The Attorney General v James St. Prix

• Jurisdiction: St Lucia
• Judge: Ellis JA
• Judgment Date: 28 February 2025
• Judgment citation (vLex): [2025] ECSC J0228-1
• Court: Court of Appeal (Saint Lucia)
• Year: 2025
• Docket Number: SLUHCVAP2022/0014

Between:

The Attorney General

Appellant

and

James St. Prix

Respondent

Before:

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

The Hon. Mde. Vicki Ann Ellis Justice of Appeal

The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

SLUHCVAP2022/0014

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Interlocutory appeal — Appeal against the learned master's refusal to strike out claim — Whether the learned master erred in the exercise of his discretion — Interpretation and application of Article 28 of the Code of Civil Procedure of Saint Lucia (“CCP”) — Failure to serve Article 28 notice (giving one month's notice) on public officer before claim is issued — Whether the learned master erred in finding that an Article 28 Notice need only be served on the public officer if such public officer is named as a defendant to the claim — Whether the learned master erred in finding that the claim for vicarious liability against the Attorney General would survive where the Article 28 Notice is not served on the public officer who is not named as a defendant to the claim — Sections 4(4) and 13(2) of the Crown Proceedings Act (“CPA”) — Whether the learned master failed to have regard to the legal effect of section 13(2) and section 4(4) of the Crown Proceedings Act of Saint Lucia

In March of 2022, the respondent filed a claim for damages against the appellant pursuant to section 13(2) of the Crown Proceedings Act (“CPA”) alleging that while in police custody, a police officer/servant/agent of the Crown (“the public officer”) compelled him to unlawfully and wrongfully transfer ownership of his motor vehicle to the second named defendant in the court below, thereby causing him damage and loss (“the claim”). As a result, the respondent claimed the sum of $47,850.00 in addition to a sum for aggravated and exemplary damages, interests and costs.

The public officer was not joined as a defendant to the claim in the court below and no relief was sought against her. The respondent served the appellant with a document entitled “Notice of Intended Prosecution” (“Article 28 Notice”). However, the respondent did not serve the public officer with an Article 28 Notice as required under the the Code of Civil Procedure (“CCP”). Due to this failure, the appellant invoked section 4(4) of the CPA and filed an application to strike out the claim pursuant to Article 28 of the CCP (“the application”).

In a judgment dated 5 ^th July 2022, the learned master identified that the central issue for determination was whether service of a notice of intended action on the police officer (the principal tortfeasor) is necessary (when she was not joined as a party to the claim) and, if so, whether service of the notice on the Attorney General (rather than the police officer), is sufficient for the purpose of Article 28 of the CCP. The master ultimately dismissed the application to strike out the claim.

Being dissatisfied with the learned master's decision, the appellant filed a notice of appeal disputing several of the master's findings on a multiplicity of grounds.

Held: dismissing the appeal, affirming the order of the learned master, ordering the appellant to pay the respondent's costs to be assessed by a judge of the high court if not agreed within 21 days of this judgment that;

• 1. Article 28 lays down the procedure where suits are brought against a public officer, and it clearly imposes a bar against the institution of any judgment against a public officer or other person fulfilling any public duty or function. The object of the notice required under Article 28 of the CCP is to inform the public officer, or other person fulfilling any public duty or function (the actual tortfeasor) before-hand of the nature of the action contemplated and to give him an opportunity to consider his legal position. It clearly affords a privilege to a public officer against whom legal proceedings are actually contemplated. Where the officer is not intended to be joined as defendant, Article 28 is not engaged. Where a claimant has taken the strategic decision to not sue the public officer or other person fulfilling any public duty or function for damages, there is no need to afford him or her notice of legal proceedings in which he or she will not be joined as defendant and where no legal remedies are being pursued against him or her.

  Article 28 of the Code of Civil Procedure, Cap 22.08 of the Revised Laws of Saint Lucia applied; Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) applied; Bihari Chowdhary & Anr v State of Bihar and Ors 1984 AIR 1043 considered; Bhagchand Dagadusha Gujarati and Ors. v Secretary of State for India (1927) 43 TLR 617 considered.

• 2. The wording in Article 28 of the CCP is clear and it must therefore be given its plain and ordinary meaning. Given the legislative context and the wording of Article 28, it is clear that the drafters did not intend to impose a similar pre-action protocol in regard to the Crown or the State because at the time the CCP would have been promulgated, the legal landscape in regard to liability of the Crown would have been quite different, that is, the Crown was immune from liability.

  Article 28 of the Code of Civil Procedure, Cap 22.08 of the Revised Laws of Saint Lucia applied; Conseil des Ports Nationaux v Langelier [1969] SCR 60 applied.

• 3. A claimant who sues the Crown for a tort committed by a public officer does not need to bring proceedings against the officer personally because the CPA makes clear that the Crown is subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject in respect of torts committed by its servants or agents. Initially, one needed to identify an individual Crown servant who had committed a tort in the course of their duties or employment. However, this is no longer the case. Recognising that it may be difficult or impossible to positively prove which one of several servants was tortious (what may be described as “collective failures”), the court have nevertheless found employers vicariously liable. While primary liability of the primary tortfeasor/servant must be made out, it is therefore not always possible or necessary to join the primary tortfeasor as a defendant in order to prove his primary liability or in order to establish vicarious liability of the Crown. It therefore follows that it will not always be possible or indeed necessary to serve notice of intended action on the public officer who is the primary tortfeasor.

  Hogg, Monahan, and Wright- “ Liability of the Crown” (Carswell 4 ^th edn, 2011) applied; The Crown Proceedings Act, Cap 2.05 of the Revised Laws of Saint Lucia applied; The Queen v Levy Brothers Company Limited and the Western Assurance Company [1961] SCR 189 applied.

• 4. Procedurally, section 13 of the CPA makes clear that in a suit by or against the Crown, the authority to be named as claimant or defendant is the Attorney General. Section 13 does not prohibit or prevent suit being instituted personally against a public officer who is an alleged tortfeasor. Rather it simply codifies the position that the Crown may be vicariously liable for his actions.

  Section 13 of the Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied; Basil Williams v The Attorney General of Guyana et al [2023] CCJ 3 (AJ) GY applied; Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) applied; Bertha Compton v Dr. Nathaniel et al SLUHCVAP2004/0012 (delivered 15th February 2005, unreported) applied; General Aviation Services Ltd et al v The Director General of the Eastern Caribbean Civil Aviation Authority et al SLUHCVAP2012/006 (delivered 11th September, unreported) applied.

• 5. Section 4(4) of the CPA essentially states that any legal provision which limits the liability of a government department or Crown officer in relation to a tort will also apply to the Crown when being sued under this section. This means that the Crown is treated as if it were that specific department or officer, in terms of liability limitations for that particular tort. The scheme of Article 28 is procedural in its wording and intent. The framers of Article 28 intended to encourage parties to consider their legal position and make amends or settle if so advised. The object is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. This characterization is not consistent with an enactment which negatives or limits the amount of the liability of an officer of the Crown in respect of any delict or quasi-delict which he or she may have committed. Article 28 protections are therefore not captured by section 4(4) of the CPA.

  Article 28 of the Code of Civil Procedure, Cap 22.08 of the Revised Laws of Saint Lucia applied; Section 4 (4) of the Crown Proceedings Act Cap 2.05 of the Revised Laws of Saint Lucia applied;

  Matthews v Ministry of Defence [2007] 3 All ER 513 applied; Vallayan Chettier v Government of the Province of Madras AIR 1947 PC 197 considered. Bryan James et al v The Attorney General SLUHCVAP2013/0023, SLUHCVAP2013/0024, SLUHCVAP2014/0021 (delivered 10th February 2016, unreported) considered. Section 4(4) of the Crown Proceedings Act, Cap 2.05 of the Revised Laws of Saint Lucia applied.

Appearances:

Ms. Rochelle John-Charles with Ms. Antonia Charlemagne for the Appellant

Ms. Maureen John-Xavier for the Respondent

Introduction

Ellis JA

1 This is an interlocutory appeal against the judgment of the learned master in which he dismissed an application filed by the Attorney General (“the appellant”) to strike out the respondent's claim on the basis that the respondent failed to serve the notice pursuant to Article 28 (“Article 28...