Moving Target Ltd Carla Briggs Appellants v John Layne Respondent [ECSC]
| Jurisdiction | Grenada |
| Judge | SATROHAN SINGH JA,SATROHAN SINGH,Justice of Appeal,ALBERT REDHEAD,ALBERT MATTHEW |
| Judgment Date | 22 March 1999 |
| Judgment citation (vLex) | [1999] ECSC J0322-1 |
| Court | Court of Appeal (Grenada) |
| Docket Number | CIVIL APPEAL NO. 16 OF 1998 |
| Date | 22 March 1999 |
IN THE COURT OF APPEAL
The Honourable Mr. Satrohan Singh Justice of Appeal
The Honourable Mr. Albert Redhead Justice of Appeal
The Honourable Mr. Albert Matthew Justice of Appeal (Ag.)
CIVIL APPEAL NO. 16 OF 1998
Dr. Francis Alexis for the appellants
Mrs. Winifred Duncan-Phillip for the respondent
This appeal germinated from an interlocutory order made by St. Paul J on May 22, 1998 in a libel suit brought by the respondent against one Errol Maitland as owner and publisher of the Grenada Informer Newspaper, and the second named appellant Carla Briggs. By that order, the Learned Judge, on the written application of Errol Maitland, removed the name of Errol Maitland as a defendant from those proceedings, and, on the oral application of the respondent substituted therefor the name Moving Target Limited, the first named appellant.
The centre of gravity of the appeal is the question whether St. Paul J was correct in responding favourably to the substitution requested by the respondent, when in doing so, he may have been depriving the first named appellant of a defence under the Limitation Act, had the respondent sought to bring fresh proceedings against this appellant on the same cause of action. The Learned Judge made the substitution on the ground that the amendment sought was only to correct the name of a party: The rule relied on by the trial judge when he granted the application was to be found in Order 20 R 5 of the Rules of the Supreme Court1970 which so far as is material, provides as follows:
5 "(1) Subject to Order 15, rules 6,7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.
(2) 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.
(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.
At the hearing of the appeal, it was not disputed that the respondent made a mistake when he named Errol Maitland instead of Moving Target Ltd., as the proprietor, printer and publisher of the impugned newspaper. The issues for our determination are (1) whether or not the mistake was a genuine mistake that was not misleading, or such as to cause any reasonable doubt as to the identity of the person intended to be sued and (2) whether the amendment should have been made when to do so would have been to deprive the first named appellant of a possible complete defence under the Limitation Acts, had he been sued in a fresh suit.
Addressing the issue of the mistake, the transcript before us disclosed that the suit in this appeal was filed on October 1, 1993 with the first named defendant being Errol Maitland. On October 28, 1993, a statement of claim was filed. Therein, it was disclosed that Errol Maitland was being sued as the owner and publisher of the "Grenada Informer." In the teeth of this pleading was the existence of a statutory declaration made pursuant to the Newspapers Ordinance Cap 197 and declared to by the Secretary of the first named appellant on November 15, 1985, wherein it is stated that the first named appellant was and is the proprietor, printer and publisher of the aforesaid newspaper. Given those facts, it is clear that at no time was Errol Maitland the owner and publisher of the newspaper.
In response to the statement of claim, Errol Maitland filed his defence on November 12, 1993. Therein, and despite the statutory declaration, he admitted that he was the owner and the publisher of the Grenada Informer. It was not until he filed his application to strike out, in 1998, after the limitation period for the launching of a libel suit had expired, did he disclose that the first named appellant was really the owner and publisher of the said newspaper. It was at that stage that the respondent applied that Moving Target Ltd. be substituted for Errol Maitland as the owner and publisher of the newspaper.
From these disclosures, it is reasonable to conclude: (1) that at all times the respondent intended the first named defendant in the suit to be the owner and publisher of the Grenada Informer, (2) that he was under a mistaken perception as to who that person was and (3) that mistaken perception was compounded by the filed defence admitting that Errol Maitland was that person. It was disclosed to this Court that Errol Maitland is a Director of Moving Target Ltd., more or less the alter ego of the company, yet despite the statutory declaration, he made this admission in his defence.
Given these circumstances, it is reasonable to assume that confusion in the mind of the respondent must have been manifest and must have been agitated by the defence filed by Errol Maitland. I therefore cannot conclude that the mistake which was corrected by St. Paul J, was not a genuine mistake or was such as to cause any reasonable doubt to Errol Maitland or the first named appellant as to the identity of the person intended to be sued. The respondent, when he erroneously inserted the name Errol Maitland as a defendant, intended to sue the owner and publisher of the newspaper. That is patent from his statement of claim. Such owner and publisher is the first named appellant. This was a fact which must have been well known to both Maitland and the first appellant. I therefore agree with the learned trial judge that the application before him was merely to correct the name of a party.
Addressing the issue of the denial of the first named appellant of the possible availability of a defence under the Limitation Acts should the amendment be granted, giving a literal interpretation without more, to the simple words used in O 20 R 5 as St. Paul J obviously did, there appears to be no difficulty in determining the appeal. As I understand the rule, simply put, RSC Order 20 R 5 gave the Court power in a case of mistaken identity, to substitute a new defendant for the defendant originally sued, notwithstanding that a relevant period of limitation had expired. However, decisions emanating from the Courts in England, have made the issue one of a thorny nature. These decisions show the Courts in England indulging in judicial confusion in their application of the rule.
Prior to the existence of this rule, there was a long line of authority which show that once a person had acquired the benefit of a Statute of Limitation, he was entitled as of right on retaining that benefit and that the Court would not deprive him of that benefit by allowing an amendment of the writ or of the pleadings. [See Mabro -v- Eagle Star and British Dominions Insurance Co., Ltd. (1932) All ER Rep. 411:Davies -v- Elsby Brothers Ltd. (1960) 3 All ER 672:Hilton -v- Sutton Steam Laundry (1945) 2 All ER 425. However, in Mitchell -v- Harris Engineering Co. Ltd., (1967) 2 All ER 682,Master of the Rolls Denning, disagreed with the dicta in those cases which spoke of a defendant having a "right" to the benefit of...
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