Chisolm and Company Development Ltd v Norval Henry

• Jurisdiction: Jamaica
• Judge: Wint-Blair, J
• Judgment Date: 12 October 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013HCV04130

Between

Chisolm and Company Development Ltd

Claimant

and

Norval Henry

1 ^st Defendant

and

Cleveroy Dale

2 ^nd Defendant

and

Kevin Chin

3 ^rd Defendant

and

I Will Survive-Owner

4 ^th Defendant

and

Persons Unknown

5 ^th Defendant

and

My Asmus H16-Owner

6 ^th Defendant

and

Don't Rush it Rn 83–Owner

7 ^th Defendant

CLAIM NO. 2013HCV04130

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Tort — Whether unnamed defendant can be sued — Whether unnamed defendant can be served with claim — Whether alternative service established — Groyne constructed under licence — Whether land amassed by groyne belongs to claimant — Whether beneficial interest in groyne — Trespass — The Beach Control Act — The Main Roads Act — Civil Procedure Rules, Rules 5.13, 5.14

In Open Court

Miss Julliet Mair instructed by Riam Essor Law for the Claimant

Mrs Denise Senior – Smith instructed by Oswest Senior-Smith & Company for the 1st Defendant

Wint-Blair, J

INTRODUCTION

1 The claimant, Chisholm and Company Development Limited claims against the defendants, Norval Henry, Cleveroy Dale, Kevin Chin, and the owners of fishing vessels, I Will Survive, My Asmush H-16, Don't Rush It Rn 83 as well as persons unknown in damages for trespass to property. All admissible evidence has been considered and this decision will set out only that which was found to be relevant material for these findings.

2 By way of an Amended Claim Form filed on July 16, 2014, the claimant seeks the following orders:

• 1. Damages for trespass on land belonging to the Claimant being the land known as the old abandoned Main Road, adjacent to the Claimant's property registered at Volume 945 Folio 514 and leading down to the western boundary of Volume 421 Folio 28 which adjoins the Rio Nuevo fishing beach and newly amassed land adjacent to Volume 421 Folio 28 as a result of a groyne designed and approved by NEPA built and installed by the Claimant (hereinafter “Claimant's land”).

• 2. Restitution and or damages for the loss, cost, expenses and hardship the Claimant endured and is enduring as a result of the Defendants' illegal use and occupation of the Claimant's land for the Defendants' sole benefit and gain and under the common law principle of unjust enrichment.

• 3. Recovery of possession from the Defendants of those portions of the Claimant's land as listed in paragraph 1 above.

• 4. Damages for use and occupation of the Claimant's land by the Defendants.

• 5. Aggravated and exemplary damages against the Defendants on the basis that the Defendant trespassed, illegally occupied, used and possessed the Claimant's land solely for their gain and benefit, and at the Claimant's detriment and the Defendants further enticed, lured, inveigled, encouraged, embolden[sic], maintained, sustained, encouraged and support other illegal occupants on the Claimant's land for many years commencing 2010:

  • I. with deliberate and contumelious disregard for the Claimants rights as owner;

  • II. driven by the desire to expand so as to earn and profit at the expense of the owner;

  • III. by the exercise of continuing and truly outrageous conduct directed at the Claimant;

  and for this purpose the Claimant ask[sic] for an Order for an account to be taken of all earnings and benefit by the Defendants pursuant to the use, possession and trespass on the Claimant's land.

• 6. An Order directed to the Defendants to remove all evidence of its occupation of the Claimant's land.

• 7. Liberty and Costs

• 8. Such other and further relief as this Court may deem just and appropriate.

Service on the unnamed defendants

3 The claimant is a company registered under the laws of Jamaica and the owner of lands in the parish of St. Mary, registered at Volume 421 Folio 28 and Volume 945 Folio 514 of the Register Book of Titles. The claimant has sued ‘persons unknown’ who fall into the category of the unnamed defendant. It is settled law that it is the service of the claim form which subjects a defendant to the court's jurisdiction. In the case at bar the question of service has arisen.

4 In the case of Cameron (Respondent) v Liverpool Victoria Insurance Co Ltd (Appellant) 1 the United Kingdom Supreme Court considered a hit and run case

where the offending driver could not be identified. An injured motorist had applied to amend her claim to join “[t]he person unknown driving [the other vehicle] who collided with [the claimant's vehicle] on [the date of the collision]”. The Court of Appeal granted the application, while the Supreme Court unanimously allowed the appeal and considered the history and the law related to the unnamed defendant

5 At paragraph 1, of the judgment of the UK Supreme Court, the question at issue on the appeal was: in what circumstances is it permissible to sue an unnamed defendant?

6 Lord Sumption looked at the British Civil Procedure Rules (“UK CPR”) and said that it neither “ expressly authorise[d] nor expressly prohibit[ed] exceptions to the general rule that actions against unnamed parties are permissible only against trespassers.”

7 I note here that the UK CPR contains a Part 55 entirely devoted to trespass to land. This statement of the law by Lord Sumption has to be read against that background. He also looked at the rules governing how a defendant was to be named in such a suit and noted the existence of a practice direction in that jurisdiction in respect of service. We have no such practice direction in Jamaica in respect of an unnamed defendant.

8 Lord Sumption identified the critical question as a matter of law, that being “the basis of the court's jurisdiction over parties, and in what (if any) circumstances can jurisdiction be exercised on that basis against persons who cannot be named. 2

“13. In approaching this question, it is necessary to distinguish between two kinds of case in which the defendant cannot be named, to which different considerations apply. The first category comprises anonymous defendants who are identifiable but whose names are unknown. Squatters occupying a property are, for example, identifiable by their location, although they cannot be named. The second category comprises

defendants, such as most hit and run drivers, who are not only anonymous but cannot even be identified. The distinction is that in the first category the defendant is described in a way that makes it possible in principle to locate or communicate with him and to know without further inquiry whether he is the same as the person described in the claim form, whereas in the second category it is not. 3

14. This appeal is primarily concerned with the issue or amendment of the claim form. It is not directly concerned with its service, which occurs under the rules up to four months after issue, subject to extension by order of the court. There is no doubt that a claim form may be issued against a named defendant, although it is not yet known where or how or indeed whether he can in practice be served. But the legitimacy of issuing or amending a claim form so as to sue an unnamed defendant can properly be tested by asking whether it is conceptually (not just practically) possible to serve it. The court generally acts in personam. Although an action is completely constituted on the issue of the claim form, for example for the purpose of stopping the running of a limitation period, the general rule is that “service of originating process is the act by which the defendant is subjected to the court's jurisdiction”: Barton v Wright Hassall LLP [2018] 1 WLR 1119, para 8. 4

15. An identifiable but anonymous defendant can be served with the claim form or other originating process, if necessary by alternative service under CPR 6.15. This is because it is possible to locate or communicate with the defendant and to identify him as the person described in the claim form. Thus, in proceedings against anonymous trespassers under CPR 55.3(4), service must be effected in accordance with CPR 55.6 by attaching copies of the documents to the main door or placing them in some other prominent place on the land where the trespassers are to be found, and posting them if practical through the letter box.

16. One does not, however, identify an unknown person simply by referring to something that he has done in the past. “The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013”, does not identify anyone. It does not enable one to know whether any particular person is the one referred to. Nor is there any specific interim relief such as an injunction which can be enforced in a way that will bring the proceedings to his attention. The impossibility of service in such a case is due not just to the fact that the defendant cannot be found but to the fact that it is not known who the defendant is. The problem is conceptual, and not just practical. It is true that the publicity attending the proceedings may sometimes make it possible to speculate that the wrongdoer knows about them. But service is an act of the court, or of the claimant acting under rules of court. It cannot be enough that the wrongdoer himself knows who he is.

17. This is, in my view, a more serious problem than the courts, in their more recent decisions, have recognised. Justice in legal proceedings must be available to both sides. It is a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard. The principle is perhaps self-evident. The clearest statements are to be found in the case law about the enforcement of foreign judgments at common law. The English courts will not enforce or recognise a foreign judgment, even if it has been given by a court of competent jurisdiction, if the judgment debtor had no sufficient notice of the proceedings. The reason is that such a judgment will...