1. Modeste Joseph 2. Marilyn Joseph Claimants v Peter Felicien Defendant

• Jurisdiction: Saint Kitts and Nevis
• Judge: Thomas J. (Ag),BELLE J
• Judgment Date: 17 April 2012
• Judgment citation (vLex): [2012] ECSC J0417-2
• Court: High Court (Saint Kitts and Nevis)
• Docket Number: CLAIM NO. SLUHCV 2010/0976,CLAIM NO. Skbhcv2011/0374
• Date: 17 April 2012

[2012] ECSC J0417-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. Skbhcv2011/0374

Between:

St. Kitts Nevis Anguilla Trading And Development Company Limited

Claimant/Respondent

and

James Buchanan

Defendant/applicant

Appearances:

Mr. Garth Wilkin for the Claimant/Respondent

Mr. Adrian Scantlebury for the Defendant/Applicant

DECISION

1 Thomas J. (Ag) Before the Court is an Application filed by the Defendant/Applicant, Mr. James Buchanan seeking an order that:

1. The Fixed Date Claim filed by the Claimant/Respondent on the 13 ^th December, 2011 be dismissed.

2. Costs to be paid by the Claimant/Respondent.

2 The grounds of the Application are that:

"1. Pursuant to Part 26.1 (2) (i) of the Civil Procedure Rules 2000 this Honourable Court has jurisdiction to dismiss a claim after a decision on a preliminary issue.

2. The cause of action alleged by the Claimant/Respondent is in breach of an agreement dated 8 ^th July 1999. Based on a reading of paragraphs 3a and 5 of the Statement of Claim the cause of action would have arisen by January, 2010 being the period beginning one month from the last month, November, 1999 in which the Defendant/Applicant took items on credit from the Claimant/Respondent, ceteris paribus time (six (6) years) for the purposes of section 4 of the Limitation Act Cap. 5.09 would have begun to run from about January, 2010. However, section 22 (4) ibid provides that there is a fresh accrual of action on acknowledgment or part payment of debt. To this end, the Applicant/Defendant acknowledged the debt owed to the Claimant/Respondent by his letter of April 10, 2001 which is referred to at paragraph 7 of the Statement of Claim. It was also in 2001 that money was paid towards settling the debt and the last payment was made in 2001. Accordingly, time would have started to run from 2002 which would bring the end of the six year limitation period to 2007. This would render the Fixed Date Claim filed on 13 ^th December, 2011 statute barred. The Respondent denies that he or anyone on his behalf made any payment as alleged by paragraph 8 of the Statement of Claim."

3 Based on an Order of the Court, extensive submissions were filed by learned counsel on both sides. These submissions coupled with an oral hearing in Chambers gave rise to 3 issues for determination:

1. The extent of the Court's jurisdiction under Rule 26.1 (2) (i) of CPR 2000.

2. Whether the Applicant's Affidavits with exhibits fail to comply with Rules 30.4 (4) (c) and 30.2 (d) of CPR 2000.

3. Whether the Claimant's action is statute barred.

ISSUE NO. 1

The extent of the Court's jurisdiction under Rule 26.1 (2) (i) of CPR 2000.

Rule 26.1 (2) (i) of CPR 2000 provides that "Except where these rules provide otherwise, the Court may (i) dismiss or give judgment on a claim after a decision on a preliminary issue."

ISSUE NO. 1

Submissions

4 Learned Counsel for the Applicant sought to rely on a number of cases which concerned striking out a defence as disclosing no reasonable ground for defending the claim 1. These cases involved the Court's powers under Rule 26.3 (1) (b) of CPR. Learned counsel went on to submit that while there is a serious factual issue, there is the other question as to whether the Claimant's remedy by lapse of time. The further submission is that the issue being statute barred is preliminary in nature, and although there have been cases where the Courts have dealt with the issue on a preliminary basis, sometimes at a hearing of an application at this stage or at trial the issue is still preliminary in nature. This brings the case within the powers of this Court pursuant to CPR Part 26.1 (2) (i)

5 On the other hand, learned counsel for the Respondent submits that having regard to Rules 8.1 (5) (a) and 15.3 (c) of CPR read concurrently, the application grounded in Rule 26.1 (2) (i) is not a sustainable application under the CPR 2000 when one considers Rule 15.3 (c). Another submission by learned counsel is that the Defendant's application is a cloaked Summary Judgment Application which is not contemplated by the procedures of this Court. For learned counsel the name of things does not matter only what they are.

Analysis and conclusion

6 There can be little doubt as to the import of Rule 26.1 (2) (i) of CPR as it gives the High Court a clear power to dismiss or give judgment on a claim on a preliminary issue.

7 The Court does not accept that that application as a cloaked application for a summary judgment since for one thing the procedure for summary judgment are entirely different. And in any event summary judgment is not available in relation to a fixed date claim by virtue of Rule 15.3 (c).

8 Having regard to the overriding objective of the Rules to deal with cases justly. And dealing justly includes saving expense and ensuring a case is dealt with expeditiously. As such powers of the Court under Part 26 readily fall into context.

9 The application by the Defendant is really about jurisdictional law and the preliminary issue is whether the Court has jurisdiction to entertain the Claimant's case in light of the provisions of the Limitation Act2. The matter could not be clearer, and in like manner unless the Rules provide otherwise, the powers of the Court dismiss or give judgment after a decision on a preliminary issue is unlimited.

ISSUE NO. 2

Whether the Applicant's Affidavits with Exhibits fail to comply with Rules 30.4 (4) (b) and (c) and 30.2 (d) of CPR 2000.

ISSUE NO. 2

10 In essence Rules 30.4 (4) (b) and (c) of CPR provide that

"Each exhibit or bundle of exhibits must be —

(b) accurately identified by an endorsement on the exhibit or on a certificate attached to it signed by the person before whom the affidavit is sworn or affirmed; and

(c) marked in accordance with rule 30.2 (d)".

Rule 30.2 (d) states that "Every affidavit must —

(d) be marked on the top right hand corner of the affidavit (and of the back sheet) with

i. the name of the party on whose behalf it is filed;

ii. the initials and surname of the deponent;

iii. (where the deponent swears more than one affidavit in any proceedings) the number of the affidavit in relation to the deponent;

iv. the identifying reference of each exhibit referred to in the affidavit;

v. the date when sworn;

and

vi. the date when filed …"

Submissions

11 Learned counsel for the Applicant in addressing the contention by learned counsel for the Claimant regarding the affidavits filed by the Applicant submits the following:

"13. The second legal challenge mounted at the hearing of the application by counsel for the Claimant is that the affidavits filed by the Defendant on 17 ^th January, 2012 and the 7 ^th February, 2012 failed to comply with CPR in that

a. No certificate was attached to any of the exhibits in breach of Part 30.4 (4) (b), and

b. Neither the affidavits nor the exhibits (Part 30.4 (4) (c) were marked in accordance with Part 30.2 (d).

14. I respectfully disagree with counsel's submission under "a" above. It is clear from a proper reading of Part 30.4 (4) (b) that two requirements for identification of exhibits are established in the alternative Part 30.1 (4) (b) provides.

'Each exhibit … must be accurately identified by an endorsement on the exhibit or on a certificate attached to it signed by the person whom the affidavit is sworn or affirmed.'

15. Thus, although it is true that the Defendant's exhibits were not accompanied by certificates it is also true that each one of the exhibits was 'accurately identified by an endorsement on the exhibit.' These endorsements were 'JB 1' to 'JB 6' and provided this … Court with sufficient assistance to allow your Lordship to accurately identify each exhibit and, by extension, match each to the relevant part of the evidence deposed to in the Defendant's affidavits. I therefore, respectfully, submit that the Defendant's exhibits are in compliance with Part 30.4 (4) (b).

16. Regarding the second limb of the argument made by counsel for the Claimant ('b') above it is true that neither the affidavits nor the exhibits of the Defendant comply with Part 30.2. Despite this I respectfully submit that the Affidavits can nevertheless be admitted in evidence and be relied on by your Lordship when deliberating on the substance of the Defendant's application".

12 Learned counsel goes on to submit that the applicant's application should not be affected on account of a matter of form and that consideration of the substance should be preferred. Reliance is placed on the case of Intrust Trustees (Nevis) Limited v Naomi Darren3. There are other submissions but they will be mentioned in the stage of analysis.

13 Learned counsel for the Claimant/Respondent basic submission is that the Applicant has tendered evidence to ground the application which is not properly before the Court.

The submissions continue in this way:

"18. Rules of CPR 2000 are to be followed; even more so when an applicant party is applying for Draconian Orders such as striking out of a claim in its entirety, as is the Defendant in this matter.

19. Whereas a breach of Rule 30.4 (4) (c) may be aesthetic in nature ( de minimis non curat lex) going to form rather than substance, it is submitted that the absence of the endorsement on exhibits signed by the person before whom the affidavit is sworn (a breach of Rule 30.4 (4) (b) is a significant breach going to the proper identification of the exhibits and therefore the substance of their admissibility.

20. It is therefore submitted that all of the exhibits of receipts purportedly tendered by the Defendant and relied up to a large extent in the Defendant's application are not properly before this Honourable Court and therefore should be expunged from this Honourable Court's consideration of the Defendant's application."

Analysis and conclusion

14 As noted from the submissions, the...