201221 Fidelity Bank (Cayman) Ltd v Brody Isaiah Thomas – Ruling (as amended)
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IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Cause No.: G 126 of 2019
BETWEEN
FIDELITY BANK (CAYMAN) LTD
Plaintiff
AND
BRODY ISAIAH THOMAS
Defendant
ON THE PAPERS
Hon. Mme Justice Margaret Ramsay-Hale
Date of Decision:
21 December 2020
Application to renew writ - discretion to renew writ after expiry of validity - successive renewals in one
application not permitted Chappell v Cooper [1980] 1 WLR. 957 – when leave to amend required
RULING
1.
By ex parte summons filed on 6 November 2020, the Plaintiff, Fidelity Bank (Cayman)
Ltd, seeks leave to amend their Writ of summons and Statement of Claim dated 31 July
2019 (together “the Writ”), pursuant to GCR Order 20 rule 5(2). They also seek to extend
the validity of the Writ to expire four months from the date of the order of the Court
pursuant to GCR Order 6 rule 8(2).
2.
Campbells, who act for the Plaintiff, rely in support of their summons on the affidavit of
Garrett Verling, an employee of the firm. His evidence is that a process server was
instructed to serve the Writ and Statement of Claim on the Defendant, Mr. Thomas, on 31
July 2019. On 23 September 2019, Campbell’s contacted the process server to ascertain
whether the documents had been served. The process server responded the same day and
advised that the Defendant no longer lived at the address provided and he could not be
contacted by phone, and they were, therefore, unable to effect service.
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3.
The Writ, which was valid under the Rules for 4 months to 30 November 2019, was served
on the Defendant on 23 December 2019. The Defendant signed the cover letter
acknowledging receipt of the documents but did not file an Acknowledgement of Service
with the Court.
4.
As the Writ was served after it had expired, it was invalid and its service on the Defendant
ineffective to command his appearance at court.
5.
The Plaintiff now seeks to renew the Writ pursuant to Order 6 rule 8 (2) which provides:
“(2) Subject to paragraph (3), where a writ has not been served on
a defendant, the Court may by order extend the validity of the writ
from time to time for such period, not exceeding 4 months at any
one time, beginning with the day next following that on which it
would otherwise expire, as may be specified in the order, if an
application for extension is made to the Court before that day or such later
day (if any) as the Court may allow.”
6.
The effect of the rule is that the Court may only extend the validity of the Writ for 4 months
on any application. Further, the renewed period of 4 months would begin on the day after
the date on which it would expire, and not from the date of the order of the Court as sought
by the Plaintiff in this application.
7.
In this case, the extension would be to 1 April 2020, a date long past. To bring this Writ up
to date, the Court would have to allow three renewals1 in this application, which is not
permitted. This is set out at note 6/8/2 of the White Book, where the learned authors state
that “the laxer practice of allowing two or more successive renewals to bring the Writ up
to date is no longer available since Chappell v Cooper [1980] 1 WLR. 957.”
8.
The Rules also provide that the application to renew must be made before the expiry of the
Writ. While the Court has the power to permit a later application, that later application
1 1 December to 1 April, 2 April to 2 August, 3 August to 3 December
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must be made within the appropriate period of the first expiry which, in this case, was
before 1 April 2020.
9.
The application is hopeless.
10.
The Plaintiff also seeks leave to amend the Writ pursuant to Order 20 rule 5(2) which
provides:
“Where an application to the Court for leave to make the amendment
mentioned in paragraph (3), (4) or (5) is made after any relevant period
of limitation current at the date of issue of the writ has expired, the
Court may nevertheless grant such leave in the circumstances
mentioned in that paragraph if it thinks it just to do so.”
11.
I am not sure if the application to amend the Writ is intended to bring it up to date for the
purposes of the application to renew but if it were, it would be misconceived as even if
leave were granted, the date of the Writ would remain the same, that is to say 31 July 2019:
“When an amendment is made to the Writ, the amendment dates back to the date of the
original issue of the Writ: White Book at Note 20/3/2.
12.
The applicable rule in this case where the Writ has not been served is GCR Order 20 r.1
(3) (c) which provides that leave is not required to amend a Writ which has not been served.
The Plaintiff would be at liberty to amend the Writ without leave, had its validity not
expired. As the Writ cannot now be renewed, the application to amend is redundant.
13.
For the foregoing reasons, the Plaintiff’s ex parte summons is dismissed.
Hon Mme Justice Ramsay-Hale
Judge of the Grand Court