Akber Giga v Virgin Holidays Ltd (Part 20 Claimant)
| Jurisdiction | Barbados |
| Judge | Madam Justice Barbara Cooke-Alleyne |
| Judgment Date | 29 October 2021 |
| Neutral Citation | BB 2021 HC 65 |
| Docket Number | Civil Suit No: 921 of 2014 |
| Court | High Court (Barbados) |
and
The Hon. Madam Justice Barbara Cooke-Alleyne QC, Judge of the High Court (Ag.)
Civil Suit No: 921 of 2014
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mr. Chester L. Sue, Attorney-at-Law for the First Defendant
Mr. Roger C Forde QC, Attorney-at-Law for the Second Defendant
This is an application filed by the Second Defendant on November 25, 2020. The Second Defendant seeks the following Orders:
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i) A Declaration that the Memorandum filed in favour of the Claimant Akber Giga is invalid and void
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ii) An Order setting aside the said Memorandum
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iii) A Declaration that the Request for Levy filed on June 26, 2020 in the name of the said Claimant is invalid and void
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iv) An Order setting aside the said Request for Levy.
The nature of the application is outlined in the “Background”. Counsel for the First Defendant chose not to file any affidavits in response.
The Claimant, Akber Giga, instituted proceedings in England against the First Defendant as a tour operator and the Second Defendant as the owner of the hotel known as Barbados Beach Club where he stayed. In those proceedings the Claimant contended that whilst he was a guest at the said hotel, he sustained personal injury when he slipped on the wet floor outside his hotel room.
In the said proceedings, the First Defendant brought a claim against the Second Defendant as a co-Defendant seeking an indemnity in respect of the claim brought by the Claimant pursuant to Part 20 of the CPR of the United Kingdom (UK), which is equivalent to Part 18 of the Barbados CPR.
On July 5, 2013 the District Judge Alderson entered a judgment in the sum of £60,578.00 being the equivalent of BDS $180,522.44 together with interest at the rate of £13.28 per diem from June 18, 2013 until payment, in favour of the First Defendant and against the Second Defendant in respect of the Part 20 Application aforementioned.
By an Application filed on June 12, 2014 the First Defendant sought permission to register in the High Court of Barbados, the judgment previously mentioned pursuant to Section 3 of the Foreign and Commonwealth (Reciprocal Enforcement) Act Cap 201. On filing this application, the First Defendant did not amend the application to accurately reflect the equivalent rule in this jurisdiction, which is Part 18 instead Part 20 of the U.K. CPR which was cited.
By an Order made on October 21, 2014, the Court granted leave to the First Defendant to register the judgment locally in favour against the Second Defendant in the sum of $185,756.37 with interest at $40.72 per diem from June 18, 2013 until payment.
On December 27, 2014, Felix Broome, Director of the Second Defendant was personally served a certified copy of the Order made on October 21, 2014 by Dr. The Honourable Madam Justice Sonia Richards, Judge of the High Court.
On June 21, 2016, the First Defendant registered the aforementioned judgment in the name of the Claimant (Aber Giga) by filing in the Registry a memorandum pursuant to Section 2 of the Registration of Judgment Act Cap 210 (ROJ). On July 15, 2016 the Second Defendant/ Judgment Debtor was duly notified of the judgment registered against it.
On October 20, 2016 and November 9, 2017, the First Defendant's counsel filed request for issuance of Writs of Execution (FI FA) along with Affidavits in support of the Applications to Enforce Judgment, but no permission was granted due to errors within the applications. On June 26, 2020, the First Defendant filed an amended request for issue of Writ of Execution (FI FA) and permission was granted on July 21, 2020.
By a letter dated November 12, 2020, the Attorney-at-law for the Second Defendant wrote to the Chief Marshal and advised that the request for levy was defective because in the memorandum counsel for the First Defendant said that the judgement was in favour of the Claimant, Aber Giga.
Consequently, on November 16, 2020, the First Defendant's counsel amended the aforementioned memorandum. Counsel unilaterally changed the name of the person in whose favour the Judgment was entered from the Claimant, Akber Giga to the First Defendant, Virgin Holidays Limited.
On the November 23, 2020 Marshals executed the levy on the property of the Second Defendant. The Second Defendant filed a Certificate of Urgency on the aforementioned date and an amended application on the November 25, 2020.
Interim injunction was granted on December 3, 2020.
This Court in its research via email dated August 24 th, 2021 shared with the parties Part 72 in the CPR along with a list of cases below for their consideration and submissions:
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• Ablack v Ablack CV 1019 of 2007
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• Beckles et al v Wood BB 1957 CA 3
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• Bourne and Bourne v Field No. 1798 of 2015
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• Chilton v Surrey County Council et al [1999] CPLR 525
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• Cropper v Smith (1884) 28 Ch.D. 148
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• Dawn Chance v James Chance Civil Claim No. 91 Of 2009
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• First Caribbean International Bank (Barbados) Limited v Praise and Worship Tabernacle Incorporated Claim No. SLUHCV2009/0498
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• Hannigan v. Hannigan and Others [2000] All ER (D) 693
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• Hewitt v Spiers and Pond Ltd (1896) 13 TLR 64
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• Morrison Knudsen International Inc. v Consultant Ltd and Another (2003) 66 WIR 179
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• Flickinger v Preble JM 2005 SC 10
First Defendant's Counsel submitted that a mistake injudicial matters occurs in the practice of law but are always subject to correction once the other side will not suffer any prejudice as a result of it being corrected.
Counsel further admitted that the memorandum did not follow the order exactly. However, the deviation from the order by entering the Claimant instead of the First Defendant as the judgment creditor was only minor. The First Defendant contended that despite the initial error the important aspects of the memorandum remained unchanged. He also argued that the judgment was registered within the time prescribed, and the Second Defendant was given notice of its registration. Therefore, it was clear who was the judgment debtor. A minor error in the memorandum would not change these facts and merely entering the wrong name of the judgment creditor, does not result in the memorandum being void. This is an error which can be remedied by the Court. The memorandum can be amended, provided it is amended; within time and there is no prejudice to the other party. The First Defendant's counsel submitted that the Second Defendant would suffer no prejudice because it was aware via the order, to whom it was indebted to and the amount owed.
Counsel strongly contended that the order of the Court was clear about the parties and monies owed and therefore the Second Defendant had no excuse not to pay or to claim it was unaware to whom the monies were owed.
The First Defendant also submitted that there is no legislation which requires notice to be given to the judgment debtor when there is a registration or an amendment of a memorandum. The only requirement is that when a judgment is entered, notice of that judgment must be given to the judgment debtor, which was done in this case. The First Defendant's counsel contended that in none of the four affidavits submitted by the Second Defendant, was there mention that the Second Defendant had no notice of the judgment or its registration.
The Second Defendant filed an Amended Application on November 25, 2020, where he submitted the following:
The Second Defendant submitted that this issue is a matter of fact more than law because the First Defendant was granted leave to register a judgment in these proceeding by an Order of the Court made on October 21, 2014, which granted it leave to register the judgment in Barbados against the Second Defendant and not against the Claimant, Akber Giga. The Claimant being named as the Judgment Creditor on the memorandum resulted in the memorandum being void. Counsel strongly submitted that the registration should be set aside because the First Defendant did not comply with the terms of the order which were clear.
Counsel admitted that on the facts the incorrect name on the memorandum appeared to be an error, but it did not give the First Defendant the right to maintain the memorandum. Once the memorandum was set aside any request for levy based on that memorandum would also have to be set aside.
The Second Defendant's counsel submitted that once a document is void it cannot be saved by an amendment as a result, the original memorandum is incapable of being amended because it is void. The case of CRL Ltd v Stoute BB 2009 CA 3 was cited in support of the supposition.
It was submitted that the purported amendment was bad on three grounds and should be set aside. Firstly, no notice was given to the Second Defendant by the First Defendant of the amendment. Secondly, the Second Defendant was not given the opportunity to be heard in respect of the amendment which tends to prejudice it. Finally, it was incapable of being amended because the previous memorandum was defective and void but even if it was valid it cannot be enforced because the limitation period had already passed.
The Second Defendant affirms that there has been no request to levy in respect of the amended registration of judgment filed on November 16, 2020, the only request for levy was filed on June 26, 2020. The First Defendant has made no application for permission to amend or remove from the register the previous registration of judgment, so that the record may reflect that...
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