Blue Planet Group Ltd v William Downie

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Winder J
• Judgment Date: 27 July 2020
• Docket Number: 2016/CLE/gen/01355
• Date: 27 July 2020

IN THE SUPREME COURT

COMMON LAW & EQUITY DIVISION

Before

Hon. Mr. Justice Ian R. Winder

2016/CLE/gen/01355

Between

Blue Planet Group Limited

First Plaintiff

And

Yellow Elder Company (bahamas) Ltd

Second Plaintiff

and

William Downie

Defendant

And Between

William Downie

Plaintiff to Counterclaim

and

Blue Planet Group Limited

Yellow Elder (Bahamas) Ltd

Defendants to Counterclaim

Appearances:

Tara Archer-Glasgow with Audley Hanna Jr for the Plaintiff

Metta MacMillan-Hughes with Chizelle Cargill and McFalloughn Bowleg for the Defendant

Winder J

This is the defendant's (Downie) application that the addition of Yellow Elder Company (Bahamas) Limited (Yellow Elder) as a plaintiff in the action not relate back, but only take effect from the date of the amendment of the Writ.

1 A brief chronology of the filings in this action are as follows:

16 Sep 16 Writ of Summons by Blue Planet seeking claims for breach of contract and for damages arising out of a contract of employment.

19 Dec 16 Notice of Appearance by Downie.

29 Dec 16 Statement of Claim filed by Blue Planet.

30 Jan 17 Summons by Downie to strike out Blue Planet and alternatively the substitution of Yellow Elder as the Plaintiff

14 Mar 17 Defence and Counterclaim filed on behalf of Downie suing Blue Planet and Yellow Elder.

5 May 17 Amended Defence and Counterclaim filed on behalf of Downie removing Blue Planet as a Defendant to Counterclaim.

16 May 17 Summons to strike out the Amended Defence and Counterclaim.

15 Dec 17 Summons by Downie to amend Amended Defence and Counterclaim

12 Mar 18 Summons by Blue Planet and Yellow Elder (Bahamas) Limited seeking to join Yellow Elder and amend the Statement of Claim.

25 Feb 19 Hearing on the outstanding applications (including the application to join Yellow Elder) concluded.

18 Apr 19 Written Ruling granting, inter alia, leave to add Yellow Elder as a plaintiff to the action.

02 May 19 Amended Statement of Claim, which includes Yellow Elder as a plaintiff to the action is filed.

17 Feb 20 Summons by Downie applying for a special order that the amendment of the claim to include Yellow Elder ought not to relate back.

4 Mar 20 Application to amend Writ of Summons

2 As indicated in the above chronology, I granted leave, following a contested hearing, to join Yellow Elder as a plaintiff in the action. Paragraphs 7–10 of that written ruling provided as follows:-

7. Order 20 rule 5 of the Rules of the Supreme Court, provides:

5-(1) Subject to Order 15, rules 6, 7 and 8, and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

8. The object of the amendment of pleadings is to enable the parties to alter their documents so as to ensure that litigation between them is not tied down to the original facts, but on the basis of the true state of the facts, or the true relief or remedy. The Court of Appeal in the case of Bahamas Telecommunication Company Limited v Island Bell Limited SCCivApp No. 188 of 2014 provides a useful discussion on the law relative to amendments. Crane-Scott JA, delivering the decision of the Court stated:

[22.] The Notes in the White Book (Supreme Court Practice 1993) which explain the operation of Order 20 rule 5 suggest that the aforementioned rule ought to be read together with rule 8, which states: “8. - (1) for the purpose of determining the real controversy between the parties to any proceedings or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings and either of its own motion or on the application of any party to the 9 proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. (2)…”

[23.] Bowen L.J in Cropper v Smith (1883) 26 Ch D. 700 at 710- 711 stated the general principles for granting leave to amend. He said: “It is a well-established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters of controversy, and I do not regard such amendment as a matter of favour or grace…It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.”

[34.] As previously noted, such amendments should only be allowed if they can be done without injustice. In determining whether there is injustice, the court must consider the lateness of the application; the sufficiency of the reasons for the late application; whether a fair trial and the determination of the issues would be compromised by the granting of leave; and whether costs would compensate.

9. These are applications to amend and ordinarily, unless issues of limitation arise, they are not ordinarily contested and the issue simply one of costs associated with consequential amendments. But everything in this matter is always hotly contested. Downie alleges, inter alia, that the claims being raised do not disclose reasonable causes of action citing the rule in Foss v Harbottle. He argues that Yellow Elder cannot have any cause of action with respect to money it is not alleged it paid...