Signia Financial Group Inc. v Gibbs et Al
| Jurisdiction | Barbados |
| Judge | Alleyne, j. |
| Judgment Date | 22 February 2013 |
| Neutral Citation | BB 2013 HC 35 |
| Docket Number | 1147 of 2008 |
| Court | High Court (Barbados) |
| Date | 22 February 2013 |
High Court
Alleyne, J.
1147 of 2008
Ms. Anita Rampaul-Mohammed for the plaintiff.
Civil practice and procedure - Pleadings — Validity of writ — Whether court could permit application made after writ had expired.
By a summons filed on 15 November 2011 (“the 2011 summons”), the plaintiff seeks the following orders:
- That the Writ in this action be renewed against the first defendant from today's date. 2. Service of a copy of this Order and copy of the Summons dated the 11th day of July 2008 in this action by inserting an advertisement of such Order and Summons in one Friday issue of the Daily Nation newspaper of Barbados, shall be good and sufficient service of the said Summons and that service be deemed to have been effected on the day of the publication of the advertisement.
The application is made pursuant to Order 6, rule 7(2) of the Rules of the Supreme Court, 1982 (“the RSC”). RSC Order 6, rule 7(1) provides that a writ is valid in the first instance for 12 months beginning with the date of its issue. Order 6, rule 7(2) reads as follows:
Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day, if any, as the Court may allow.
The writ to which the 2011 summons refers was filed on 11 July 2008. By that document, the plaintiff claims against the defendants the sum of $24,852.29; interests on the said sum; the further sum of $6,287.02 as contractual legal fees; and costs.
The defendants' address is shown on the writ as Forde's Road, Clapham, St. Michael. However, the plaintiff was unable to serve them at that address and on 15 April 2010, Woodstock-Riley, J. (Ag.) made an Order extending the validity of the writ against them from 11 July 2009 (“the 2009 Order”).
The 2009 Order was made pursuant to a summons filed by the plaintiff on 23 June 2009 (the 2009 summons). That summons was supported by the affidavit of Mr. Tennyson Vaughn, Court Process Server (“Mr. Vaughn CPS”) in which he deposed to his efforts between 11 and 25 July 2008 to find the defendants.
The 2011 summons is supported by three affidavits. These were sworn by Mr. Vaughn CPS, Mr. Tennyson C. Vaughn, Attorney-at-Law and Mr. Charles Springer, respectively. Mr. Vaughn CPS deposed once more to his attempts at service up to 25 July 2008.
Mr. Springer deposed that he served the writ on the second defendant on 17 May 2010. His evidence is that she informed him that the first defendant no longer resided in Barbados but had migrated to Canada. His further evidence is that the Nation newspaper is circulated locally and internationally and that he believes that, if published in a Friday issue of that newspaper, a notice of the writ would come to the first defendant's attention.
Mr. Tennyson Vaughn, Attorney-at-Law, deposed to certain events that occurred with respect to an application, by the plaintiff, for a default judgment against the second defendant. I detail that evidence at paragraph [21] below.
The Supreme Court ( Civil Procedure) Rules, 2008 (“the CPR”) came into force on 1 October 2008. However, the RSC remain pertinent to these proceedings. It is convenient at this stage to reproduce RSC Order 2, rules 1(1) and (2) and RSC Order 3, rule 5(1) and (2) to which I make reference below. The former provides:
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(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these or any other rules of court, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
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(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments, if any, to be made and to make such order if any, dealing with the proceedings generally as it thinks fit.
Order 3, rules 5(1) and (2) read:
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(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules, or by any judgment, order or direction, to do any act in any proceedings.
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(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
Counsel for the plaintiff, Ms. Anita Rampaul-Mohammed, asked the court to exercise its discretion in favour of the renewal of the writ. She referred me to paragraph 6/8/4 of the Supreme Court Practice 1995 Volume 1 which sets out a summary of the principles relating to the renewal of writs. Of those underscored by Counsel, I found the following to be most relevant:
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(1) It is the duty of the plaintiff to serve the Writ promptly. He should not dally for the period of its validity; if he does so and gets into difficulties as a result he will get scant sympathy.
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(2) Accordingly there must always be good reason for the grant of an extension. This is so even if the application is made during the validity of the Writ and before the expiry of the limitation period; the later the application is made, the better must be the reason.
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(3) It is not possible to define or circumscribe what is good reason. Whether a reason is good or bad depends on the circumstances of the case. Normally the showing of good reason for failure to serve the writ in its original period of validity will be a necessary step to establishing good reason for the grant of the extension ( Waddon v. Whitecroft-Scovill Ltd. [1988] 1 W.L.R. 309; …).
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(4) …
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(5) …
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(6) The application for renewal should ordinarily be made before the writ has expired. The court has power to permit a later application but it must be made within the appropriate period of the first expiry. The laxer practice of allowing two or more successive renewals to bring the writ up to date is no longer available since Chappell v. Cooper [1980] 1 W.L.R. 958 … and see Singh (Joginger) v. Duport Harper Foundries Ltd. [1994] 1 W.L.R 769 …
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(7) …
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(8) …
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(9) The decision whether an extension to the validity of a writ should be allowed or disallowed is a matter for the discretion of the court dealing with the application. Jones v. Jones [1970] 2 Q.B. 576; … shows that in exercising the discretion the judge is entitled to have regard to the balance of hardship. The exercise of the discretion, however, follows upon the showing of good reason by the applicant. Hardship to the applicant if the extension is disallowed is not a substitute for good reason (see Waddon …
The principle expressed at (6) above constitutes one good reason why the plaintiff's application cannot succeed. While the Court has power to permit an application made after a writ has expired, the application must be made within the twelve month period of the expiry.
This principle has had a somewhat chequered history. It has its genesis in Chappell v. Cooper; sub nom. Player v. Bruguiere [1980] 1 W.L.R. 958. In that case, Mrs. Player sought to have the validity of a writ extended some four and a half years after the date of issue. The limitation period with respect to the action had passed by the date of the application to renew. Lord Roskill opined, at page 966 letter A, that the principle results from ‘the true construction’ of Order 6, rule 8(2) of the Rules of the Supreme Court, 1965, United Kingdom, after which RSC Order 6, rule 7(2) is patterned. Making specific reference to the facts of the case, he explained the position this way, at page 966 letters C and D:
Let me give the dates. The writ in the action of Player v. Bruguiere was issued on December 6, 1974. The 12 months therefore expired on December 5, 1975, and the second period of 12 months, which would be the maximum for which a timeous extension might be allowed, would have run out on December 5, 1976. But the affidavit in support of this application was not sworn until June...
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