Norman Walcott Appellant v Moses Serieux Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: PETERKIN. J.A.,CHIEF JUSTICE
• Judgment Date: 20 October 1975
• Judgment citation (vLex): [1975] ECSC J1020-1
• Date: 20 October 1975
• Court: Court of Appeal (Saint Lucia)
• Docket Number: CIVIL APPEAL NO.2 of 1975

[1975] ECSC J1020-1

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO.2 of 1975

Between:

Norman Walcott

Appellant

and

Moses Serieux

Respondent

K. Monplaisir for appellant.

H. Giraudy for respondent.

PETERKIN. J.A.

1 The brief facts which have given rise to this appeal are as follows: On the 25th day of July 1972 the appellant brought an action against the respondent for damage done to his motor van No.401 on the 12th day of March 1972, as a result of the negligent driving of the respondent.

2 The appellant in his statement of claim stated that he was at all material times the owner of the said van and the respondent in his defence admitted that the appellant was the owner of the motor van.

3 Despite the state of the pleadings as mentioned above, the appellant at the trial gave the following evidence:

"I live at La Clery, Castries. I know the defendant. I owned a pick-up registration no.401. I would call it a truck. It belonged to the company of which I am a director. It belonged to Walcott's Construction Co. Ltd. It was so owned by the company in March 1972."

4 At that stage counsel for the appellant submitted that in view of this evidence it was clear that the wrong plaintiff was before the Court and sought leave to amend the writ by substituting Walcott Construction Co. Ltd. as the plaintiff in the action. The learned trial judge heard arguments from both counsel in the case and ruledas follows:

"Court rules that application for substitution of another person as plaintiff cannot be entertained. In the result both action and counterclaim are dismissed. There will be no order as to costs."

5 It is from this Order that the appellant now appeals. The grounds of appeal are as follows:

"1. That the learned judge was wrong in law in holding that no amendment could be allowed to substitute a plaintiff in an action.

2. That the learned judge was wrong in law in refusing to allow an application to amend the writ by substituting the plaintiff for another.

3. That the judgment of the learned judge was wrong and ought to be set aside and a new trial between a substituted plaintiff, viz. "Walcott Construction Limited", and the defendant/respondent ordered."

6 Counsel for the plaintiff/appellant referred the Court to Order 15, Rule 6, and Order 20, Rule 5, of the Rules of the Supreme Court and pointed out that they were identical with the English Rules of the Supreme Court. He then cited the case so ofRodriguez v. Parker (1966) 2 All E.R.349 (1966) 2 All E.R.349, and Sterman v. E.W. & W.J. Moore Ltd. (1970) 1 All E.R.581, and, relying on the former case cited, he then submitted that if the Court were satisfied (1) that the mistake sought to be corrected was a genuine mistake; (2) that the mistake was not misleading nor such as to cause any reasonable doubt as to the identity of the person intended to be sured (3) that it was just to make the amendment; and that the three criteria mentioned in that case could be applied to the facts and circumstances of the instant case, that the Court ought to grant the amendment.

7 He further submitted that the amendment was granted in the Rodriguez case even though it had the effect of extending the validity of the writ.

8 The facts of that case are as follows:

"On October 30, 1961, the plaintiff was injured by a motor van driven by R.S. Parker, the son of its owner, R.J. Parker. On June 11, 1964, a writ was issued on the plaintiff's behalf in which the defendant was mistakenly described as R.J. Parker. The claim was for damages for personal injuries. The writ was served on Jan. 4, 1965. by which time the limitation period had expired. In July, 1965, the defence was delivered; it included a denial that the defendant was driving the van. On Jan. 17, 1966, an order was made under ...