MARIA FRANCOIS v EUSTACE FREDERICK et al

SAINT LUCIA IN THE HIGH COURT OF JUSTICE CIVIL SUIT NO. 620 OF 1993 BET\VEEN :\lARIA FRANCOIS And EUST ACE FREDERICK O'BRIAN FEALLING Appearances: Mrs. Petra Jeffery Nelson for Plaintiff Mr. Michael Gordon for Defendant 1999: September 24 October 29 JUDGMENT a (1 ] d' AUVERGNE, J: On the 21 day of May 1999 Second summons to deem matter abandoned. This Summons was supported bV an affidavit of Raquel Dn Boulay a Solicitor employed represents the said Second Defendant. She deposed to the following. 1l1at on 13 th day 0 f October 1994 a defence \VaS on Second that the Plaintiff filed a reply to that Defence on the 31 of March ! 995. on the 16th day of April 1996 a request for by the Plainti tl a!1li that SlI1ce more than 12 months had elapsed bet\veen of the reply and the request for hearing she craved The Court's indull!ence to deem the matter abandoned and incapable of being revlved and the costs hereof. ARGUMENTS IS Learned Counsel for the Plaintiff contended that the tIling of a raising the point, namely, delay onor to a request for hearing had been filed. She quoted Page 6 ofSt Hillaire v Lewis Civil Appeal N021 of 1993 Page 2 of Frett v Davies Civil Appeal NO 2 of 1995 and Robert Brisbane etal vs Staher Civil Appeal NO 11 of 1992. She argued that the Second s inaction allowed the Plaintiff to believe that she could exercise her nghts to proceed to trial notwithstanding the Plaintiff s delay. Learned Counsel for the Second Defendant merely stated it was in Court's discretion whether or not the said Defendant is prevented from Order 34. CONCLUSION

[5]First of all I want to state that C0U11 tlle shows on " 1999 Summons for Direction was entered on behalf of the Plaintiff and that the application under review does not state exactly under what sub section Order 34 Rule 11 that the application is bought. From the arguments however 1 have arrived at the conclusion that Order 34 Rule 11 (1 )(a) was intended. Order 34 deals with Setting down for Trial Action begun by Writ and Order 34 Rule 11 deals with: When cause or matter abandoned 11. (1) A cause or matter shall be deemed altogether abandoned and incapable of being revived ifprior to filing of a request hearing or consent to judgment or the obtaining of judgment any party has taIled to take any proceeding or document therein for one year from the date proceeding had or the filing of the last document merem: or b) no application for or consent to reVIvor SIX months after the cause or matter deemed deserted; or if the cause or matter has not, on the request of been entered on the Hearing List within SIX months fODn the date of any order of revivor. The instituting of a cause or matter has been (2) altogether abandoned shall be of no effect in interrupting period of Learned Counsel for the Plaintiff argued that since Second Defendant chose

[7]not to exercise the right or power to apply to the Court for an order dismissing cause before the request for hearing had been filed some twelve and a half months later he should not then be allowed to do so. She cited a passage from Frett vs Davis where Byron J A as he then was quoted Halsbury Laws of England 4th Edition Vol 16 para. 1471, the essence of which is a party will not be allowed to renay on his promise or assurance made either by words or conduct to such a promise or assurance was intended to affect the legal relations between them. In Frett vs Davis the respondents through their solicitors consented in (some 27 months after the appearances were entered) to the appellants filing their statement of claim out of time which was eventually duly filed and served. and a half months later through their new Solicitors the Respondents challenged the validity of the written consent which had been given by the fonner solicitor. They claimed that the matter had been deemed abandoned and incapable of being revived under Order 34 Rule 11 (1) (a) of the rules of the Supreme Court viz that the PlaintitTs had to proceedings or to one year from the document Entry of Appearance. It was held that the Court woulC1 exerCIse that the Respondents had waived their ru!ht under Order

[10]In my judgment this is not the position ofthe Second Defendant nothing by word or conduct to indicate that he waived his procedural Order 34 rule 11 1 (a)

[11]In Henry St Hillaire v Lewis noted earlier and which was confirmed Judicial Committee of the Privy Council (48 WIR (1995) c.J as he then was had this to say at pages 6 and 7. "Rule 11 (1) (b) rule 11 (1) (c) of Order 34 relate to abandonment consequential and desertion which arises when the plaintiff has failed to a request the prescribed time after the cause or matter has become ripe concept of ripeness for hearing is evidently intended to be relevant onlv to concept of desertion. The importation of the concept of ripeness for Order 34 rule 11 (1) (a) WOULD HAVE THE OF RENDERING RULE OTIOSE. For this reason, Order 34 rule 11 (1) must held to apply to causes or matters which never became ripe for consequently could not be deemed to have been deserted. Attention has been drawn to the prefatory words of Order 34 11 (1). suggestion is that the words "if prior to the filing of a request for hearing or consent to judgment or the obtaining of judgment" signify that there can be no abandonment of a cause or matter unless the cause or matter became ripe hearing with the result that the plaintiff was under a duty to file a request hearing. This suggestion overlooks the fact that the operative word is "prior" the significance of which is purely temporaL In my Judgment the prefatory words simply mean that as between a plaintiff and a particular defendant, a cause or matter cannot be deemed to have been abandoned by reason of any of the defaults specified in Order 34 rule 11 (1), fat the default, a valid request for hearing had already been wen or J already been obtained against or consented to by that defendant.

[12]Simply put, the matter need not be ripe for hearing Order 34 Rule 11(I)(a) to apply. 13] In Barbuda Enterprises Ltd v Attorney - General of Antigua and Barbuda (1993) 42\VIR 183 Lord Bridge said at page 190 para. " ......... the action will not become ripe for hearing at close pleadings, but only by the operation of order 34 an is made under order 25 giving directions as to of cause or matter. ...... "

[14]Applying the dicta of Lord Bridge to the present case I find that this matter was not ripe for hearing. [IS] In my judgment, after considering all the decisions on the subject question is, Was any document filed between 31 st of March 1995 and 31 1996? If the answer is "NO" then the party who defaulted would be caught the strict and harsh procedural rule of Order 34 Rule 11 (1)( a) of the Rules of Supreme Court. 16] Based on the above I find that the Second Defendant has satisfied me that the matter under review is to be deemed abandoned and incapable of being revived. My order is as follows 17J Suit 620 of 1993 is deemed abandoned and incapable of being revived . [18J That the Plaintitt do pay costs to the Second Defendant to be agreed or taxed. -, -=~~"~--A- ~-",,<-'~ "- Suzie d' Auvergne High Court Judge

CIVIL SUIT NO. 620 OF 1993 D’Auvergne, J: Delivered: 29/10/99