The Gleaner Company Ltd v Foote
| Jurisdiction | Jamaica |
| Judge | Carberry, J.A.,Zacca, P,Rowe, J.A. |
| Judgment Date | 04 June 1982 |
| Neutral Citation | JM 1982 CA 27 |
| Docket Number | Civil Appeal No. 20 of 1981 |
| Court | Court of Appeal (Jamaica) |
| Date | 04 June 1982 |
Court of Appeal
Zacca, P., Carberry, J.A., Rowe, J.A.
Civil Appeal No. 20 of 1981
Mr. Emil George, Q.C. for the defendant/appellant.
Mr. Hugh Levy for the plaintiff/respondent.
Practice and procedure - Writ — Endorsement — Amendment — Limitation of action
Facts: Respondent filed writ-claiming damages for libel from appellant company. Original endorsement referred to libel published on April 22, 1974 and also “published on diverse occasions subsequently up to and including the month of February, 1975”. Summons to amend endorsement on writ to refer to specific publication of April 27, 1974. Allegation in amendment that libel was republished on 28 March 1975. Application filed on March 12, 1981, heard three days later and leave to amend granted on April 7, 1981. Application barely within six-year period of limitation, which would have expired on 28 March 1981. Grant of leave outside period
Held: Appeal allowed in part. Allegation in amendment introduced a fresh course of action after it had become statute barred.
This is an appeal from the order of the master made on the 7th April, 1981, giving the plaintiff/respondent leave to amend the endorsement on his writ.
The record placed before us is meagre in the extreme. There are no notes of the argument that took place before the master, nor any indication of what the argument was about, or the reasons that led the master to make his order granting the order in terms of the Summons as amended. The formal order appears at page 12 of the Record. What is the history of the matter?
It appears that on the 16th September, 1980, the plaintiff through his attorney-at-law Mr. Hugh Levy Jnr., filed a writ claiming damages for libel, from the defendant company.
The original endorsement reads:
The plaintiff's claim against the defendant is to recover damages for libel contained in the issue of the Daily Gleaner of the 22nd April, 1974 and published on divers occasions subsequently up to and including the month of February 1975.”
The words underlined in the endorsement above represent the words, which the plaintiff sought in his amendment to delete, and to replace with others set out below.
Two preliminary comments might be made at this stage: the endorsement on the writ lacks particularity, (though in this respect the model endorsement set out in the Jamaica Civil Procedure Code Schedule II suffers similarly); as I understand it, each publication of a libel represents a separate cause of action, and in practice should be specified in the writ. Paragraph 6 of the Civil Procedure Code requires that the writ should be “endorsed with a statement of the nature of the claim made, or (i.e. and) of the remedy required in the action.” (Compare the new U.K. R.S.C. O. 6 r.2.)
Paragraph 10 of our Code says that it is not essential to set forth the precise ground of complaint, while paragraph 11 requires the endorsement to be the effect of the prescribed form in Schedule II applicable; but paragraph 17 states:
“In actions for libel the endorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought.”
Paragraph 194 of our Code states however:
“Whenever a statement of claim is filed the plaintiff may therein alter, modify or extend, his claim without any amendment of the endorsement of the writ.”
This corresponds to the new U.K. R.S.C. O. 18 r.15 (2), but our rules lack the preliminary sentence:
“A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to the cause of action so mentioned; but subject to that…” (it continues as in our Code, para. 194 above.)
As the rules indicate, subject to a particular exception which is crucial in this case and is discussed at length later, the Statement of Claim subsequently delivered may cure the lack of particularity in the endorsement on the writ, and defective writs may be cured by the Statement of Claim, whether it be delivered with the writ: Hill v. Luton Corporation [1951] 2 K.B. 387; or subsequently: Grounsell v. Cuthell & Linley [1952] 2 Q.B. 673 and see generally Pontin v. Wood [1962] 1 Q.B. 594; [1962] 1 All E.R. 294; and Sterman v. Moore (E.W. & J.) [1970] 1 Q.B. 596; [1970] 1 All E.R. 581.
The second comment that may be made is to observe that at the time this writ was filed the six year period of limitation fixed by the U.K. Imperial Statute - the Limitation Act of 1623, which mirabile dictu, we still use in Jamaica, had expired or very nearly expired in respect of the publications alleged.
On the 12th March, 1981, by a summons returnable on the 24th March, 1981, Mr. Levy took out on behalf of the plaintiff/respondent a summons to amend the endorsement on the writ. We were informed by counsel that this was in fact the second such summons: an earlier one to the same effect had been filed on 9th February, 1981, ex-parte, for hearing on the 24th February, 1981, when it was adjourned to 11th March, for service on the defendant/appellant. On11th March it was adjourned sine die when Mr. Levy failed to appear: hence the fresh summons of the 12th March 1981.
This summons sought (a) to delete the words underlined in the original endorsement above, and (b) to substitute instead: (contained):
“… in articles headed “TWO BUSINESSMEN UNDER POLICE PROBE AFTER CAPTURE OF PILOT AT AIRSTRIP” and libel published by means of the juxtaposition of the said article with one headed: “U.S. PILOT, PLANE DETEAINED” as well as by means of an article headed: “POLICE STEP UP DRIVE TO CRACK GUN-GANJA RING” and printed by the defendant and published on page one of the issue of “The Daily Gleaner” newspaper dated 22nd April, 1974 and 27th April, 1974 and republished in March, 1975.”
It appears from comparing the amendment sought in this summons with that which appears in the formal order, that it was amended by deleting the underlined “March, 1975” above, and substituting “on the 28th March, 1975.”
The proposed amendment brought a welcome degree of particularity to the previous endorsement's “published on divers occasions subsequently up to and including the month of February, 1975,” and complies with paragraph 17 of the Code, set out above.
The proposed amendment also brought strenuous opposition from the defendant/appellant, though we have no record of what was argued, we assume it was similar to the argument taken before us on appeal.
After argument on the 24th of March, 1981, the master reserved his decision and it was adjourned to the 1st April, 1981; on the 1st April it was further adjourned to the 7th April, 1981, for reasons which we cannot tell, but on the 7th April, 1981 the master gave his decision: he made an order in terms of the summons as amended, giving the defendant the costs thereof, and also leave to appeal to this court.
The application to amend was made under paragraph 259 of the Code:
“259. The court or a judge may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner, and on such terms as may be just, and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties.”
This paragraph in the Jamaica Civil Procedure Code corresponds practically verbatim to the old U.K. R.S.C. O. 28 r.1; it has been replaced in the U.K. by Order 20 r.5, which contains some alterations very significant to this case, which we have not so far incorporated in our Code.
It is useful at this time also to refer to the provisions of paragraphs 265, 266 and 267 of the Code. Paragraph 265 “Time to amend by leave” provides for the time within which a party who has secured leave to amend must actually amend. It is, if not specified in the order giving leave, fourteen days from the date of the order. If the amendment is not made within that period, the order to amend will become void, unless time is extended.
Paragraph 266 “How amendments to be made” provides how the amendment is to be made: inter alia it is to be filed, and paragraph 267 “Entry of amendment on record” provides that the party procuring an amendment shall cause the registrar to amend the pleadings, mark the amendment with the date of the order, if any, under which the same is so amended, “and of the day on which such amendment is made,…”
These paragraphs correspond to the old U.K. S.C.R. O. 28, r.7, 8, and 9 replaced by the new U.K. S.C.R. O. 20, r.9 and 10.
The significance of these provisions relating to the machinery for making amendments is that they clearly indicate that the amendment is not made when the order granting leave to make it is passed or approved, but that the amendment is made when the consequential steps have been followed, particularly in filing the same in the registry, and getting the registrar to note the amendments on the court's copy of same. After all a party may seek and get leave to mend, and decide not to do so after all, and the rules provide that unless he makes the actual amendment within the time indicated in paragraph 265, the leave lapses, and it is as if the amendment had never been made, (unless the time is extended). The distinction between getting leave to amend and actually amending appears not only in the rules, but also in the cases, some of which are mentioned below.
It does not appear anywhere in the record in the instant case that the plaintiff has in fact actually yet made the amendment which he got leave to make. He could not have done so before the 7th April, 1981, when he got leave to amend from the master, and he does not...
To continue reading
Request your trial