Osborne v The Motor Vessel “Witshoal” II

• Jurisdiction: St Lucia
• Judge: Peterkin J.A.,Davis C.J.
• Judgment Date: 01 January 1976
• Neutral Citation: LC 1976 CA 3
• Docket Number: Civil Appeal No. 2/1976
• Court: Court of Appeal (Saint Lucia)
• Date: 01 January 1976

Court of Appeal

Maurice, C.J.

St. Bernard, J.A.

Peterkin, J.A.

Civil Appeal No. 2/1976

Osborne

and

The Motor Vessel “Witshoal” II

K. Monplaisir for the appellant.

D. McNamara Q.C., T. Cozier with him for the respondent.

Practice and procedure - Writ — Amendment — Whether writ should be set aside because the endorsement did not comply with the Admiralty Rules, Cap. 1, rule 5 — Amendment granted.

Peterkin J.A.

1 This is an appeal against the judgment of Renwick J. allowing a motion by the defendant/respondent for the setting aside of a writ filed by the plaintiff/ appellant in the Admiralty Division of the High Court. The endorsement of claim an the writ was as follows:

“The plaintiff's claim is for compensation for loss and/or damage to the sinking of the said ship M.V. Lady Sorcha.”

2 The writ was set aside on the ground that the endorsement did not comply with Rule 5 of the Admiralty Rules, Cap. 1 Volume 7 of the Laws of St. Lucia. At the hearing of the motion to set aside the writ the plaintiff /appellant sought an amendment to the endorsement but was denied one by the trial judge on the ground that the amendment sought was defective in that it still did not state the amount claimed nor where the M.V. Lady Sorcha was sunk, and also that it would amount to a new claim.

3 The grounds of appeal are:

• (1) The defendant's motion to set aside the writ was not properly before the court and ought not to have been entertained.

• (2) The learned judge erred in not giving a decision on the above point raised by counsel.

• (3) That the learned judge was wrong in law in declaring the writ invalid.

• (4) That the judgment of the learned judge was wrong and ought to be set aside.

4 Grounds 1 and 2 were argued together. Counsel for appellant conceded that the defendant/respondent could apply by motion without having entered an appearance, and conceded also that the motion could have been signed by the solicitor. He submitted, however, that the solicitor could only swear to the affidavit in support of the motion when he is on the record as appearing for the defendant, and that accordingly there was no affidavit before the court, and no motion on which the court could have adjudicated. He referred the court to Rule 82 and to the definition of “party” in the Rules, and submitted that as the respondent did not enter an appearance, his solicitor had no locus standi. I do not agree. I am of the...