MICHAEL SHINGLETON SMITH v HICKSON CHARLES et al

SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 - ? t No. 278 BETWEEN: :r "'f' MICHAEL SHINGLETON SMITH PI iff r and

1.HICKSON CHARLES

2.MACNORA CHARLES

3.WILLIAM CHARLES

4.BOYCE CHARLES

5.WHYCLIFF CHARLES

6.INDAS CHARLES Def s M. Gordon for P iff M. Foster for Defendants 1996: January 24; February 9. ..-1' J U D G MEN T MATTHEW J. (In Chambers) . s judgment ains yet again to an icat of e c of the Rules of the Supreme Court whereby t Def s request < order that the action be deemed abandoned and e f be because the Plaintiff had failed to t any for one year from the date of the last document fil rl' - 7- These applications continue to come be the T r despite two Privy Council isions, two recent Court of v decisions Anrl several by this Court. Learned Counsel made r -'- reference to all these sources in their submissions. trouble is that the factual situations differ all time and the particular issue here is the first that I can I deal tho I am almost tempted to echo the words of a young assiduous Counsel who practices regularly in the Chamber Courts week after that rule is a humbug and should done away In he meantime it has to applied and int cd. July 26, 1991 the Pla iff brought an act t fendants for trespass to his land. On t 2, fendants entered appearance and on March 10, 1992 t fil a defence and C'cclnterclaim. About 22 months later the De s iled a request hearing. Eighteen months later De s iled the summons to deem matter ahandoned more than one year had elapsed between the fi~ of t fence and countercla by the Defendants on March 10, 1992 the fil he request for hearing by the said Defendants on 3, 1994. Plaintiff's e answer to the summons is t t De waived ir to have the Court the matter support of that ssion learned Counsel iff relied on the words of Sir Vincent ssac, f Justice, cis of the Saint Vincellc case, No. 21 of 1993 between Henry 3t. laire and Railford Baptiste t Ena s specifical to words: "nevertheless Order 34 Rule 11 ) confers upon a t a procedural ght which is en tied to waive if it that it is s interest so to " Counsel also mentioned decision of the Court t No. 14 of 1993 between DANIEL GIRARD and RICK WAYNE decided on Oc 18, 1995. Of course none of these decisions state that t fil of the request for hearing amounts to waiver. Learned Counsel for the Defendants ~eem to be blowing hot and cold in his reply and submitted that it would be for the Court to decide whether filing a request for hearing was enough to establish waiver the Defendants after twelve months had expired between the filing of the defence and counterclaim and the request for hearing. n St. llaire's case t learned f Justice re to two Privy Counsel decis the matter, namely: BAP.BUDA ENTERPRISES LTD. v. A.G. of ANTIGUA 1993 1 W.L.R. 1052; and ISSACS v. ROBERTSON 1984 3AER, 140. I ef Justice was guided by the authoritative cta t e two cases and then went on to make the pronouncement relied upon I Counsel for the aintiff. In i ar he cit Diplock the latter case, namely: "The rule, which is the t of the ts, is not one on which a t is under any on to r~lv. It may be to his interest that ac on d particul if ta on od for cause ac on has not " In the other recent Court of Appeal decision, I No. 95 originat from Tortola, GUSTAVUS FRETT and IDALIA DAVIES, the doct of waiver was i form f wa dif rent to the kind sort to i -Lil ?RETT the spondents, through their icitors, consent t to t continuation of act after a lapse of 27 though mention was made of waiver t St. case the facts did not call for t application of waiver. In t case the llants had entered appearance t cause or matter on November 4, 1991 and thereafter neither t any filed any document t rein until August 31, 1993 more months later. I come back to the sole issue in t s case, name ,whether the ling of the request for hearing by the Defendancs about 22 months a ter the filing of their defence and countercla constitut waiver to deprive them of an order under e 11(1 (a) the Rules of the Supreme Court. I DANIEL GIRARD against RICK I sought to analyse the ision of the Council in t Barbuda case and I sa Council referred to the effect of our rule to .K. rules as draconian but they said as it seem, ir judgment, the inescapable consequence t Order 34 is that the Plaintiff's action can become desert and reafter abandoned and cannot be restored to Ii t Court no discretion to relieve against it. Court to the e to t Letter. this quest of waiver I re to Volume of the Fourth tion of sbury's Laws of states IIWaiver is the abandonment of a ght such a way t o party is en tled to pl abandonment way of on and avoi if the qht s asserted, and is ther express or ied from conduct waiver must always an inten act wi II Now if the solicitor the Defendants who must aware or have been aware of t ef of Order 34 e 11 1 a) s a document asking for matter to proceed in my j he must deemed to have waived the effect of the rule. I refer again to the passage cited from 's speech I sacs' case that it may to the st of the De s that he action should proceed, icularly if the I the cause of action has not expired. I deduce from t that Lord Diplock is saying that even if t Def s were to succeed on the summons, if the limitation period for the cause of ion had nnt red the aintiff could yet itute a f suit on the matter. So the Defendants must not think excused from answering t suit merely because they happen to successful on such a summons. All they d achieve is a In tri and costs. this case the action trespass was institut on 26, 991. My reading of Articles 2103, 2112, 2119, ? 1 ? 1 " ..J... '"' ..l.. 2122 he Civil Code, the last four being to t first, not cause me to conclude that s action is c to expiry of I tat would t ss summons. A PI iff is as latory t of s claim is not wort f costs so no r to effect. A.N.J. MATTHEW sne

Suit No. 278 of 1991 Matthew, J Delivered: 09/02/96