Edmund Estephane v McDowell Broadcasting Corporation (MBC) Ltd

• Jurisdiction: St Lucia
• Judge: Price-Findlay JA
• Judgment Date: 23 August 2023
• Judgment citation (vLex): [2023] ECSC J0823-3
• Docket Number: SLUHCVAP2022/0002
• Court: Court of Appeal (Saint Lucia)
• Year: 2023

Between:

Edmund Estephane

Appellant

and

McDowell Broadcasting Corporation (MBC) Limited

Respondent

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mde. Margaret Price-Findlay Justice of Appeal

The Hon. Mde. Esco Henry Justice of Appeal [Ag.]

SLUHCVAP2022/0002

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Interlocutory appeal — Service — Rule 5.7 of the Civil Procedure Rules — Service of originating documents on a company — Whether service of the claim form and other supporting documents on the receptionist of the respondent at its usual place of business c onstituted proper service — Rule 26.9 of the Civil Procedure Rules — Whether the court has the jurisdiction under CPR 26.9 to cure procedural irregularities in service — Prescription — Whether the appellant's purported service on the respondent was sufficient to interrupt prescription — Interpretation Act — Whether the learned master erred in considering section 23 of the Interpretation Act on the matter of who may be served as the provision is only relevant where an Act is silent on the manner of service

On 28 ^th June 2021, the appellant filed a claim against the respondent for damages for defamation for statements made by a broadcaster during a broadcast of a weekly series entitled “Can I help you” which was aired and published on the respondent's television station on 2 ^nd July 2020. The appellant contended that service was effected on 1 ^st July 2021 by leaving filed copies of the claim form, statement of claim, prescribed form, authorization code and a thumb drive containing the video recording of the broadcast, with a receptionist at the respondent's place of business at Barnard Hill, Castries Saint Lucia. The respondent filed an acknowledgement of service on 12 ^th July 2021 contending that it was served on 3 ^rd July 2021. The respondent gave its address as Barnard Hill, Castries and further indicated that it intended to dispute the claim.

On 19 ^th July 2021, the respondent filed an application pursuant to rule 9.7 of the Civil Procedure Rules 2000 (“the CPR”) to strike out the claim on the basis that the court lacked jurisdiction to try the claim due to prescription. One of the grounds upon which the application was based was the fact that the claim was served on a receptionist of the respondent at its place of business and not at the registered office located on the John Compton highway. It was further contended that given the failure to serve the document in the manner provided for by the relevant rule, service was improper. Since the time had already elapsed after the filing of the claim, it was asserted that the claim had become prescribed and therefore could not be heard by the court. The learned master agreed and accordingly struck out the appellant's claim having decided that it had been prescribed.

Being dissatisfied with the decision of the learned master, the appellant filed a notice of appeal citing two grounds of appeal which fell to be decided by this Court: (i) Whether the learned master erred by finding that service of the claim form and supporting documents on the receptionist at the respondent's place of business could not constitute proper service in circumstances where the respondent filed an acknowledgement of service and where the master also found that service on the respondent's registered office was an impossibility due to defects in its address at the Registry of Companies; and (ii) Whether the learned master erred in law and misdirected himself when he considered section 23 of the Interpretation Act.

Held: allowing the appeal and making the orders set out at paragraph 58 of the judgment, that:

• 1. A court must carefully examine CPR 5.7 and the Companies Act with respect to the issue of service and not nitpick in order to find technicalities which put litigants out of the doors of court. For true justice to be done, matters must be allowed to come to court for final determination. Courts are interested in hearing substantive matters and unless a procedural breach proves fatal to a claim the court will use its powers under the CPR in order to have matters heard. In this case, the appellant conducted a search at the Registry of Companies and found the respondent's registered address to be ‘John Compton Highway, Castries, St. Lucia’. This address was ambiguous and without a more specific address, service of the claim on the registered office of the respondent proved difficult, if not impossible. The appellant therefore served the receptionist of the respondent at its usual place of business. Nonetheless, it is clear that the respondent, received the claim form and the accompanying documents as it filed an acknowledgement of service within the time prescribed by the rules of court. Even though the service in this matter might have been considered procedurally irregular, it satisfied the purposes of service as it engaged the attention of the respondent who actively participated in the proceedings thereafter.

  Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203 applied; Lapierre v Andrew (1983) 45 A.R. 220 (QB) applied; Barbara Angela Reid v Melroc Investments Limited t/a Access Cambio [2019] JMSC Civ 244 applied; Rule 5.7 of the Civil Procedure Rules 2000 considered.

• 2. CPR 26.9 is a provision of the rules which can be used beneficially where there has been no prejudicial effect to the other party. This Court will not allow style to triumph over substance in circumstances where no prejudice is visited on the other party. In this matter, there was no prejudice to the respondent as a result of what was, in effect, a procedural error. The respondent was not deprived of any knowledge of the fact that proceedings had been commenced against it or what the nature of the claim made against it was. In fact, they entered an acknowledgement of service. Furthermore, CPR 5.7 imposes no sanction for non-compliance with the procedures for service. The learned master therefore erred in finding that the provisions of CPR 5.7 prevented him from invoking the court's inherent powers under CPR 26.9 to correct what amounted to an irregularity in service. The learned master ought to have exercised the discretionary powers granted to the court by virtue of CPR 26.9 and deem that service in the matter was proper and that service took place before time became prescribed.

  Steele v Mooney and others [2005] 1 WLR 2819 applied; Texan Management Limited & Others v Pacific Electric Wire & Cable Company Limited [2009] UKPC 46 applied; Bupa Insurance Limited (trading as Bupa Global) v Roger Hunter [2017] JMCA Civ 3 applied; Bank of Baroda, GCC Operations and Others v Nawany Marine Shipping FZE and Others [2016] EWHC 3089 (Comm) applied; Rule 26.9 of the Civil Procedure Rules 2000 applied.

• 3. The Interpretation Act is a statute of general application in the interpretation of other statutes. It provides that when an Act is silent as to how service is to be effected, such service may be effected by one of the various means set out in the Interpretation Act. As both the CPR and the Companies Act set out very clearly the parties on whom documents ought to be served on behalf of a company, there ought to have been no recourse to the Interpretation Act in these particular circumstances and the learned master erred in so doing.

  Section 23 of the Interpretation Act Cap. 1.06, Revised Laws of Saint Lucia 2020 considered; Part 5 of the Civil Procedure Rules 2000 considered.

Appearances:

Ms. Candace Fletcher and Mr. Mark Maragh for the Appellant

Mr. Horace Fraser for the Respondent

Price-Findlay JA

1 This appeal arises from a decision of the learned master whereby he struck out the appellant's claim having decided that it had been prescribed.

2 The respondent, a limited liability company, made an application to the court below seeking a declaration that the court had no jurisdiction to hear the claim based on prescription. Alternatively, the respondent sought an order that the claim be struck out as an abuse of process.

3 The learned master found that there had been no proper service and accordingly, there had been no proper judicial demand before the time was prescribed. Therefore, both the right and remedy of the appellant as against the respondent were extinguished. As a result, the court had no jurisdiction to make any order regarding remedying any of the defects in service at this stage of the trial. The learned master, as a result, struck out the appellant's claim and awarded costs to the respondent. It is against this decision of the master that the appellant has now appealed.

Brief Facts

4 On 28 ^th June 2021, the appellant filed a claim against the respondent for damages for defamation for statements made by a broadcaster during a broadcast of a weekly series entitled “Can I help you” which was aired and published on the respondent's television station on 2 ^nd July 2020.

5 The appellant contended that service was effected by leaving filed copies of the claim form, statement of claim, prescribed form, authorization code and a thumb drive containing the video recording of the “Can I help you” show dated 2 ^nd July 2020 with Ms. Kiana Richard, a receptionist employed with the respondent, at the respondent's place of business at Barnard Hill, Castries St. Lucia on 1 ^st July 2021.

6 The respondent filed an acknowledgement of service in the matter on 12 ^th July 2021. In it, the respondent contended that it was served on 3 ^rd July 2021. The respondent also gave its address on the acknowledgement of service as Barnard Hill, Castries and further indicated that it intended to dispute the claim.

7 On 19 ^th July 2021, a notice of application with an accompanying affidavit was filed by the respondent pursuant to rule 9.7 of the Civil Procedure Rules 2000 (“the CPR”) which sought to have the claim struck out on the basis that the court lacked the requisite...