Caribbean Development Consultants v Lloyd Gibson
| Jurisdiction | Jamaica |
| Judge | Sykes J, (Ag) |
| Judgment Date | 25 May 2004 |
| Judgment citation (vLex) | [2004] 5 JJC 2501 |
| Date | 25 May 2004 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. CL. 323 OF 1996 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
CIVIL PROCEDURE - Statement of case - Amendment - Whether the claimant is a legal entity - In limine point that only legal entities can sue and be sued
A technical point
The survival of this claim depends upon whether the claimant can resist the point made by Mr. McBean. There is no question of filing a new claim if the defendant succeeds. If the preliminary point is successful the defendant would be able to scurry away with both the outstanding professional fees as well as the benefit of the claimant's work.
Mr. McBean has raised a small but important technical point. It may be said with, great justification, that having regard to the facts of this case the defendant is an undeserving person to have the claim dismissed. The defendant did receive the benefit of professional services. Be that as it may, undeserving or not, the point has to be considered and dealt with according to law.
The point can be reduced to this: only legal entities can sue or be sued. The claimant is not a legal entity. Therefore the claimant cannot sue. The legal consequence of this, he says, is that the matter should be struck out unless it can saved by rule 19.4 of the Civil Procedure Rules (CPR). He submits that that rule cannot save this matter from oblivion. A bit of context is necessary.
A sad tale
The affidavits filed by the attorneys for the claimant reveal some degree of carelessness. None of them seemed to have done the elementary research to ensure that Caribbean Development Consultants (CDC) was a legal entity. This "discovery" was made by the attorneys for the defendant.
Mr. Joseph Jarrett, the first legal adviser of the claimant, in his affidavit states that he was first instructed by a Mrs. Schatzi McCarthy who told him that she was a director and consultant of CDC. He said that she also told him that the entity was a registered company. He received further instructions from Mr. McCarthy and Mr. K. Fosu Attah who gave the impression that CDC was a registered company. Mr. Jarrect goes on to say that he drafted documents including a writ of summons and a statement of claim but handed them over to Mr. Nelton Forsythe of the firm of Forsythe and Forsythe. He (Mr. Jarrett) had nothing further to do with the matter.
Mr. Jarrett did not check to see whether CDC had capacity to sue or be sued. He acted upon what he was told by Mrs. McCarthy and the impression given to him by Mr. McCarthy and Mr. Attah. He adds that he has had no contact with CDC or its "directors" since 1996.
The baton was now passed to Forsythe and Forsythe. They too did not make any enquiries to determine whether CDC was a legal entity.
Mr. McBean says in his affidavit that he wrote two letters, dated February 11, 2000 and May 30, 2000, to Forsythe and Forsythe. These letters were not exhibited since they contain other material which counsel says is subject to legal professional privilege. The letters raised the specific issue of whether CDC was a legal entity. These letters were written within the limitation period. Had counsel acted the error could have been corrected. This was not done. Not even the final letter of February 4, 2003 in which the specific threat of striking out the action aroused the legal advisers of CDC from their slumber.
Mr. Nelton Forsythe in his affidavit acknowledged that he received the two letters referred to by Mr. McBean. He said he did not respond because the parties had arrived at a settlement and so there was no need to take any steps to regularize the status of the claimant. He added that the settlement was scuttled because it was unacceptable to all the "directors" of CDC. The release and discharge required by the defendant was no longer forthcoming.
It is agreed that the negotiation broke down. Once the negotiations broke down the litigation mode should have been adopted and all steps taken to have the matter ready for trial. Indeed based upon Mr. Forsythe's affidavit the break down occurred in May 2000, well within the limitation period.
Significantly, he adds that the persons instructing him contacted him infrequently. He understood that they were either the United States of America or Ghana. He says that he never had a telephone number or address for any of the "directors". I should add that even at the hearing Miss Bailey was not able to say with any degree of certainty where her clients were.
In my view there can be little justification for the attorneys' omission to see that the suit was filed in the name of some one or some entity that had capacity in law to maintain the action.
The Submissions
Rule 19.4 states
(1) This Rule applies to a change of parties...
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