Tajhieve West v Bayview Echo Resort & Spa
| Jurisdiction | Jamaica |
| Judge | Jarrett, J. |
| Judgment Date | 01 December 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2018HCV01726 |
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[2023] JSMC Civ 229
Jarrett, J.
CLAIM NO. 2018HCV01726
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Mr Raymond Samuels instructed by Samuels Samuels for the claimant
Mr Lorenzo Eccleston instructed by Temple Law for the 1 st defendant
The question I must decide is whether it is permissible for the claimant, Tajhieve West, to apply under CPR 19.4 to substitute Island Coach Limited and/or Island Eco Resort and Spa Limited t/a Bayview Echo Resort and Spa, for the 1 st defendant who has been sued but does not have the capacity to be sued; or whether he can proceed under CPR 20.6 to correct the 1 st defendant's name. I will outline the background facts, review the law, and demonstrate why I have found that the claimant's application under CPR 20.6 is meritorious and ought to be granted.
On June 29, 2015, the claimant who was then a student at the Portland Primary and High School, in the parish of Portland, (“the 3 rd defendant”), fell and allegedly suffered injuries while on the pool deck at premises in Anchovy, known as Bayview Echo Resort and Spa, in the same parish (“the 1 st defendant”). At the time of the incident, the claimant was a member of the graduating class of the 3 rd defendant and was on the premises of the 1 st defendant for purposes of the graduation festivities. Arising from the fall, on May 2, 2018, the claimant filed the instant claim by his then next friend and mother Sarina Berry claiming damages for negligence. In a defence filed on October 3, 2018, the 1 st defendant admitted that it operates an entity in the hospitality industry, in Anchovy, Portland, but averred that Island Coach Limited, trades as Bayview Resort and Spa. On April 19, 2023, it filed a Notice of Application to strike out the claim against it on the basis that it is not a legal entity and therefore it is incapable of being sued. Following on that application, the claimant in his own right, after filing a notice of the cessation of the appointment of his next friend, filed an application on July17, 2023 to amend his statement of case to substitute Island Coach Limited and/or Island Eco Resort and Spa Limited t/a Bayview Echo Resort and Spa for the 1 st defendant, under the provisions of CPR 19.4 and CPR 20.6. Both applications are before me for determination.
I first heard submissions on September 26, 2023, in respect only of the 1 st defendant's application. This was because the claimant's application though filed, had not been given a hearing date and therefore had not been served. When I enquired of the claimant's counsel Mr Raymond Samuels, what he wished me to do in those circumstances, he indicated that I should proceed with the 1 st defendant's application. After hearing submissions on the 1 st defendant's application however, Mr Samuels had a change of heart and asked that I allow him the opportunity to serve the claimant's application and hear that application before ruling on the 1 st defendant's application. With the parties' agreement, I adjourned the 1 st defendant's application part heard and ordered that the claimant serve his application, that that application be heard on October 23, 2023, and that counsel for the 1 st defendant be permitted to make further submissions both in relation to the 1 st defendant's application as well as in response to the claimant's application on October 23, 2023. In the end, I treated both applications as being heard together.
The 1 st defendant's application is simply that it is not a legal entity, it cannot be sued and therefore the claim against it is a nullity. Because the claim is a nullity, there can be no substitution of another defendant in its place. It therefore asks that the claim against it be struck out on the basis that it is an abuse of the process of the court and that the claimant has no reasonable grounds to bring it. It also asks in the alternative that it be removed as a party to the claim, or that summary judgment be entered in its favour on the basis that there is no reasonable prospect of success against it since it is not a legal entity and cannot sue or be sued.
The affidavit in support of the application is that of Gordon Townsend. He says that he is the Managing Director of Island Eco Resort and Spa formerly known as Island Coach Limited. He is also the operator of Bayview Eco Resort and Spa, and his address is in care of Bayview Eco Resort and Spa. According to him, the 1 st defendant has no legal personality, “the legal personality resides with Island Eco Resort and Spa Limited, formerly Island Coach Limited” and therefore the claimant has sued the wrong person. He says further that since the filing of the 1 st defendant's defence five years ago, the limitation period has expired and his attorney -at -law has advised him that there cannot be a substitution of a party after the expiration of the limitation period where the original pleadings are a nullity.
Counsel for the claimant Mr Lorenzo Eccleston argued that while CPR 20.1, 19.4 and 20.6 allow amendments to a statement of case or to add or substitute a party with or without the court's permission at the end of a limitation period, such an amendment will not be permitted where to do so would deprive a litigant of the right to raise a limitation defence. For this proposition he cited the decision in Gregory Grizzle v RUI Jamaicotel Limited and another [2020] JMSC Civ 105. He argued further that in this case, the claim was brought against the 1 st defendant who is not a legal person and who, therefore, cannot sue or be sued. The claim is therefore a nullity, and as such, no amendment can be made to substitute another party especially since the limitation period has expired. To allow the claimant's application would deprive the legal entity, Island Eco Resort and Spa Limited, of the limitation defence. The claimant was aware from 2018 when the 1 st defendant's defence was filed, that he was suing the wrong person, yet nothing was done until now. There was no genuine mistake in this case. It is a case of mistaken identity and not as to name. It is not a mere misnomer.
Heavy reliance was placed by counsel on the decision of Sykes J, as he then was, in Caribbean Development Consultants v Lloyd Gibson, Suit No. CL 323 of 1996, unreported Supreme Court decision delivered on May 25, 2004, in support of the argument that as the claim against the 1 st defendant is a nullity, there can be no amendment to substitute another party. The decision in International Bulk Shipping and Services Limited v Minerals and Metals Trading Corp of India [1996] 1 ALL ER 1017, which was relied on by Sykes J in Caribbean Development Consultants v Lloyd Gibson (supra), was also prayed in aid.
Several authorities were cited for the submission that as the 1 st defendant has no legal status, the claim against it is a nullity. Among them, Wilfred Emmanuel Forbes and another v Miller's Liquor Store (DIST) Limited [2012] JMCA App 13; Lazard Brothers and Company v Midland Bank Limited [1933]AC 289 and The Junior Doctors Association and another v The Attorney General Motion No 21/200 Suit E127/2000, unreported court of appeal decision delivered on July 12, 2000. Counsel asked me not to rely on the decision of Batts J in Caribbean Pirates Theme Park Limited v Irish Rover Limited [2015] JMSC Civ 158, in which the learned judge refused to strike out the claimant's statement of case on the basis that it was not a legal entity. In that decision Batts J declined to follow the earlier decision of Sykes J in Caribbean Development Consultants v Lloyd Gibson (supra). In the case before the court, argued Mr Eccleston, the only appropriate remedy is to strike out the claim.
The claimant's application is under both CPR 19.4 and 20.6. The affidavit in support of the application is that of his counsel, Mr Raymond Samuels and it was filed on July 17, 2023. Mr Samuels says that the claim was made against the defendants with the information the claimant's next friend had at the time. He says that it has been brought to the attention of the claimant that the correct name of the 1 st defendant is Island Coach Limited and/or Island Eco Resort and Spa Limited t/a Bayview Echo Resort & Spa. He says it is necessary to add and or substitute Island Coach Limited and/or Island Eco Resort and Spa Limited t/a Bayview Echo Resort and Spa, so that the court can resolve all the matters in dispute in these proceedings. Counsel says that the 1 st defendant and the party to be substituted are one and the same. To date, the 1 st defendant has participated in these proceedings including filing a full defence and attending mediation. Using the name of the 1 st defendant was a mistake, and the claimant would be severely prejudiced if his application is not granted.
In his submissions, Mr Samuels argued that it is clear from the pleadings that there was a genuine mistake as to name and not identity. The defence shows that the 1 st defendant knows about the matter and gave a comprehensive defence. It therefore cannot now say that there would be prejudice, because if the claimant's application is granted nothing will really change. The documentation sent to the 3 rd defendant in relation to the graduation festivities referred to the name of the 1 st defendant. The identity of the person to be sued is...
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