PETER MAX AUGUSTE v EDWARD JULES

4'':7'1 ~/ '- SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 -, --- r- '" \ '(L.< \ Suit No. 183 of 1990 BETWEEN: PETER MAX AUGUSTE Plaintiff and EDWARD JULES Defendant Mrs. P. Nelson for Plaintiff Mrs. S. Lewis for Defendant 1996: September 25; October

2.JUDGMENT MATTHEW J. (In Cha~ers). On November 23, 1990 the Plaintiff :ilGC a writ of summons i ndorsed with statement of claim asking for special damages of $40,000 and other relief for personal injuries. The Defendant was served on December 5, 1990. On July 28, 1993 the Plaintiff filed a notice to p.roceed with the matter. Nothing further happened until April 16, 1996 when the Plaintiff fi led a summons for an order to revive the action. Learned Counsel for the Piainciff submitted chat the notice of proceedings filed in July 1993 was pursuant to Order 3 Rule 6 of t he Rules of the Supreme Court and it was necessary to ask for r evivor under Order 34. Anticipating her difficulties under Order 34 , Rule 11 , l earned Counsel submitted that there was a contradiction between order 3, .. -.- .. - -..... . _--_. Rule 6 and Order 34 Rule 11 and she asked the Court to rule the orders took precedence. In her reply learned Counsel for the Defendant submitted that matter ought to be deemed abandoned under Order 34 Rule 11 1) and (b). Apparently Counsel has not given much heed to the between the applications of Rule 11 (1) (a) and Rule 11 1) b). I em going to confine my attention only to Rule 11 (1) a). authority of SYDNEY BUTCHER v. LAURENCE HUNTE Suit No. 189 of:. 1994 which Counsel relied on was based on Rule 11 1) a). Rule 11 (1) (a) is as follows: "A cause or matter shall be deemed altogether abandoned incapable of being revived if prior to the filing of a for hearing or consent to judgment or the obtaining judgment any party has failed to take any proceeding or file any document therein for one year from the date of the proceeding had or the filing of the last document II Two periods run foul of that rule: (a) the period between the filing the affidavit of service, December 7, 1990 and the notice to proceed with the matter filed July 28, 1993; and (b) the period between July 28, 1983 and the summons to revive filed on April 16, 1996. Learned Counsel for the Plaintiff attempts to answer the terms diffic111ties by sUbmitting that there is a contradiction between Order 3, Rule 6 nd Order 34 Rule 11. Order 34 Rule 11 (1) (a) is peremptory in its terms. It states clearly that a matter shall be deemed altogether abandoned and incapable of being revived if prior to the filing of a request for hearing any J;,arty has failed to take any proceeding or document for one year since the last proceeding or filing. Order 3 rule 6 simp2.y states that if a year or more has elapsed since the last proceeding any party who desires to proceed must give to the other party one month's notice. In my view there is no inconsistency between the orders. These two orders were considered in Civil Appeal No. 21 of 1993, ST. HIL~ v. LEWIS decided en February 6, 1995. At pages 7 - 8 Floissac C.J. stated: "Order 34 Rule 11 (1) confers upon a defendant a procedural right which he is entitled to waive if he considers that it is in his interest so to do. Order 3 Rule 6 does not deprive the defendant of that right." Singh J.A. expressed the same sentiments at pages 13 - 14 ""here he said: "I observe from the record that some five weeks after the appellants moved the the Court to have the cause deemed abandoned, the respondent sought refuge under Order 3 Rule 6 and filed a notice of intention to proceed after a year's delay. In the context of this matter, this notice is ineffective. Such a notice will only have nad the desired efficacy, if the appellants had chosen not to avail themselves of the benefit of Order 34, Rule 11." For the reasons expressed above I dismiss the summons to revive the action and I order that the matter be deemed abandoned and incapable of being revived. I order the Plaintiff to pay the Defendant's costs in the sum of $500.00 . . . . . . . . . .. . . . . . .. . . . . . .. .. . .. .. .. .. ..

A. N. J. MATTHEW

Puisne Judge

‘(L.'<” \ \ SAINT LUCIA -, –r- 4”:7’1 ~/ ‘- IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 Suit No. 183 of 1990 BETWEEN: PETER MAX AUGUSTE and EDWARD JULES Mrs. P. Nelson for Plaintiff Mrs. S. Lewis for Defendant 1996: September 25; October 2. JUDGMENT MATTHEW J. (In Cha~ers). Plaintiff Defendant On November 23, 1990 the Plaintiff :ilGC a writ of summons i ndorsed with statement of claim asking for special damages of $40,000 and other relief for personal injuries. The Defendant was served on December 5, 1990. On July 28, 1993 the Plaintiff filed a notice to p.roceed with the matter. Nothing further happened until April 16, 1996 when the Plaintiff fi led a summons for an order to revive the action. Learned Counsel for the Piainciff submitted chat the notice of p roceedings filed in July 1993 was pursuant to Order 3 Rule 6 of t he Rules of the Supreme Court and it was necessary

to ask for r evivor under Order 34. Anticipating her difficulties under Order 34 , Rule 11 , l earned Counsel submitted that there was a contradiction between order 3, _ _ ___ , •• w •• _ __ –_ _____ • •• .. -.- .. – -… .. . — . ‘”~~.–..: Rule 6 and Order 34 Rule 11 and she asked the Court to rule the orders took precedence. In her reply learned Counsel for the Defendant submitted that matter ought to be deemed abandoned under Order 34 Rule 11 1) and (b). Apparently Counsel has not given much heed to the between the applications of Rule 11 (1) (a) and Rule 11 1) b). I em going to confine my attention only to Rule 11 (1) a). authority of SYDNEY BUTCHER v. LAURENCE HUNTE Suit No. 189 of:. 1994 which Counsel relied on was based on Rule 11 1) a). Rule 11 (1) (a) is as follows:

A. cause or matter shall be deemed altogether abandoned incapable of being revived if prior to the filing of a for hearing or consent to judgment or the obtaining judgment any party has failed to take any proceeding or file any document therein for one year from the date of the proceeding had or the filing of the last document II Two periods run foul of that rule: (a) the period between the filing the affidavit of service, December 7, 1990 and the notice to proceed with the matter filed July 28, 1993; and (b) the period between July 28, 1983 and the summons to revive filed on April 16, 1996. Learned Counsel for the Plaintiff attempts to answer the diffic111ties by sUbmitting that there is a contradiction between Order 3, Rule 6 nd Order 34 Rule 11. terms Order 34 Rule 11 (1) (a) is peremptory in its terms. It states clearly that a matter shall be deemed altogether

abandoned and incapable of being revived if prior to the filing of a request for 2 hearing any J;,arty has failed to take any proceeding or document for one year since the last proceeding or filing. Order 3 rule 6 simp2.y states that if a year or more has elapsed since the last proceeding any party who desires to proceed must give to the other party one month’s notice. In my view there is no inconsistency between the orders. These two orders were considered in Civil Appeal No. 21 of 1993, ST. HIL~ v. LEWIS decided en February 6, 1995. At pages 7 – 8 Floissac C.J. stated: “Order 34 Rule 11 (1) confers upon a defendant a procedural right which he is entitled to waive if he considers that it is in his interest so to do. Order 3 Rule 6 does not deprive the defendant of that right.” Singh J.A. expressed the same sentiments at pages 13 –

14 “”here he said: “I observe from the record that some five weeks after the appellants moved the the Court to have the cause deemed abandoned, the respondent sought refuge under Order 3 Rule 6 and filed a notice of intention to proceed after a year’s delay. In the context of this matter, this notice is ineffective. Such a notice will only have nad the desired efficacy, if the appellants had chosen not to avail themselves of the benefit of Order 34, Rule 11.” For the reasons expressed above I dismiss the summons to revive the action and I order that the matter be deemed abandoned and 3 incapable of being revived. I order the Plaintiff to pay the Defendant’s costs in the sum of $500.00 . . . . . . . . . .. . . . . . .. . . . . . .. .. . .. .. .. .. .. 4 A. N. J. MATTHEW

Puisne Judge ’10′” –~’