Norman Walcott v Moses Serieux

SAINT LUCIA CIVIL APPEAL NO.2 of 1975 Appellant BETWEEN: NORMAN WALCOTT AND Respondent MOSES SERIEUX Before: The Honourable the Chief Justice The Honourable Mr. Justice St. Bernard The Honourable Mr .. Justice Peterkin K. Monplaisir for appellant. H. Giraudy for respondent. 1975, October 14, 15 & 20 JUDGMENT PETERKIN, J ,A. The brief facts which have given rise to this appeal are as follows' On the 25th day of July 1972 the appellant brought an action against the respondent for damage done to his motor van No.40l on the 12th day of March 1972, as a result of the negligent driving of the respondent. The appellant in his statement of claim stated that he was at all material times the owner of the said van and the respondent in his defence admitted that the appellant was the owner of the motor van. Despite the state of the pleadings as mentioned above j the appellant at the trial gave the following evidence: 111 live at La Clery, Castries. I know the defendant. I owned a pick-up registration no.401. I would call it a truck. It belonged to the company of which I am a director, It belonged to Walcott's Construction Co. Ltd. It was so owned by the company in March 1972.!! At that stage counsel for the appellant submitted that in view of this evidence it was clear that the wrong plaintiff was before the Court and sought leave to amend the writ by substituting Walcott Construction Co, Ltd. as the plaintiff in the action. The learned trial judge heard arguments from both counsel in the case and ruled as follows: "Court rules that application for sUbstitution of another person as plaintiff cannot be entertained. In the result both action and counterclaim are dismissed. There will be no order as to costs." is from this Order that the appellant now appeals. The grounds of appeal are as follows: "1. That the learned judge was wrong in law in holding that no amendment could be allowed to substitute a plaintiff in an action.

2.That the learned judge was wrong in law in refusing to allow an application to amend the writ by substituting the plaintiff for another. J. That the judgment of the learned judge was wrong and ought to be set aside and a new trial between a substituted plaintiff, viz. 'Walcott Construction Limited", and the defendant/respondent ordered. 1f Counsel for the plaintiff/appellant referred the Court to Order 15, Rule 6, and Order 20, Rule 5, of the Rules of the Court and pointed out that they were identical with the English Rules the Supreme Court. He then cited the casesllof Rodriguez v. Parker. {1966) 2 All E.R.349> and Sterman v. E.W, & W.J, Moore ~td4 (19701

1.All E,R.58~) and, relying on the former case cited he then submitted if the Court were satisfied (1) that the mistake sought to be corrected was a genuine mistake; (2) that the mistake was not misleading nor such as to cause any reasonable doubt as to the identity of the person intended to be suted: (3) that it was just to make the amend- ment; and that the three criteria mentioned in that case could be applied to the facts and circumstances of the instant case, that the Court ought to grant the amendment. He further submitted that the amendment was granted in the Rodriguez case even though it had the effect of extending the validity of the writ. -, - The facts of that case are as follows· liOn October 30, 1961, the plaintiff was injured by a. motor van driven by R.S. Parker, the son of its owner, R.~. Parker. On June 11, 1964 a writ was issued on the plaintiff's behalf in which the defendant was mistakenly described as R.J. Parker. The claim was for damages for personal injuries. The writ was served on Jan.4) 1965; by which time the limitation period had expired. In July, 1965, the defence was delivered; it included a denial that the defendant was driving the van. On Jan. 17> 1966> an order was made under R.S. C. ~ Ord .20 > r.5 (see particularly para.(2» for amendment of the writ by substituting R,S. Parker as defendant," Learned counsel for the defendant/respondent amendment sought was not permissible either by the law of England or law of St. Lucia because the period of limitation had already set namely, three years. In support of his contention he cited among others; cases (i) M~bro v. Eagle Star and British Dominions Insurance Co, Ltd,(1232} 1· K.B. 485; (ii) Braniff v. Hollgpd & Happen ~nd Qubitts 1td.(19691 1 All E.R.259; (iii) Lucy v, Henleys (W,T,) Telegraph Works Co. Ltd. ij962) J All E.R.#56. He also referred the Court to Articles 2122 and 2129 of the ~.vil Code and submitted that whereas in English law the Limitation Acts are procedural, in St. Lucia the right as well as the remedy is extinguished. Article 2129 reads as follows- "In the cases mentioned in Articles 2111 2121 2122 2123 and 2124> the debt is absolutely extinguished and no action can be maintained after the delay for prescription has expired except in the case of promissory notes and bills of exchange, where prescription is precluded by a wri t ing signed by the person liable upon them. 11 - 4 - action in the instant case falls under Article 2122. enG to the three criteria mentioned in the Rodriguez ca~e the first T a&k myself is whether the error of citing the instant case is the sort of mistake envisaged • In that case it would be seen that all that was correct the initials of the name of the defendant, the instant case the substitution of a new and different • This is not correcting the name of a party~ it s not a matter of mistake. In the Lucy case mentioned above Megaw III am unaware of any case in which leave to amend a writ has bee~ given in such circumstances; namely, where the of a new defendant would be calculated to defeat a as to limitation which he would have had if an ftct' 0:::1 to be brought by the plaintiff against him 7 a close study of the ratio decidendi in the that Nield J. held that the Limitation Acts in regarded as dealing with practice and procedure ra~her Jubstantial rights, Indeed at page 363 of his rIe -Lhe:::e words' fltl:1e which a defendant derives from the Statute +"ations is not I think properly described as a 8ubi~t benefit but really merely as a right to defence if he chooses to> so that the plainti ff is barred from prosecuting his claim." In exerc~.Ring his discretion in favour of the plaintiff and the amendment in that case the learned judge found it necessary to go further and exercise his discretion to extend the validity of the 2120 quoted above, both the right and the remedy are there is no question of a party being called ~et:1C:;:' he would plead the defence of limitation. As long ~ na'"'G discloses that the period of limitation has - 5 - expired J the judge has no disaretion. case to have allowed an amendment would meant plaintiff would have been instituting proceedings out of time, I would therefore dismiss the appeal. The respondent have his costs to be taxed. N. A. PEl'ERKIN JUSTICE OF APPEAL MAUmCE D}.YJ§. C.J. I agree. MAURICE DAVIS CHIEF JUSTICE ST. BEllWnRD: J sA. I also agree.

E .1, ST. BERNABD

JUSTICE 'F .. APPEAL

SAINT LUCIA CIVIL APPEAL NO.2 of 1975 BETWEEN: NORMAN WALCOTT Appellant AND MOSES SERIEUX RespondenT Before: The Honourable the Chief Justice The Honourable Mr. Justice St. Bernard The Honourable Mr Justice Peterkin Monplaisir for appellant. . Giraudy for respondent. 1975, October 14, 15 & 20 JUDGMENT PETERKIN, JA.