FELINA FELIX v KYLE ALEXMIDER

. " O'~ <· U SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 Suit :TO. 20,;: o f 1992 BETWEEN: FELINA FELIX Plaintiff and KYLE ALEXMIDER Defendant Miss F. Byron-Cox for Plaintiff Mrs. P. Nelson for Defendant 1996: November 20 and 22. J U D G MEN T .......... MATTHEW J. (In Chambers) . The case file reveals that the Plaintiff filed a writ of summons on April 10, 1992. The Defendant was served three days l ater and he f iled a notice of appearance on May 21, 1993. Thereafter the Defendant filed a defence and counterclaim on June 16, 1993. The Plaintiff filed a defence to the counterclaim on July 28, 1993 and the Defendant filed a reply to the defence to the counterclaim on August 13, 1993 . Then there was filed an affidavit of service of the defence to the counterclaim on August 18, 1993, and on September 2, 1993 an affidavit of service of the reply to the defence to the counterclaim. About thirty four months later the next document filed was an a ffidavit of service of a Notice of Intention to proceed after one year's delay. That affidavit says that the Defendant was served with the notice on June 26, 1996 but no copy of the notice was ever f i led in Court. To complete the record of documents filed before the present. application was made, there is also a summons for directions led the Plaintiff on September 11, 1996. On October 17, 1996 the Defendant filed a summons applying to deem he matter abandoned. The summons was supported by an fidavit iled by the Defendant on the said October 17, 1996. At paragra.ph o cf the affidavit the Defendant says that he unequivocally states that he does not waive his right to have the matter abandoned and does not consent to the continuation of the action. At paragraph 12 of the fidavit the Defendant makes it s application is under Order 34, Rule 11 (1) a states that more than one year had elapsed from the e ast proceeding had or filing of the last document prior to iling of the notice of intention to proceed after one s lay. In effect the Defendant is referring to t period September 2, 1993 to June 24, 1996 when the Notice Intent to proceed was signed. In the course of her submissions learned Counsel for the Defendant ied on the following authorities:

1.HENRY ST. HILLAIRE and RAILFORD BAPTISTE v. ENA LEWiIS Civil Appeal No. 21 of 1993 decided on February 6, 1995 especially at pages 7 - 8; and 13. 2 . PETER MAX AUGUSTE v. EDWARD JULES High Court, St. Lucia, Suit 383 of 1990 decided on October 2 f especially at page 2. In opposition to the application learned Counsel for the Plaintiff submitted that she was relying on Order 34, Rule 3 (2) and the case of BARBUDA ENTERPRISES LTD. v. ATTORNEY GENERAL of ANTIGUA 1993 W.L.R. page 1052 and in particular at page 1058, A-C. Counsel submitted that as soon as the pleadings are closed Order 34, Rule (2) comes into play and the matter becomes pending and that pending proceedings would prevent the application of category of cases where no proceedings have been taken a since the last proceeding. e 3 (2) on which learned Counsel for the aintiff ie.3 comes under the sub-head: "When cause or matter ripe for hearing." concept ripeness for hearing is not to to applications under Order 34 Rule 11 (1) (a). was by Vincent Floissac in Civil Appeal No. 21 of 1993 at 6 when said: "The importation of the concept of ripeness Order 34 Rule 11 1) a) would have of that rule otiose." Barbuda E:r:.tcrprises case was concerned wi an appl ion under Rule 11 (1) (b). This is gleaned from the headnote at page 053 letter B where the decision of the Judicial Committee the Privy Council reads: "; and that, accordingly, since no order fixing the place and mode of trial had been made, the Plaintiff's, action against the Attorney General had never become ripe hearing, and therefore the action could not be deemed to been abandoned pursuant to Rule 11 1) (b).1f Therefore the concept of ripeness for hearing featured in that case. The case is not authority for the present application. In Lewis, Singh J.A. stated at page 13: In my judgment therefore Order 34 Rule 11 (1) a) applies to a cause or matter at any stage of the proceedings prior to the filing a request for hearing or consent to judgment or the obtaining of a judgment and is not limited in its application to such a cause or matter only after it becomes ripe for hearing H • I agree with that view. The Defendant's application is granted and I rule that matter be deemed abandoned and incapable of being revived. The Plalntiff is to pay the Defendant f s costs in sum of $500.00.

A. N. J. MATTHEW

Judge

Suit No. 204 of 1992 MATTHEW J. Delivered: 22/11/96