Shell Antilles and Guianas Ltd Plaintiff v B & D Construction Ltd Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | Farara J |
| Judgment Date | 09 December 1997 |
| Judgment citation (vLex) | [1997] ECSC J1209-3 |
| Date | 09 December 1997 |
| Court | High Court (Saint Lucia) |
| Docket Number | SUIT NO: 421 OF 1990 |
IN THE HIGH COURT OF JUSTICE
(CIVIL)
A.D. 1997
SUIT NO: 421 OF 1990
(In Chambers).
This Suit is of some vintage. The matter for my determination is the Defendant's application by Summons filed 8th November, 1996 for an order staying execution, by writ of fieri facias, of the judgment in this matter pronounced by Matthew J (as he then was) on 2nd December, 1993 in favour of the Plaintiff for -
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(1) the sum of $380,457.47 with interest thereon at the rate of 6 percent per annum from 16th December, 1990 until payment;
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(2) costs to the Plaintiff to be agreed or otherwise taxed; and
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(3) that the Defendant's counterclaim is withdrawn.
It is the third limb of the judgment which is of some significance in the present application.
The grounds on which the Defendant based its application, as stated in the Summons, is that the Plaintiff is liable to the Defendant for damages in the sum of $2,138,212.50 for the worthless and useless supply of bitumen as per the Defendant's claim in Suit No. 901/1994 which claim is a valid counterclaim and or set-off of the Plaintiffs claim herein for payment of the said bitumen.
The application is supported by the affidavit of Charles Daher, managing director of the Defendant company filed 14th January, 1997. The Plaintiff filed on 29th April, 1997 the opposing affidavit of Esther Greene-Ernest, the Solicitor having conduct of this matter on behalf of the Plaintiff.
By Writ of Summons issued 19th December, 1990 indorsed with Statement of Claim, the Plaintiff commenced this action claiming the sum of $380,457.27 the balance as of 30th December, 1990 of the price of diesel, bitumen and other petroleum products sold and delivered to the Defendant between July 1989 and June 1990, interest and costs.
A Defence and Counterclaim was filed by the Defendant on 31st May, 1990. By way of defence to the claim, the Defendant pleaded that the bitumen sold to it by the Plaintiff was not reasonably or at all fit for the purpose of being used for road construction and was not of merchantable quality. I pause here to observe that the defence did not address the sale and purchase of diesel or other petroleum products except bitumen.
In its Counterclaim, the Defendant repeated the same allegations in the defence regarding the bitumen purchased from the Plaintiff, and claimed special damages in the aggregate sum of $2,138,212.50 being the pleaded cost of repair works which the Defendant alleged it had to carry-out to roads it had previously constructed using poor quality or useless bitumen purchased from the Plaintiff.
The defence to counterclaim filed 1st October, 1991 denied the allegations of unfitness and lack of merchantable quality of the bitumen sold to the Defendant and it was pleaded that each shipment of bitumen delivered to the Defendant had been previously tested and certified of proper quality by an independent inspector.
The issues were thereby joined for trial both on the claim and counterclaim and a request for hearing filed 14th February, 1992.
On 2nd December, 1993 the date fixed for the trial of this action, judgment was pronounced by Matthew J in favour of the Plaintiff on its claim with costs and the Defendant's counterclaim withdrawn. The judgment was filed and perfected on 9th December, 1993.
I do not have before me nor have I been provided with the notes of the proceedings before Matthew J on 2nd December, 1993. However, Learned Counsel for the Applicant in his submissions stated that, at the said proceedings, the Defendant's expert witnesses from overseas were not present and, as such, the Defendant was not in a position to mount its defence or substantiate its counterclaim as both were based on the same allegations and evidence. As a result, the Defendant being in danger of having its counterclaim dismissed by the court, took a tactical decision and applied to withdraw the counterclaim. Counsel emphasized that no evidence was given or taken by the court on 2nd December, 1997 and, apparently, the Defendant being unable to defend the action, judgment was pronounced for the Plaintiff on its claim and the counterclaim withdrawn.
Order 21 r. 3 of the Rules of the Supreme Court 1970 provides for the discontinuance of a claim or counterclaim and for the withdrawal of any particular claim with the leave of the court. Rule 4 dealing with the effect of such discontinuance or withdrawal, specifically provides -
"the fact that a party has discontinued an action or counterclaim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action".
A defendant may therefore commence a new action for the same cause of action or subject matter as in its counterclaim, to which the withdrawal would be no defence. However, discontinuance of an action or withdrawal of a action or claim may, in certain circumstances, be a bar to a further action or claim.Supreme Court Practice 1997 Vol. 1 para. 21/2–5/12 page 366.
InThe Kronprins (1887) 12 App. Cases 256 Lord Herschell at page 262 distinguished between discontinuance and dismissal thus -
"…not merely does the fact of the plaintiff discontinuing not operate in any way as a bar, but the judge's order to discontinue -unless it were made a condition of the discontinuance that no other action should be brought — would not operate as a bar".
No order barring the commencement of fresh proceedings by the Defendant for the same cause of action pleaded in the withdrawn counterclaim was made at the proceedings on 2nd December, 1993. And so, strictly speaking, the Defendant was free to commence a new action for the same claim or causes of action.
However, as I see it, the difficulty or hurdle which the Defendant may be faced with is twofold. Firstly, as the allegations in the defence and counterclaim were identical, and the Plaintiff having obtained judgment on its claim, which judgment is final and binding on the parties having not been appealed and there being no application to set it aside, the Plaintiff;s cause of action for the balance of the purchase price of petroleum products including bitumen was finally determined by a court of unlimited jurisdiction and that issue, including the defences thereto, may well be res judicata or have been merged in the judgment as expressed in theLatin maxim "transit in rem judicatam".
The Indian Endurance (1993) 1 AER 998 .
Halstead v. Attorney General et al Civil Appeal No. 10 of 1993 (Antigua and Barbuda) and Privy Council Appeal No. 53 of 1996.
Secondly, the claims relating to losses suffered by the Defendant as a result of the purchase of the bitumen in 1990 may well be statute barred, since more than 3 years elapsed before the Defendant filed, as plaintiff, Suit 901 of 1994.
To complete the record of proceedings in Suit 421/1990 the Plaintiff, some 16 months after receiving judgment applied for an order for examination of the Defendant/Judgment Debtor as to its means of satisfying the judgment. On 5th April, 1995 an order was made by Matthew J for examination of an officer of this Defendant company on 17th may, 1995.
There have been several adjournments of that hearing, the last being 27th September, 1996. Apparently, no examination has taken place and on 8th November, 1996 the Defendant filed the application for stay of execution. Both applications were fixed for hearing before me on 1st December, 1997. Only the Defendant's application was in fact dealt with on that date.
On 29th November, 1994 almost one year after the judgment in suit 421/1990 and the withdrawal of the counterclaim therein, the Defendant, in the latter action commenced a fresh action as plaintiff, in Suit 901/1994 based upon the identical causes of action and for the same special damages as...
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