Caribbean Pirates Theme Park Ltd v Irish Rover Ltd

• Jurisdiction: Jamaica
• Judge: Batts J.,David Batts,Puisne
• Judgment Date: 29 May 2015
• Neutral Citation: [2015] JMSC Civ 158
• Docket Number: CLAIM NO. 2013HCV 06575
• Court: Supreme Court (Jamaica)
• Date: 29 May 2015

[2015] JMSC Civ. 158

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2013HCV 06575

Between

Caribbean Pirates Theme Park Limited

Applicant

and

Irish Rover Limited

Defendant

Denise Senior-Smith for Claimant instructed by Oswest Senior Smith & Co.

Tameka Smith , O Gordon for Defendant instructed by Messrs Frater Ennis & Gordon.

Application to strike out — Named Claimant non-existent — Application to amend — whether name of party can be changed — Whether claim a nullity

In Chambers

Coram: Batts J.

1 This Judgement was delivered orally on the 29 ^th day of May 2015 and I now reduce it to writing. There were four (4) applications before me:

• a) The Claimant's Notice of Application filed on the 31 ^st March 2014 for the striking out of the Defendant's acknowledgment of service and for abridgment of time in which to file the application. The Claimant indicated this application was not being pursued.

• b) The Defendant's application filed on the 1 ^st April 2014 for permission to file acknowledgment of service out of time, permission to file defence and counterclaim and that acknowledgment and defence and counterclaim as filed do stand. The Claimant indicated that this application was not being opposed.

• c) The Defendant's Notice of Application filed on the 4 ^th April 2014 that the Claimant's statement of case be struck out and

• d) Claimant's application filed on the 4 ^th May 2015 that the name of the Claimant be amended to read

‘Leon Messam and Jane Messam T/A Caribbean Pirates Theme Park’

2 If the Defendant's application to strike out the statement of case succeeds the matter will be at an end and no further orders will be required. It is that application on which I heard submissions. The application by the Claimant to amend was the alter ego of that application so the submissions in that regard were so to speak subsumed.

3 The Defendant's counsel, and I hope I do her no disservice in this summary, contended that:

• a) The defect in the Claimant's statement of case is such that it cannot be cured by amendment

• b) This is because the named Claimant ‘Caribbean Pirates Theme Park Ltd’ has never existed. There is no such company.

• c) As a matter of public policy the matter should be struck out as it is illegal to trade in a corporate name where such a corporation does not exist. To file an action in the name of a non-existent company is to break that law and should be discouraged.

• d) A claim filed in the name of a non-existent entity is a nullity that cannot be cured.

4 The Defendant relied upon the affidavits of Tamika Smith dated 1 ^st April 2014, 8 ^th April 2014 and 20 ^th May 2015. Permission to rely on the latter affidavit was expressly granted by me at the resumed hearing of that date. The Claimant relied on the affidavit of Leon Messam dated and filed on the 7 ^th May 2015. Both parties filed written submissions. I have carefully perused the respective affidavits and submissions.

5 Having done so I am satisfied that the Defendant's application to strike out the statement of case ought to be dismissed and that an order is to be made to amend the claim and particulars of claim by changing the name of the Claimant in the manner applied for. The Defendant's application filed on the 1 ^st April 2014 which was not opposed will be granted.

6 My reasons can be shortly stated. It is however out of deference to a decision of my brother Sykes J, on which the Defendant placed great reliance, that I have decided to deliver these reasons for judgment.

7 The Civil Procedure Rules provide in rule 20 for amendments to the statements of case. Rules 19.4 and 20.6 provide for substitution of parties and amendments to the name of parties where a limitation period has passed. In such circumstances an amendment to correct a mistake as to the name of a party should only be made [rule20.6.(2)] :

• a) Where the mistake was genuine and

• b) Where the mistake was not one which would cause reasonable doubt as to what the party intended.

It is implicit and indeed necessarily inferential from this rule that on an application to amend in order to change the name of a party where no limitation period has passed, those limiting factors are not mandatory. In such a case reliance on the general principles will suffice.

8 This interpretation of the rules is consistent with the overriding objective. This is because where there has been no expiration of a limitation period a party can merely refile a corrected claim to cure a defect. In the absence of prejudice, and all other things being equal, it would be a waste of court time and parties' resources, for a court to strike out an action in the full knowledge that it can be refiled with the defect corrected, the next day.

9 In the matter before me it is conceded that there is no limitation of action time bar. The cause of action is still live. The claim can be refiled without the danger of such a defence being raised. The Defendant's counsel nevertheless wishes it struck out. They contend that as filed, the claim is a nullity and never existed. They say the claim should therefore be struck out and the order for injunction discharged. The Claimant relies primarily on the cases of Lazard Brothers v Midland Bank [1933] AC 289, Caribbean Development Consultants v Lloyd Gibson [2004] JMSC23 (unreported judgment of Sykes J (Ag) delivered on the 25 ^th May 2004) and International Bulk Shipping and Services v Minerals and Metal Trading Corp of India (1996) 1ALL ER 1017

10 Sykes J (acting) as he then was relied on the other two English decisions when deciding in 2004 that :

‘…….. there cannot be a substitution of parties under rule 19.4 after the expiration of a limitation period where the original proceeding is a nullity. One of the ways in which a nullity arises is where one party to the suit is not a legal entity. CDC is not a legal entity. The original proceeding was therefore a nullity. If this amendment were allowed it would bring into existence what never existed in law .‘

11 I respectfully decline to follow that decision. In the first place there is a clear distinction between the facts of that case and the one before me. Here no limitation period has passed. So in a restricted sense the case does not apply.

12 However on the broader question of principle I also respectfully depart from the conclusion of my brother. This is because it is rather artificial and with respect not consonant with logic to say that a claim is a nullity and hence never existed, even after there have been documents filed in response and a court ordered injunction in existence for over a year. What of the undertaking as to damages? Can the Claimant now say since the claim never existed my undertaking never did? How about costs, on what basis does a court order costs for a claim that never existed?

13 An impugned law, regulation, decision of an inferior tribunal or court's process is presumed valid until and unless declared by a court to be void. If avoided it is most often treated as void ab initio. However there are circumstances and occasions when it may be voided prospectively or only for some purposes or not at all. As per Lord Phillips:

‘ What it all comes to is this, Subordinate legislation, executive orders and the likes are presumed to be lawful. If and when however, they are successfully challenged and found ultra vires, generally speaking it is as if they had never had any legal effect at all. Their nullification is ordinarily retrospective rather than merely prospective. There may be occasions when declarations of invalidity are made prospectively only or are made for the benefit of some but not others. Similarly, there may be occasions when executive orders, or acts are found to have legal consequences for some at least (sometimes called ‘third actors’) during the period before their invalidity is recognized by the court — see for example Percy v Hall (1977) QB 924. All these issues were left open by the House in Boddington ’

Mossel (Jamaica) Ltd (T/A Digicel) v OUR at paragraph 44 . [2010] UK PC 1 P.C. Appeal Number 0079/2009 at paragraph 44.

14 Let me say immediately that on the facts before him the decision of Sykes J can be fully supported on other grounds. It does not seem, indeed it clearly was not, a case of an alter ego error as to identity. This is because at the time of negotiations the specific issue of the Claimant's capacity to sue was raised by the opposing party. Their legal advisers, this notwithstanding, maintained the position as to the capacity of CDC and took no corrective measure within the period of limitation. Against that background it is difficult to accept that a ‘genuine’ error had been made. The company had several ‘directors’ who gave instructions, and although Sykes J make no express finding it does seems that there was no clarity as to who the Claimant was or ought to have been.

15 In the matter at bar, the claim relates to breach of contract, goodwill, detinue and conversion. The parties are private companies and / or partnerships. The Defendant was never in doubt that it was trading with Leon Messam and Jane Messam who at all times operated with or through the name Caribbean Theme Park Ltd. Such an entity had never been incorporated. However the Defendants did contract with it (or them). Further they entered an acknowledgment of service to the claim and filed and served a defence and counterclaim. These documents do the following:

• a) Allege that the Claimant is not a duly incorporated company but rather is a registered business under the law of Jamaica

• b) At paragraph (4) et seq says ‘the parties entered into the following agreements’ and goes on to give a full and comprehensive response to the claim.

It is clear that in the case before me the Defendant...