Crown Proceedings Act 1947 rendered the Crown (the Ministry of Defence in this case) immune from liability in tort under specific circumstances. The core legal question in that case was whether this immunity constituted a violation of the right to a fair trial under Article 6.

[96]The House of Lords unanimously dismissed Mr. Matthews' appeal, holding that section 10 of the Crown Proceedings Act 1947 constituted a substantive limitation on the right to sue the Crown in tort rather than a purely procedural bar. Consequently, the House of Lords held that this limitation did not infringe Article 6 of the ECHR. Their Lordships reasoned that the immunity provisions were part of the substantive law governing Crown liability and were not arbitrary or disproportionate restrictions on access to the courts. The decision carefully considered the nature of section 10 (section 8 of the St. Lucia CPA) determining it to be a substantive limitation. The court underscored the distinction between a (1) substantive limitation which refers to rules that alter the fundamental legal rights or liabilities and (2) procedural bars which involve rules that affect the process of litigation without changing the underlying rights. The latter may limit how a claim is filed or require certain steps before proceeding, but it doesn’t nullify the right to sue itself.

[97]At paragraphs 35 – 36 of the judgment, the Court observed that: “Some statutory rules and regulations are clearly designed to regulate court procedure……Other statutory rules, which may preclude a successful claim for infringement of a civil right, do so because they delimit the rights and liabilities that arise under civil law. They are not procedural rules, but rules of substantive law.”

[98]After considering the judgment in Ketterick v UK the House of Lords went on to hold: “It seems to us that the Commission ruled the complaint inadmissible because the effect of s 10 and the issue of the certificate was to alter the applicant’s substantive legal rights, rather than to pose an impediment to his access to the courts to enforce those rights.”

[99]I further find support from the fact that in any given case, it is open to the public officer for whose benefit the provision has been made to waive the compliance with this statutorily mandated procedure. The view is reiterated in a passage in Craies on Statute Law , 7th edition, at page 269: “If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered indispensable. This rule is expressed by the maxim of law, quilibet potest renuntiare juri pro se introducto. As a general rule, the conditions imposed by statutes which authorize legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered indispensable, and either party may waive them without affecting the jurisdiction of the court.”

[100]In the Judicial Committee’s judgment in Vellayan Chettiar v Government of the Province of Madras where the Board considered the position in respect of pre-action notices and found: "...there appears to their Lordships to be no reason why the notice required to be given under Section 80, should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required: if in the particular case he does not require that protection and says so, he can lawfully waive his right".

[101]The Judicial Committee of the Privy Council pointed out that there was no inconsistency between the propositions that the provisions of section 80 of the India Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided. It follows that any defendant, who wishes to insist on his right to be served a pre-action notice, must act timeously by pleading non-service of the notice in his defence, and raise objection to the suit. Any failure to do this could arguably be deemed to be a waiver. In my judgment, this is not on par with a statute which is intended to negative of limit tortious liability.

[102]I am also not persuaded by the appellants’ eleventh-hour argument that Article 28 of the CCP provides for immunity from suit and judgment being rendered against the public officer. I find that little assistance is to be derived from the cited authority – Charter Capital Ltd. v National Bank of Anguilla as that judgment considered and pronounced on legislative provisions used in particular statutory matrix , which are not identical or indeed similar with the language of the CCP which we have to consider.

[103]In my opinion this court must give effect to the natural meaning of the language used in the Article 28. The Article 28 pre-action Notice inures to the benefit of the public officer. The scheme is procedural in its wording and intent. The rationale for such a provision was perhaps best framed in the judgment of the Supreme Court of India in Bihari Chowdhary and another v State of Bihar and Ors (considering section 80 of the Indian Code of Civil Procedure). “There is clearly a public purpose underlying the mandatory provision contained in the Section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months’ time to Government or a public officer before a suit can be instituted against them. The object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.”

[104]I am of the view that the framers of Article 28 intended to achieve the precise public purpose expressed in Bihari Chowdhary. The provision does not negative or delimit the liability which a public officer may incur under civil law neither does it afford him immunity from suit. I am of the view that the Article 28 protections would not be captured by subsection 4(4) of the CPA.

[105]I am therefore unable to conclude that the learned master erred in principle in the exercise of his discretion on the appellant’s/defendant’s application not to strike out the claim as against the Attorney General. I am also not satisfied that the learned master’s decision exceeded the generous ambit within which reasonable disagreement is possible. The application of section 26 of the Crown Proceedings Act

[106]Although the argument did not feature in the court below and did not arise in the grounds of appeal, in further skeleton arguments filed on 27th March 2024 pursuant to the order of this Court, counsel for the appellants cited the judgment in Durity v Attorney General of Trinidad and Tobago and submitted that pursuant to section 26 of the CPA, the Crown is entitled to take advantage of any statutory defence afforded to a public officer including that prescribed under Article 28 of the CCP.

[107]Although the specific issue in Durity was whether the Trinidad and Tobago Public Authorities Protection Act, applied to deprive the appellant of a constitutional remedy one year after the cause of action arose, the Judicial Committee of the Privy Council made general observations on section 33 of the State Liability and Proceedings Act 1966 (originally known as the Crown Liability and Proceedings Act, modelled closely on the (United Kingdom) Crown Proceedings Act 1947) which is pari materia to section 26 of the Saint Lucia CPA. This section provides that: “26. (1) This Act shall not prejudice the right of the Crown to take advantage of the provisions of an Act although not named therein; and it is hereby declared that in any civil proceedings against the Crown the provisions of any Act which could, if the proceedings were between subjects, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Crown.”

[108]In Durity, the Judicial Committee described section 33 of the State Liability and Proceedings Act as a saving provision to ensure that the state, when sued, could rely on any statutory defences, such as those under the Public Authorities Protection Act, which could be relied upon by the defendant 'if the proceedings were between subjects'. At paragraphs 27 – 28, the Board helpfully observed: “[27] Section 33 of the State Liability and Proceedings Act is of the nature of a saving provision. This is expressly so with the first limb of s 33 ('This Act shall not prejudice the right of the State …’). Likewise the second limb ('it is hereby declared …’) is intended to ensure that the extension of civil liability of the state should not preclude the state from relying on statutory defences which would have been available had the proceedings been between subjects.

[109]I can only endorse Board’s observations. Under section 26 of the CPA, any statutory defence (such as a limitation of action defence) available to a negligent employee of the Crown should equally be available to the Crown when sued as vicariously liable for its employee’s negligence.

[110]However, the position is not as clear in the context of this case. Unfortunately, and despite diligent searches, no authority has been found in which these specific provisions have been considered or addressed. What is clear however is that in this appeal, the respondent would in fact have served the Article 28 Notice on the Attorney General and so the Crown would have had the full benefit of the privilege afforded by that Article. So that even if section 26 of the CPA could be applied (and I accept that I need make no definitive pronouncement on this issue), the appellants would not have been assisted by its application in any event. Conclusion

[111]In this case the proposed appeal is against the learned Master’s exercise of his discretion in refusing to strike out the claim against the appellants. This Court’s task as an appellate court is to review that decision in accordance with the principles established in the relevant case law and refrain from interfering with the judge’s exercise of discretion unless he is clearly wrong, has misdirected himself in law, failed to take into account some material which he ought to have taken into account, or had taken into account a matter which ought to have excluded thereby exceeding the generous ambit within which reasonable disagreement is possible.

[112]For the reasons given above, I have concluded that the appellants have partially met this threshold in this appeal. I am satisfied that the master made errors in law in the exercise of his discretion and that Grounds 1, 2, 3 are made out. Consequently, I am satisfied that the master erred in law when he declined to strike out the claim as against the first appellant. In my judgment, this warrants the Court’s interference. The appellants however have not been successful on Grounds 4 and 5 of the appeal and I am not satisfied that the claim should be struck out against the Crown. Disposition

[28]Affording this protection to the state makes sense easily enough in cases where, before the state itself became liable in tort, negligent employees of the state if sued personally would have had a limitation defence available to them. The Public Authorities Protection Act is an example of this. Despite the imperfections of the Public Authorities Protection legislation, while it remained on the statute books of the United Kingdom and Trinidad and Tobago there was undeniable logic in carrying forward its provisions into the (United Kingdom) Crown Proceedings Act and the equivalent statute of Trinidad and Tobago when the Crown, or the state, became liable in tort. A limitation defence available to a negligent employee of the government should equally be available to the government when the government is sued directly as vicariously liable for its employee’s negligence. Hence, s 33 of the State Liability and Proceedings Act, echoing s 31 of the (United Kingdom) Crown Proceedings Act 1947, provides that the state, when sued, may rely upon any statutory defence which could be relied upon by the defendant ‘if the proceedings were between subjects’.” Emphasis added

[113]For the reasons given above I therefore make the following orders: (1) The appeal is allowed with respect to the first appellant only as defendant, and the order of the learned judge is to this extent set aside. (2) The Claim in the court below is struck out as against the first appellant. (3) The costs order made in the court below against the first appellant is accordingly set aside. (4) Given the findings herein and the consequential outcome, I am satisfied that this appeal should be costs neutral and will therefore make no order as to costs.

[114]It is only left for me to express the Court’s appreciation for the helpful submissions by counsel for the parties, and to express my regret for the delay in delivery of this reserved judgment. I concur Margaret Price Findlay Justice of Appeal I concur Gerard Farara Justice of Appeal [Ag.] By the Court Chief Registrar

1.The language of Article 28 of the CCP is clear. There is therefore no need to resort to any rules of interpretation outside the natural and ordinary meaning of the words used. Article 28 of the CCP imposes a bar against the institution of a suit in damages, or the entry of any judgment against a public officer or other person fulfilling any public duty or function in respect of any act purported to be done by him in his official capacity unless written notice of such suit has been served on him or her personally at his domicile at least one month before the suit is issued. Article 28 of the CCP lays down the procedure where suits are brought against public officers or individuals who are fulfilling a public duty or function. The provision is imperative in its language, and it clearly affords protection to public officers. The notice must be served upon the public officer or principal tortfeasor personally. The service of this notice on a public officer or a person fulfilling public duties or function is therefore a prerequisite (where he or she is joined as a defendant), essential to the success of legal proceedings against the pubic officer. If it is not given, the claim against that public officer must be rejected, struck out and dismissed, and the court cannot issue any award for damages. Article 28 of the Crown Proceedings Act, Cap 2:05 of the Revised Laws of Saint Lucia applied; Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) applied.

2.Prior to the enactment of the CPA, the Crown remained immune from claims in tort as there was no other procedural vehicle to bring a tort claim against the Crown. However, this is no longer the case. The proviso to section 4(1) makes clear that under the CPA, no right of action exists against the Crown in tort unless the act or omission would, apart from the provisions of the Act, give rise to a cause of action in tort against that servant or agent or his estate in respect of whom it is alleged that vicarious liability arises against the Crown. Sections 4(1) and 13 Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) applied; Conseil des Ports Nationaux v Langelier [1969] S.C.R 60 considered; Section 80 of the India Code of Civil Procedure 1908 considered; Bhagchand Dagadusha Gujrati and others v Secretary of State for India (1927) 43 TLR 617 considered.

3.Section 13(2) of the CPA makes clear that in a suit by or against the Crown, the authority to be named as claimant or defendant is the Attorney General. The Attorney General may well be the principal legal advisor of the Government but under section 13(2) of the CPA, he has been statutorily designated as the nominal defendant when suing the Crown in right of her Majesty’s Government in Saint Lucia. There is therefore no personal or primary liability which attaches the Attorney General. The operating liability here is vicarious and it is attached to the Crown. Sections 13(2) and 30 Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Section 8 Interpretation Act Cap 1.06 of the Revised Laws of Saint Lucia applied; Town Investments Ltd. and another v Department of the Environment [1978] AC 359 considered; M v Home Office [1992] 1 QB 270 considered; Basil Williams v Attorney General of Guyana et al [2013] CCJ (AJ) GY applied.

4.Even where a claim against the officer is struck out not on the merits but for non-service of the Article 28 Notice, it may still be possible to maintain the vicarious liability against the Crown once the pleadings contain reasonable information as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the government department and officer of the Crown involved. Part 59 Civil Procedure Rules (Revised Edition) 2023 applied; Laurence v Salt River Project Agricultural Improvement and Power District 255 Ariz. 95, 528 P.3d 139 considered; Peter Clarke v The Attorney General et al SLUHCV1999/0475 (delivered 19th April 2004, unreported) distinguished; DeGraff v Smith 157 P.2d 342, 62 Ariz. 261 considered.

5.The mere allegation of malice does not deprive a public officer protection under Article 28. A public officer is entitled to notice of suit even if it is alleged that in the discharge of his duty, he has acted with malice and not bona fide. Gordon v The Attorney General for Jamaica [1997] UKPC 21 distinguished; Kirby v Simpson (1854) 156 E.R 482 applied; Samantha Koti Reddi v Pothuri Subbiah and Others 46IND. CAS. 86 considered.

6.Section 4(4) of the CPA essentially states that any legal provision which limits the liability of a government department or Crown officer in relation to a tort will also apply to the Crown when being sued under this section. This means that the Crown is treated as if it were that specific department or officer, in terms of liability limitations for that particular tort. The scheme of Article 28 is procedural in its wording and intent. The framers of Article 28 intended to encourage parties to consider their legal position and make amends or settle if so advised. The object is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. This characterization is not consistent with an enactment which negatives or limits the amount of the liability of an officer of the Crown in respect of any delict or quasi-delict which he or she may have committed. Article 28 protections are therefore not captured by section 4(4) of the CPA. Article 28 of the Code of Civil Procedure, Cap 22.08 of the Revised Laws of Saint Lucia applied; Section 4 (4) of the Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Matthews v Ministry of Defence [2007] 3 All ER 513 applied; Vallayan Chettier v Government of the Province of Madras AIR 1947 PC 197 considered. Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) considered. Section 4(4) of the Crown Proceedings Act, Cap 2.05 of the Revised Laws of Saint Lucia applied.

[1]ELLIS JA: In this appeal the appellants (who were the defendants in the court below) seek to challenge the decision of the learned master refusing the appellants’ oral application to strike out the claim form and statement of claim delivered on 2nd December 2022 on the basis of the respondent’s (the Claimant’s below) failure to comply with Article 28 of the Code of Civil Procedure (“CCP”) . Background

[23]The appellants submit that the respondent’s contention that there remains an issue to be tried if the claim against the public officer is dismissed for non-service ought to be rejected as this could not have been the intention of Parliament. Counsel argued that this was not the approach taken by the courts in several cases including Bryan James and Peter Clarke v The Attorney General et al in which Edwards J did not conclude the court was entitled to hear and determine the claim to ascertain whether the public officer was acting bona fide in the execution of his or her duty. Instead Edwards J rightfully struck out the claim holding that the consequence of giving defective notice was fatal to the claim.

[24]The appellants further submit that the case of Gordon v The Attorney General can be distinguished as that case is concerned with the Public Authorities Protection Act which requires actions in respect of acts done in the execution of a public duty to be commenced within one year, whereas an Article 28 of the CCP is concerned with the service of a notice on public officers acting within the legal exercise of their duties. The further argued that the Public Authorities Protection Act is not applicable in Saint Lucia making this case inapplicable to the matrix of this appeal. Analysis and Conclusion

[16]The Law of Tort explains the doctrine and application of vicarious liability in this way: … The essence of vicarious liability is that it is imposed on the employer without the need for fault on the employer’s part – the employer is strictly liable as long as the elements needed for vicarious liability are present. Vicarious liability does not, however, replace the defaulting employee’s primary liability for his own tort, so that the employer and the employee are jointly and severally liable for the employee’s tort. In theory, the employer (and, by subrogation, his indemnity insurer) may claim an indemnity from the employee for any damages paid, on the basis of an implied term in the employment contract that the employee will take reasonable care when performing his duties or as joint tortfeasors … (emphasis added).

[17]Similarly, Hogg, Monahan, and Wright explain that ‘a plaintiff who sues the Crown for the tort of a Crown servant need not bring proceedings against the servant personally (although sometimes the plaintiff will see advantages in adding the individual servant as a defendant)’. Some of the advantages noted include instances where there may be some doubt as to whether the individual wrongdoer was a servant or was at the time acting in the course of employment. Additionally, joining the individual alleged tortfeasor, could guarantee that he or she could be made to attend the trial for cross examination or for discovery.

[18]In M v Home Office, Woolf LJ reiterated the continuing liability of the actual wrongdoer. He stated at 410: Section 1 [of the UK Act] enabled the Crown to be sued directly in those situations where prior to the Act a claim might have been enforced by petition of right. Section 2 in general permitted actions to be brought against the Crown in respect of torts committed by its servants or agents for any breach of its duties which gave rise to a tortious liability (including a breach of statutory duty where the breach created a cause of action). Section 2 did not remove the right to sue the actual tortfeasor. (emphasis mine).