Walcott v Serieux

• Jurisdiction: St Lucia
• Judge: Peterkin, J.A.
• Judgment Date: 20 October 1975
• Neutral Citation: LC 1975 CA 3
• Date: 20 October 1975
• Court: Court of Appeal (Saint Lucia)
• Docket Number: Civil Appeal No. 2 of 1975

Court of Appeal

Davis, C.J., St. Bernard and Peterkin, JJ.

Civil Appeal No. 2 of 1975

Walcott

and

Serieux

Appearances:

K. Monplaisir for appellant.

H. Giraudy for respondent.

Practice and procedure - Parties to action — Application for substitution of plaintiff

Facts: In an action for damages for negligence, the court refused an application to amend the writ to substitute a company as the plaintiff. On appeal, it was argued that the learned trial judge was wrong in law in refusing the amendment

Held: Appeal dismissed. The amendment sought was not permissible either by the law of England or St. Lucia; because the three year period of limitation had expired and the judge had no discretion in the matter to have allowed an amendment would have meant that the substituted plaintiff would have been instituting proceedings out of time.

Peterkin, J.A.

1 The brief facts which have given rise to this appeal are as follows:–

2 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.

3 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.

4 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.

5 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 ruled as 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 cost.(

6 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.

7 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 cases of Rodriguez v. Parker [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 satisfies (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.

8 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.

9 The facts of that case are as follows:

“On October 30th, 1961, the plaintiff was injured by a motor van driven...