Guy Eardley Joseph v Mcdowall Broadcasting Corporation (MBC) Ltd

• Jurisdiction: St Lucia
• Judge: Price-Findlay JA
• Judgment Date: 22 May 2023
• Neutral Citation: LC 2023 CA 3
• Docket Number: SLUHCVAP2022/0008
• Court: Court of Appeal (Saint Lucia)

Between:

Guy Eardley Joseph

Appellant

and

Mcdowall Broadcasting Corporation (MBC) Limited

Respondent

Before:

The Hon. Mr. Mario Michel Justice of Appeal

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

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

SLUHCVAP2022/0008

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 on the receptionist of the respondent at its usual place of business constituted 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 — Whether the learned master erred in finding that the decision of Barton v Wright Hassall LLP was applicable to the instant case — 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 since the provision is only of relevance where an Act is silent on the manner of service

On 25 ^th August 2020, the appellant filed a claim against the respondent for defamation arising out of statements allegedly aired by the respondent during its nightly news segment on 16 ^th June 2020. The claim and the accompanying documents were served on the receptionist of the respondent at its place of business on 26 ^th August 2020. No acknowledgment of service or defence having been filed, the appellant applied for default judgment on 7 ^th October 2020. On the same date, within hours of the request for default judgment, the respondent filed an acknowledgement of service and thereafter, on 14 ^th October 2020, the respondent filed a defence on the merits of the claim. The request for judgment in default was denied by the registrar and the matter proceeded in accordance with the rules of court. The matter was sent to mediation which was attended by both parties, but was not settled. Further case management took place with the respondent fully engaging in the process both at mediation and at case management.

On 1 ^st July 2021, the respondent made an application pursuant to rule 5.7 of the Civil Procedure Rules 2000 (the “CPR”) and under Part 26 seeking to strike out the appellant's claim or in the alternative, seeking summary judgment. In this application, the respondent raised the issue of prescription and challenged the validity of the service of the claim. The learned master directed both parties to file submissions on the application and after considering the matter on paper, he delivered a written decision on 11 ^th May 2022 in which he found that the claim had not been validly served and he accordingly struck out the appellant's claim on the basis of prescription.

Being dissatisfied with the decision of the learned master, the appellant filed a notice of appeal citing three grounds of appeal, however, four issues fell for determination by this Court: (i) whether the learned master erroneously held that the service of the claim form and supporting documents on the receptionist of the respondent at its place of business could not constitute proper service, and as such, was not an appropriate basis for the exercise of the Court's discretion to correct procedural irregularities pursuant to CPR 26.9; (ii) whether the learned master erred and misdirected himself when he considered and agreed to the applicability of the principle in the decision of Barton v Wright Hassall LLP to the instant matter; (iii) whether the learned master erred in law when he posited that the basis for service on a limited liability company is grounded solely in the Companies Act; and (iv) whether the learned master erred in law and misdirected himself when he considered section 23 of the Interpretation Act on the matter of who may be served, since the said provision is only of relevance where an Act is silent on the manner of service.

Held: allowing the appeal and making the orders set out at paragraph 85, that:

• 1. In ascertaining whether service of process has been validly effected, the court must examine CPR 5.7 and the Companies Act carefully with regard to service of documents, and not nit-pick in order to find technicalities which put litigants out of the doors of court. It is clear that for true justice to be done, the substantive matter must be allowed to come to the court. Courts are interested in hearing substantive matters and unless procedural breaches prove fatal to a claim, the court will use its powers to have matters heard. In this case, the appellant conducted a search at the Corporate Registry 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 place of business. 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; Section 521 of the Companies Act Cap. 13.01, Revised Laws of Saint Lucia 2013 considered; Rule 5.7 of the Civil Procedure Rules 2000 considered.

• 2. Service of documents in civil proceedings is a procedural matter and as such if an error of procedure occurs, the court has the authority under CPR 26.9 to address and correct what may be considered procedural errors. The court has the jurisdiction and the discretion to cure defects and irregularities depending on the circumstances of the particular case, and procedural irregularities are within the discretionary powers of the court to rectify, if the justice of the case requires that it be done to give effect to the overriding objective of the CPR. Service on the receptionist, and not an officer of the respondent, as contemplated by CPR 5.7(c) and section 521 of the Companies Act, did not render service of the claim a nullity. The words of both section 521 and CPR 5.7 are not mandatory. The court is entitled to treat the service as an irregularity especially when bearing in mind the purpose of service, which is to bring the documents to the attention of the respondent. The learned master therefore erred in finding that the provisions of the Companies Act did not allow him to invoke the inherent powers of CPR 26.9 to correct what was in effect an irregularity. Accordingly, he erred in finding that the claim had not been properly served and that the matter was prescribed.

  Barbara Angela Reid v Melroc Investments Ltd T/A Access Cambio [2019] JMSC Civ 244 applied; Bupa Insurance Limited (Trading as Bupa Global) v Roger Hunter [2017] JMCA Civ 3 applied; Singh (Santosh Kumari) v Atombrook Ltd. (trading as Sterling Travel) [1989] 1 All ER 385 applied; Rule 26.9 of the Civil Procedure Rules 2000 applied; Section 521 of the Companies Act Cap. 13.01, Revised Laws of Saint Lucia 2013 considered; Rule 5.7 of the Civil Procedure Rules 2000 considered.

• 3. In Barton v Wright Hassall LLP, the court was being asked whether it ought to exercise its discretion to retrospectively validate service of a claim on the defendants, the appellant having served the claim by an alternate method, via email, without prior confirmation that the respondent's solicitors were willing to accept service by that method. In the instant case, there was a failure to adhere to the procedures set out in CPR 5.7 by the appellant. The appellant took all reasonable steps to locate the registered office of the respondent but was forced to utilize alternative methods of service when this proved impossible. Being unable to locate the registered office of the respondent, the appellant used the next best option, a place with a close connection, i.e, the respondent's place of business. Accordingly, the principles pronounced in Barton have little or no applicability to the issues in the instant case and the learned master erred in relying on them.

  Barton v Wright Hassall LLP [2018] 3 All ER 487 distinguished.

• 4. 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, Laws of Saint Lucia applied; Section 521 of the Companies Act Cap. 13.01, Revised Laws of Saint Lucia 2013 considered; Rule 5.7 of the Civil Procedure Rules 2000 considered.

Appearances:

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

Mr. Horace Fraser holding papers for Mr. Thaddeus Antoine and Mr. Kenroy Denver Justin for the Respondent

Price-Findlay JA

1 This matter comes on for appeal by the appellant from a decision of the learned master.

2 An application to strike out the appellant's claim below on the basis that it was prescribed was brought by the respondent challenging the validity of service on the respondent and raising issues on the life of the claim.

3 The learned master found that there had not been proper service on the respondent, finding that service had not been executed on the company in the manner prescribed, and further that the prescribed time for instituting the claim having expired, the matter was at an end and...