Anselm Caines v Everton Powell
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Gill, M. |
| Judgment Date | 26 September 2022 |
| Neutral Citation | KN 2022 HC 21 |
| Docket Number | CLAIM NO: NEVHCV2020/0125 |
| Court | High Court (Saint Kitts and Nevis) |
| Year | 2022 |
CLAIM NO: NEVHCV2020/0125
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Mr. Perry Joseph for the Claimant
Mrs. Sherry-Ann Liburd-Charles for the Defendant
This is the court's ruling on the defendant's application to set aside service of the claim on him, which was done by publication in two consecutive issues of a local newspaper although he lives at an address outside of the jurisdiction.
Prior to the instant claim, the claimant, Anselm Caines, filed a claim in defamation (“the first claim”) 1 against the defendant on the same grounds and seeking the same relief as in this claim. On an ex parte application, the claimant obtained an order of the court granting
permission to serve the defendant personally at an address in Maryland, USA. Attempts to serve the claimant were unsuccessful and the first claim lapsedOn 2 nd December 2020, the claimant refiled the claim (“the present claim”). The claimant was unable to ascertain an address for the defendant, whether locally or in the USA or at all. Therefore, on 16 th February 2021, the claimant applied to the court pursuant to Rule 7.8A of the Civil Procedure Rules 2000 as amended ( CPR 2000) for permission to serve the defendant by publication in a local newspaper.
The application was granted by order of the court on 22 nd March 2021 (“the publication order”). Service was effected by publication in The St. Kitts and Nevis Observer on 21 st May and 28 th May 2021.
The defendant filed an acknowledgment of service on 12 th July 2021 admitting service of the claim on 16 th June 2021.
On 11 th October 2021, the defendant filed the instant application with supporting affidavit for several orders, among other things, disputing the jurisdiction of the court to hear the claim ( CPR 9.7 and 9.7A), to set aside service of the claim ( CPR 7.7), and to discharge the publication order. The defendant has confined his submissions to these issues.
CPR 7.7 makes provision for the court to set aside service of a claim served under CPR 7.3. CPR 7.7(2) sets out that the court may set aside service if–
The rule does not limit the court's power to make an order under CPR 9.7 to dispute the court's jurisdiction. 2
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a) service out of the jurisdiction is not permitted by the rules;
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b) the claimant does not have a good cause of action; or
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c) the case is not a proper one for the court's jurisdiction.
The defendant contends that the manner in which the claim was served is not permitted by the rules. He alleges that the claimant's application filed on 16 th February 2021 was a clear
attempt to circumvent the mandatory requirement for permission to serve outside of the jurisdiction in circumstances where the defendant is ordinarily resident outside of the jurisdiction. The crux of the application is that service of the claim form and statement of claim by advertisement in a local newspaper is defective/bad and must be set aside as the defendant is domiciled/ordinarily resident outside of the jurisdiction and the claimant was not granted any permission from the court for service of the claim out of the jurisdictionCPR 7.3 authorises the court to permit service out of the jurisdiction in specified proceedings. The defendant's position is that the claimant did not seek, and was not granted, the court's permission to serve the present claim on the defendant out of the jurisdiction. Further, the claimant made no attempt to serve this claim personally on the defendant as is required by the rules. Therefore, service of the claim must be set aside.
The claimant submits that there is palpable evidence before the court that leave was granted to serve the defendant out of the jurisdiction. He asserts that the application for the publication order pursuant to CPR 7.8A was deliberate given the circumstances of this case. In the first claim, the claimant sought and was granted permission to serve the defendant outside of the jurisdiction when personal service in Nevis was ineffective and the whereabouts of the defendant became unknown. Under the rubric “Mode of service – alternative procedure”, CPR 7.8A(1) reads:
Where service under Rule 7.8 is impracticable, the claimant may apply for an order under this Rule that the claim form be served by a method specified by the court.
CPR 7.8 provides the modes of service of a claim outside of the jurisdiction. CPR 7.8A provides for alternative methods of service outside of the jurisdiction.
The claimant avers that while the present claim is a newly filed claim, the defendant is the same and the substance of the claim is the same as in the first claim which expired. Although the order of 22 nd March 2021 is a bare order without reasons or substantial recitals, by the grant of the publication order, the learned judge accepted that if the claimant could not effect personal service on the defendant outside of the jurisdiction (as was attempted in the first claim), and because his whereabouts became unknown, then service by local publication was acceptable to bring the contents of this claim to the defendant's attention.
The claimant posits that it would have been futile, impractical and a waste of court resources to attempt personal service again when there was clear and uncontroverted evidence that either the defendant did not live at the address and/or was evading service rendering any such further attempt futile. Such an attempt, the claimant says, would be contrary to the spirit and intention of CPR 2000 and the overriding objective to dispense with cases justly, which includes the proper use of court time and resources to bring matters to trial.
In order to succeed in obtaining permission to serve by the alternative procedure, the claimant had to convince the court that a mode of service under CPR 7.8 was impracticable. In so doing, the claimant provided evidence of the futile attempts to serve the defendant in the first claim for which the court granted permission for service out of the jurisdiction under CPR 7.8.
The claimant points out that CPR 7.8A does not present an exhaustive list, or any specific list, of alternative modes of service out of the jurisdiction. He cites the following cases to show that a method of service within the jurisdiction may be used for alternative service out of the jurisdiction.
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i. Gray v Hurley. 3 The claimant resided in England. He obtained an order to serve the defendant who resided in New Zealand by WhatsApp.
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ii. General Medical Council v Benjamin. 4 Email service was authorised by the court to serve a claim on the defendant outside of the jurisdiction.
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iii. CMOC Sales & Marketing Limited v Persons Unknown and 30 Others. 5 The court utilised Facebook Messenger, WhatsApp and a virtual Data Room to serve defendants whose whereabouts were unknown.
With no specified alternative methods, the claimant had to satisfy the court that publication in a local newspaper was an appropriate alternative method of service out of the jurisdiction under CPR 7.8A. He was required to provide a proper evidential basis for the court to exercise its discretion to allow service by publication in this jurisdiction as a means of effecting service on the defendant outside of the jurisdiction. By his evidence, the claimant sought to convince the learned judge that given the failed attempts to serve the defendant under CPR 7.8 in the first claim, publication was the only viable method of serving the defendant and bringing the contents of the present claim to his attention. He furnished the court with copies of the reports and affidavits of process servers who made numerous attempts to serve the defendant at the very Maryland, USA address which he subsequently confirmed in his acknowledgment of service to be his correct address. He made his case by stating his belief that publication in a local newspaper would bring the contents of the present claim to the attention of the defendant because most or all newspapers also have an online presence, and the local print and online publication would allow the defendant to see the contents of the claim, and that third parties could also bring the claim to his attention. He averred that the defendant was a well-known social media blogger and personality who through this medium had a following both locally in Nevis and elsewhere.
In his application under CPR 7.8A, in my view, the claimant provided cogent evidence as to why service under CPR 7.8 was impracticable. The publication order gave the claimant permission to serve the defendant by an alternative method to those specified in CPR 7.8, that method being service by publication in a local newspaper. I am satisfied that this order gave the claimant permission to serve the defendant out of the jurisdiction by the alternative method of local publication. For the removal of doubt, paragraph 2 of the publication order stipulated that an acknowledgement of service and defence be filed on behalf of the defendant in 42 days and 56 days respectively from the date of the second consecutive publication. This is in keeping with CPR 7.5(2) which provides that an order granting permission to serve a claim outside of the jurisdiction must state periods for acknowledgement of service and defence (outside of the general rules). 6
To my mind, this was an order in respect of the mode of service out of the jurisdiction without an application for, or consideration of, the granting of permission to serve out under CPR 7.3. Before an order under CPR 7.8 or 7.8A can be made, the court must first give permission for service out after being satisfied that the case...
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