FELINA FELIX v ADMINI8TRATOR GENERAL et al

~~- SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 \ Su~t No. 382 of 1990 BETWEEN: FELINA 'FELIX Plaintiff and 1. ADMINI8TRATOR GENERAL for the succession of IGNATIUS FELICIEN 2. AGNES FELICIEN 3. MICHELE ETIENNE J efendants Mi ss F. Byron-Cox for Plain~iff Mr . O. Larcher for D efenda n~ ~o . ~ . Mr . H. Detervill e fo r Defend an~ No . 1996: September 25; October 2. JUDGMENT ~ MATTHEW J. (In Chambers). Summons by Defendant No . 3 on applica~ i on ~o 'deem ~at ter deserted or abandoned or dismissed fo r wan~ of orosecu~ion f i:ed on May 28, 1996 at folio 138 of file. '. On November 23, 1990 the Plaintiff fi :ed a wr i~ -~ s u~mons indorsed with a very lengthy s~ate men~ ~~ clai m asking ~ -~ 9 ~eads o f rel ief and costs against the chree Cefendants . .. :;.1 2. ~l-:r2e :=;efendan.ts were se!"'''led ~~li':.~ ~_--:.e 'Nr - :: ~ove mb er 23. 1990, the same day it ~, I.~:l S :: i l eO. . On November 27, 1990 the Plaint if f also fi: ed a peti tion for che issue of a writ o f injunction with suppo r~ing a ffidavit and exhibits which she eventually obtained on ?ebruary 3, 199 1 against Defendants 2 and 3. were other lengthy ~~eerlocutory proc ch are not material to this decision. E~ery of appearance was ~i:ed on ~ovember 29, ~or ~ef '::or \ r-,,....,..,, ..... "r; ;.../UL...;. .. ~ef ~o. 2, and on November 30, - 990 IJefendant NO.3. defence was fil::d ~or ~ef ~o. on ~e r 1990; a fence and counterclalm was ~"- on , , -:",.... Dena.lI: -F ere ~o. on IJecember 21, 1990; and defer;.oe and C8'Jr:::erc 3l'Tl ~Nas iled on f of Defendant ~o. 2 on f

9.The Plaintiff duly entered defenoes 0 :he _oun:erc_a f Defendants Nos. 2 and 3. T appears that Def ~o. 1 ae C r"'r"~ '<-v....... C1 ital Castries on November 28, 1991 upon appl~caeion pIa iff , , on lJ.. 28, 1993: ehe Plaint~ 1= at Court made an order liberty to institute proc8edings againse the niseraeor Gene ~ as the representative of :he succession of IGNATIUS FELICIEN named as Defendant No. 1 i~ suie 382 of 199 . order was filed on ~u~e 9 1 -993 and on , 4 there ,~-F '-'- se ce ?et".1ra Y!or2:.-~ Sf s ic_tor's was filed an affidavit c to the effect thae on Fri ~anuary 8 1 4 s.e rsonall served the Administraeor ~eneral with ~he 28CV __ ..... e ,-,rder on 1 28, 1993. applicaeion ('""'\+= V.L ~ef No. next document filed was che ~'"7 "'-I monehs 3,r ~": -_!it=' Drec referred to above whi:'i'une __ n document filed. Learned Counsel for the t. rd ~efendanc submlt: :hae he was not pursuing the applicaeion :0 deem ehe maeeer deserted lew of the ision in BARBUDA ENTERPRISES LTD. v. A.G. OF ANTINGUA 1993 1 WLR 1052. Counsel relied on the auchority of ST. HILLAIRE v. LEWIS Civil Appeal No. 21 of 1993 and FRETT v. DAVIES Civil Appeal No. 2 of 1995 and stated that s applicacion em ,-:1e ~"1at. :.er incapable of being was eo 'n Order

4.le 1"1 (a) . " Counsel went further to ask thac the macter ne disfTLssed :or want prosecltion under the inherenc ~uri ctlon of ~e :ourt and in s context made references co the Counc_ declsion _n Lewis v. St. Hi11aire and the affidavit ,--- -F V~ the :. ::cd Jef especially paragraphs 2 co 7. Counsel further asked thac the injunction against ~efendanc No. lifted. In her reply learned Counsel for t:1e ?lal£1t.:. ~ acceDted che authority of the Barbuda case and she referred co a ase dec "'"} s Court, No. 614/93 GIRARD v. WAYNE. ':':::our.;.sel also reference to ST. HILLAIRE v. LEWIS. rnhe subscanclal ;:'0 made Counsel was that since In s case the pleadings were closed , ..l.. case should be viewed as falling under Order 34 e 11 b) . ,., As regards the applicacion under the inherenc ~ur sdicclon f Court Counsel referred to the case of BIRCKETT v. JAMES A.C. 297 where at pages 325 and 327 Salmon the stion of prejudice to the Defendanc whereas t~is :ase c Defendant has only spoken about hardship. Counsel said that the delay was caused by the ach af Defendant No.1 and the difficulty thac :allowed In obcainlng representation his estate. ~ should ~ote here __ his ::;r representation of Defendant No. was settled Slnce 1993. application concerns a od after ~ ~9 3 :. ::..s the period February 2, 1994 :'0 May 28, 1996. -'- agree wi learned Counsel _or :.he .;;ppl~cant ::hat ~ - . s a matter semantics to distingu::..sh between a rY\-"~1-~r dlctL ~-':;"'..i- De .. arsh and ~t or ~nother being prejudicial. _ see noth n BIRCKETT v. C.'I,MES t support that content~on of learned Counsel for ::he ?la iff. " Tne Applicant has clearly '~elied on e' ~ -/ a) f r

34.Rule reads this - "A cause or matter shall be deemed altogether and incapable of being rev::..ved ~c prior -0 :.he ::..ng a t for hearing or consent: to .: or ~._e ob:'aln f judgment any party cail:.o :. any proceed -. " or tl.le any document there for one year from :.he aate ~he last proceeding had or the filing of :.he last herein. in the Barbuda case and :.he Girard case the ~ppl cat_ons were bro~ght under Rule 11 (1 b of Order 34. Le Counsel for ~ P aintiff correctly stat that the cases have drawn a st between the applications r e"l al on the one hand and Rule 11 (1 b) and (c) on :.he other Counsel submits that because the plead were ~osed :.his case comes under Rule 11 1- \ 1- :b) . -'- do :1ot agree. The pI :1gs may have been closed but 27 months elapsed a:1d :.he ?la::..n:.~ff had :1ot filed the request for hear~ng. I rule that this matter be deemed abandoned and inc Ie of ing 'Jed. I also dismiss -~g rla~m for want f crosecu:.::..on and _ . '- al:lt:.=- __ +- 1 ? ..J...-J, order that the injunction ed to :.ne ~ 1991 in this matter be discharged. "-- Plaintiff is to pay ~he costs of ~he ican~ ~n sum 750.00. ;:0.. • )J. - :viA TTHEW ?tl sne "7> ".

SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 \ Su~t No. 382 of 1990 BETWEEN: FELINA 'FELIX and

1.ADMINI8TRATOR GENERAL for ~~- Plaintiff the succession of IGNATIUS FELICIEN

2.AGNES FELICIEN

3.MICHELE ETIENNE Mi ss F. Byron-Cox for Plain~iff Mr . O. Larcher for D efenda n~ ~o . ~ . Mr . H. Detervi lle fo r Defend an~ No . 1996: September 25; October 2. JUDGMENT ~ MATTHEW J. (In Chambers). J efendants Summons by Defendant No . 3 on applica~ i on ~o ‘deem ~ at ter deserted or abandoned or dismissed fo r wan~ of orosecu~ion f i:ed on May 28, 1996 at folio 138 of file. ‘. On November 23, 1990 the Plaintiff fi :ed a wr i~ -~ s u~m ons indorsed with a very lengthy s~ate m en~ ~~ c laim ask ing ~ -~ 9 ~eads o f rel ief and costs against the chree Ce fendants . ..: ;.1 2. ~l-:r2e :=;efendan.ts were se!””’led ~~li’:.~ ~ –:.e ‘Nr – :: ~ovember 23. 1 990, the same day it ~, I.~:l S :: i l eO. . On November 27, 1990 the Plaint if f also fi: ed a pe ti tion for che issue of a writ o f injunction with suppo r~ing a ffidavit and exhibits which she eventually obtained on ?ebruary 3, 1991 against Defendants 2 and 3. were other lengthy ~~eerlocutory proc ch are not material to this decision. E~ery of appearance was ~i:ed on ~ovember 29, 9 ~or ~ef 2, and on November 30, – 990 IJefendant NO.3. ‘::or \ r-,,….,..,, ….. “r; ;…/UL…;. .. ~ef ~o. defence was fil::d ~or ~ef ~o. on ~e r 11 1990; a fence and counterclalm was ~”- on , , -:”,…. Dena.lI: -F ere ~o. on IJecember 21, 1990; and defer;.oe and C8’Jr:::erc 3l’Tl ~Nas iled on f of Defendant ~o. 2 on 2 f 9. The Plaintiff duly entered defenoes 0 :he oun:erc_a f Defendants Nos. 2 and 3. T appears that Def ~o. 1 ae C r'< -“v..’….r. “~C1 ital Castries on November 28, 1991 upon appl~caeion pIa iff Court made an order , , on lJ.. 28, 1993: ehe Plaint~ 1= at liberty to institute proc8edings againse the niseraeor Gene ~ as the representative of :he succession of IGNATIUS FELICIEN named as Defendant No. 1 i~ suie 382 of 199 . order was filed on ~u~e 91 -993 and on , 4 there was filed an affidavit ,~-F ‘-‘- se ce ?et”.1ra Y!or2:.-~ Sf s ic_tor’s c to the effect thae on Fri ~anuary 8 1 4 s.e rsonall served the Administraeor ~eneral with ~he 28CV __ ….. e ,-,rder on 1 28, 1993. next document filed was che referred to above whi:’i’une __ n document filed. applicaeion ~'”7 “‘-I monehs (‘””‘+= V.L ~ef No. 3,r ~”: – !it=’ Drec Learned Counsel for the t. rd ~efendanc submlt: :hae he was not pursuing the applicaeion :0 deem ehe maeeer deserted lew of the ision in BARBUDA ENTERPRISES LTD. v. A.G. OF ANTINGUA 1993 1 WLR 1052. Counsel relied on the auchority of ST. HILLAIRE v. LEWIS Civil Appeal No. 21 of 1993 and FRETT v. DAVIES Civil Appeal No. 2 of 1995 and stated that s applicacion em ,-:1e ~”1at. :.er incapable of being was eo ‘n Order 4. le 1″1 (a) . Counsel went further to ask thac the macter” ne disfTLssed :or want prosecltion under the inherenc ~uri ctlon of ~e :ourt and in s context made references co the Counc declsion n Lewis v. St. Hi11aire and the affidavit especially paragraphs 2 co 7. ,— -F V~ the :. ::cd Jef Counsel further asked thac the injunction against ~efendanc No. 3 lifted. In her reply learned Counsel for t:1e ?lal£1t.:. ~ acceDted che authority of the Barbuda case and she referred co a ase dec “‘”} s Court, No. 614/93 GIRARD v. WAYNE. ‘:’:::our.;.sel also reference to ST. HILLAIRE v. LEWIS. rnhe subscanclal ;:’0 made Counsel was that since In s case the pleadings were closed case should be viewed as falling under Order 34 e 11 b) . ,., As regards the applicacion under the inherenc ~ur sdicclon f , ..l.. Court Counsel referred to the case of BIRCKETT v. JAMES 1978 A.C. 297 where at pages 325 and 327 Salmon the stion of prejudice to the Defendanc whereas t~is :ase c Defendant has only spoken about hardship. Counsel said that the delay was caused by the ach af Defendant No.1 and the difficulty thac :allowed In obcainlng representation his estate. ~ should ~ote here ,-~.;.a[ __ his :T~at:ter- ::;r ‘- representation of Defendant No. was settled Slnce r -,- 1993. application concerns a od after ~ ~9 3 :. ::..s the period February 2, 1994 :’0 May 28, 1996. -‘- agree wi learned Counsel or :.he .;;ppl~cant ::hat ~ – . s a matter semantics to distingu::..sh between a rY-”~1-~r dlctL ~-‘:;”‘..i- De .. arsh and ~t or ~nother being prejudicial. _ see noth n BIRCKETT v. C.’I,MES t support that content~on of learned Counsel for ::he ?la iff. Tne Applicant has clearly ‘~elied on e’ “~ -/ a) f r 34. Rule reads this – “A cause or matter shall be deemed altogether and incapable of being rev::..ved ~c prior -0 :.he ::..ng a t for hearing or consent: to .: or ~. e ob:’aln f judgment any party cail:.o :. any proceed or t-l.. “l e any document there for one year from :.he aate ~he last proceeding had or the filing of :.he last herein. in the Barbuda case and :.he Girard case the ~ppl cat_ons were bro~ght under Rule 11 (1 b of Order 34. Le Counsel for ~ P aintiff correctly stat that the cases have drawn a st between the applications r e”l al on the one hand and Rule 11 (1 b) and (c) on :.he other Counsel submits that because the plead were ~osed :.his case comes under Rule 11 1- \ 1- :b) . -‘- do :1ot agree. The pI :1gs may have been closed but 27 months elapsed a:1d :.he ?la::..n:.~ff had :1ot filed the request for hear~ng. I rule that this matter be deemed abandoned and inc Ie of ing ‘Jed. I also dismiss -~g rla~m for want f crosecu:.::..on and _ order that the injunction ed to :.ne ~ 1991 in this matter be discharged. al:.l t:.=-‘ – +- 1 ? ..J…-J, “– Plaintiff is to pay ~he costs of ~he ican~ ~n sum 750.00. ;:0.. • )J. – :viA TTHEW ?tl sne “7> “. ~–~~–