Freeport Container Port Ltd v Jermaine Campbell

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett
• Judgment Date: 30 March 2021
• Neutral Citation: BS 2021 CA 46
• Date: 30 March 2021
• Docket Number: SCCivApp. No. 130 of 2020
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Evans, JA

The Honourable Madam Justice Bethell, JA

SCCivApp. No. 130 of 2020

Between

Freeport Container Port Limited

Appellant

and

Jermaine Campbell

Respondent

APPEARANCES:

Ms. Metta MacMillan-Hughes with Mr. McFalloughn Bowleg, Counsel for the Appellant

Mr. Wayne Munroe, QC with Mr. K. Brian Hanna, Counsel for the Respondent

Boostrom v. Bach 622 N.E.2d 175 (Ind. 1994) considered

Butters and another v Hayes [2021] EWCA Civ 252 applied

David Cornish v DPP SCCrApp. No. 174 of 2018 mentioned

Dixon and another v Radley House Partnership (A Firm) and others [2016] EWHC 2511 (TCC) applied

Hortenberry v. Palmer 992 N.E.2d 921 (Ind. App. 2013) distinguished

Shaquille Culmer v DPP SCCrApp. No. 141 of 2019 mentioned

Wells v Wood and another [2016] Lexis Citation 676; 2016 B78YM721 applied

Civil appeal — Application to strike out an action — Issuance of a Writ — Writ sealed by officer of the Registry — Payment of court fees — Limitation period — Rules of the Supreme Court Order 1, rule 8, Order 6, rule 6(3), Order 18, rule 19, Order 60, rule 2 — Section 9 of the Limitation Act

By way of generally indorsed Writ of Summons the respondent brought an action against the appellant in the court below, as a result of an accident which occurred on the appellant's premises on 6 May 2012. The Writ is stamped 6 May 2015 and the receipt is dated 7 May 2015. A Statement of Claim alleging personal injury as a result of the appellant's negligence was later filed. By way of Defence the appellant pleaded section 9 of the Limitation Act and filed a Summons to strike out the respondent's action pursuant to the Rules of the Supreme Court Order 18, rule 19 and/or the inherent jurisdiction of the Court. The learned judge below dismissed the appellant's strike out Summons. The appellant now appeals that decision.

Held: appeal dismissed. The appellant to pay the respondent's costs of the appeal, to be taxed if not agreed.

The appellant's case is that the filing of the respondent's originating process did not occur until 7 May 2015 when the filing fees were paid, therefore the action is statute barred.

Order 6, rule 6(3) provides that “Issue of a writ takes place upon its being sealed by an officer of the Registry.” Once a Writ has been sealed by an officer of the Registry the Writ is effectively issued whether or not the fees are actually paid, and the limitation period stops running. In the present case the Writ was sealed by an officer of the Registry on 6 May 2015. The payment of filing fees is not a prerequisite for the effectiveness of a Writ which has been sealed by an officer of the Registry.

Judgment delivered by the Honourable Sir Michael Barnett, P:

1 . This is an appeal by Freeport Container Port Ltd. against a decision by Bowe-Darville, J. whereby she refused to strike out an action under Order 18, rule 19 on the ground that the action was barred by the provisions of section 9 of the Limitation Act.

2 . On 6 May 2012 the respondent was injured in an accident on the appellant's premises. He brought an action against the appellant claiming damages for personal injuries which he alleged was caused by negligence of the appellant.

3 . The action was commenced by a Writ of Summons which was generally indorsed. The Writ is dated 6 May 2015. That is to say the stamp on the Writ bears that date and the date written on the Writ is 6 May 2015.

4 . The Record of Appeal does not reflect when the appellant entered an appearance. A Statement of Claim was filed on 8 January 2019. The appellant filed a Defence on 23 April 2019 and in paragraph 4 of that Defence pleaded:

• “4. The Defendant avers that pursuant to s. 9 of the Limitation Act, 1995 the Plaintiff's action against it is barred by reason of the fact that the alleged cause or causes of action for damages for negligence and/or breach of duty whereby the Plaintiff claims inter alia damages in respect of personal injuries did not arise within three years before this action was commenced.”

5 . On 25 April 2019 the appellant issued the strike out Summons. It was in the following terms:

“LET ALL PARTIES concerned attend before Deputy Registrar Carol Misiewicz a Registrar of the Supreme Court, in Chambers at Ansbacher House, Bank Lane, Nassau, The Bahamas on the day of A.D., 2019 at o'clock in the noon or so soon thereafter as Counsel can be heard on an application by the Defendant herein pursuant to R.S.C. Order 18, rule 19 and/or the inherent jurisdiction of the Court for an Order striking out the Writ of Summons on the basis that it is scandalous, frivolous or vexatious, and/or that it is otherwise and abuse of the process of the Court by reason that the Plaintiff's action is statute barred pursuant to Section 9 of the Limitation Act 1995, Chapter 83 AND for an Order that the action herein be dismissed and that the Plaintiff do pay the Defendant's costs of and incidental to this application and this action.”

6 . That Summons was supported by an Affidavit of Philisea Bethel filed on the same date as the Summons. That Affidavit was in the following terms:

• “1. That I am an Associate at the law firm of Lennox Paton. Lennox Paton acts on behalf of Freeport Container Port Limited (“FCP”), the Defendant herein and I am duly authorized to make this Affidavit on its behalf.

• 2. This Affidavit is made in support of the Defendant's application for an Order that the Specially Indorsed Writ of Summons filed herein on the 6th May, 2015 be struck out pursuant to Order 18, Rule 19 of the Rules of the Supreme Court and/or the inherent Jurisdiction of the Court on the basis that the Plaintiff is barred from bringing this action by virtue of Section 9 of the Limitation Act, 1995.

• 3. Unless otherwise stated the facts and matters deposed hereto are within my knowledge and are true. Where the matters deposed hereto are not within my knowledge they are derived from the sources which I identify and are true to the best of my information and belief.

• 4. The Plaintiff's claim is for damages inter alia in respect of personal injuries suffered and for losses, expenses and inconvenience sustained as a result of an accident which occurred between the evening of 5 ^th May, 2012 and the morning of 6 ^th May, 2012. Now produced and shown to me marked Exhibit “PB. 1” is a copy of the said Writ which was issued on 6 ^th May, 2015.

• 5. On the 8 ^th January, 2019 a Statement of Claim was filed and served on 25 ^th March, 2019. In the circumstances a Defence was filed on the 23 ^rd April, 2019 wherein at paragraph 4 it was pleaded by the Defendant that “pursuant to s.9 of the Limitation Act, 1995 the Plaintiff's action against it is barred by reason of the fact that the alleged cause or causes of action for damages for negligence and/or breach of duty whereby the Plaintiff claims inter alia damages in respect of personal injuries did not arise within three years before this action commenced”. A copy of the Statement of Claim and the Defence is now produced and shown to me marked Exhibit “PB. 2” and Exhibit “PB.3” respectively.

• 6. In the circumstances the Defendant humbly prays that the Writ of Summons be struck out and the action dismissed and that the Defendant be awarded its costs of and incidental to the action and this application.”

7 . At first blush, it would appear that the appellant was claiming that the accident occurred on 5 May 2012. It was therefore barred by section 9 of the Limitation Act because it should have been brought by 5 May 2015. That Affidavit acknowledged that the Writ was “filed herein on the 6th May, 2015”.

8 . It was only after the supplemental Affidavit of Philisea Bethel, filed on 4 July 2019, did it become apparent what was the basis of the appellant's claim, that the action was statute barred. In that Affidavit Ms. Bethel said:

• “1. That I am an Associate at the law firm of Lennox Paton. Lennox Paton acts on behalf of Freeport Container Port Limited (“FCP”), the Defendant herein and I am duly authorized to make this Affidavit on its behalf.

• 2. This Supplemental Affidavit is made in support of the Defendant's application for an Order that the Specially Indorsed Writ of Summons which was purportedly filed herein on the 6 ^th May, 2015 be struck out pursuant to Order 18, Rule 19 of the Rules of the Supreme Court and/or the inherent jurisdiction of the Court on the basis that the Plaintiff is barred from bringing this action by virtue of Section 9 of the Limitation Act, 1995.

• 3. Unless otherwise stated the facts and matters deposed hereto are within my knowledge and are true. Where the matters deposed hereto are not within my knowledge they are derived from the sources which I identify and are true to the best of my information and belief.

• 4. The Plaintiff's claim is for damages inter alia in respect of personal injuries suffered and for losses, expenses and inconvenience sustained as a result of an accident which occurred between the evening of 5 ^th May, 2012 and the morning of 6 May, 2012. Now produced and shown to me marked Exhibit “PB. 1” is a copy of the said Writ which was purportedly issued on 6 ^th May, 2015.

• 5. I am informed by Ms. MacMillan-Hughes and do verily believe that she attended at the Registry of the Supreme Court Finance Department to undertake an inspection of the filing receipts for May, 2015 in order to locate a copy of the receipt that had been issued upon payment of the filing fee upon issuance and filing of the Writ of Summons in the present action No 563 of 2015.

• 6. I am further informed by Ms. MacMillan-Hughes and do verily believe that during the course of that attendance she met with Mrs. Moncur at the Registry of the Supreme Court Finance Department who assigned Ms. Hall of the aforesaid department to assist in locating the subject receipt book for the...