The Caribbean American Tourist Corporation (Saint Lucia) Ltd
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 18 May 1968 |
| Neutral Citation | LC 1968 HC 12 |
| Date | 18 May 1968 |
| Court | High Court (Saint Lucia) |
| Docket Number | No. 92 of 1965 |
West Indies Associated States Supreme Court. (High Court)
Bishop, J.
No. 92 of 1965
Bernard St. John, Kenneth Foster for the plaintiff.
Tajmool Hosien, Q.C., Attorney General for the defendant
Practice and procedure - Declaration — Amendment
Facts: The plaintiff sought leave to amend a declaration. Some of the amendments sought were opposed by the defendant. On the ground that they sought were different in concept and formulated on a different basis from the others
Held: Art. 34 of the Civil Code of Procedure permits the granting of an amendment “upon such terms as justice requires”. The amendments sought would be allowed.
In this application, the plaintiff seeks leave to amend a declaration filed on 16 th July 1965 and particulars filed on 27 th August 1966. Not all of the amendments sought have been opposed and at this stage therefore leave is granted to amend the declaration in the respects in which it has not been opposed. That is to say, that paragraphs 3 and 4 of the declaration may be amended as requested in the application and indicated in the amended declaration filed on 11 th November 1967.
With regard to the other paragraphs, the submissions of counsel for the parties have been noted and it is unnecessary to repeat them in full. Briefly however, counsel for the plaintiff urged that there was no alteration or gross interference with the, original cause of action, and that generally the amendments requested sought (a) to clarify and crystallize issues already raised, by using clearer language and reciting the facts in chronological order, and (b) to supply additional facts so as to avoid any requests for particulars; further, where conclusions were invited, the amendments thereto were for the sake of clarification by the use of different language.
On the question of special damages counsel for the plaintiff contended that the amendments were simply a question for computation on an annual basis in reference to the global amounts covering the periods of 73 years and 60 years mentioned in the original declaration and also the addition of some new items.
In so far as the relief claimed in the declaration is concerned, on behalf of the plaintiff, Mr. Foster submitted and I quote him, “that the claim set out in the amended declaration when looked at along with page 3 of the original declaration, is the same claim as the original expressed differently and sets out what the plaintiff states as his rights; paragraph 6 is new.”
Counsel for the defendant in his reply referred to the history of the pleadings and analyzed the original and amended declarations. He contended that the nature of the claim in the original declaration was inconsistent with that in the, amended declaration. In the former it was an allegation of disturbance without legal authority for reasons set out in paragraph 7, and the; particulars which were sought by the defendant were particulars of the allegation that the defendant had wrongfully disturbed the plaintiff's possessory rights and other legal interests under the lease there was no claim – directly or otherwise – for repossession. Indeed such a claim was abandoned because the basis of the original declaration was rescission of the lease. Counsel submitted that if it was intended to seek repossession then it would have been done in specific terms in the body of the claim, but that this declaration was formulated on the basis that the lease is rescinded and is a claim for damages only. He referred to the quantification of damages and urged that this was done on the basis that the plaintiff had “gone out of possession for ever, and so damages for the full period remaining – 73 years and 60 years – were requested… The disturbance which is the only claim apart from slander of title is treated as extending over the entire period of the lease and the claim is formulated on that basis”.
Counsel urged that the amendments sought were different in concept, and formulated on a different basis. The amended declaration showed air inconsistent concept with that of the original in that it sought to incorporate a claim for possession on the basis of the continued subsistence of the lease, and though the action remained possessory in character it nevertheless introduced a new cause of action because a declaration of a right is a new cause of action. In the words of counsel:
“in consequence of a new claim the damages claimed for disturbance have been reformulated on an annual and continuing basis, the intention being that it shall cease to flow when possession is resumed. The claim includes for the first time damages for breach of express stipulation in the lease and introduce new causes of action for slander and breach of quiet enjoyment.”
Counsel for the defendant also submitted the legal principles which he contended should govern an application for amendment, of a declaration, viz: that although the jurisdiction to grant an amendment is derived from Article 34 of the Code of Civil Procedure of St. Lucia, this Article must not be construed as empowering the court to grant any amendment whatsoever or of whatever character; and, that when an amendment is granted it relates back to the date of the writ and therefore where any amendment introduces a new cause of action or seeks new relief or to recover damages not claimed within the period of prescription, then it will not, be allowed after the period of prescription has expired. In other words, that an amendment should not be granted the effect of which would be to override the period of limitation particularly because of the law of this territory on this matter is mandatory; and, to grant an amendment at any time whatever could deprive the defendant of the benefit of prescription.
In support of his submission, counsel cited the case Dion et Uxor v. Gosselin reported in Vol. 62 of the Quebec Reports Cour de Bane du Roi at p.149, and also the case Marshall v. London Public Transport Board [1936] 3 All E.R. at p.83, and Batting v. London Passenger Transport Board [1941] 1 All E.R. 228. There is no doubt that Article 34...
To continue reading
Request your trial