Minette A. Cartwright v Halsbury Chambers

• Jurisdiction: Bahamas
• Judge: Darville Gomez, J
• Judgment Date: 23 October 2023
• Docket Number: 2022/COM/LAB 00017
• Court: Supreme Court (Bahamas)

BETWEEN

Minette A. Cartwright

Claimant

and

Halsbury Chambers

First Defendant

and

W. A. Branville McCartney Trading as Halsbury Chambers

Second Defendant

Before:

The Honourable Madam Justice Camille Darville Gomez

2022/COM/LAB 00017

IN THE SUPREME COURT

Commercial Law Division

Appeal from a Registrar — hearing proceeding on security for costs despite notification by Counsel of their unavailability to appear on the date — security costs ordered against the Claimant — whether fair in the circumstances

Appearances:

Mr. Obie Ferguson, KC and Keod Smith for the Claimant

Mr. Carl Bethel for the First Defendant

RULING

Darville Gomez, J

Introduction and Background

1 The Claimant commenced this action against the First Defendant, her former employer for breach of her contract of employment and sought liquidated damages for wrongful dismissal and unfair dismissal. The specially endorsed Writ of Summons was filed on March 9, 2022 and on its face it bore the address of her attorney, Obie Ferguson & Co., snug Haven, Elizabeth Avenue, P.O. Box N 3300, Nassau, Bahamas.

2 The First Defendant's Counsel contend that despite the Writ containing the address of her attorney that it was not endorsed with her address contrary to the provisions of Order 6 Rule 4(1)(a) of the Rules of the Supreme Court, 1978 (“RSC”).

3 By letter dated March 28, 2022 they drew this to the attention of Counsel for the Claimant and invited him to amend the Writ “to avoid an application being made to the Court”. However, the said letter referred to Order 6 Rule 4(a), RSC.

4 By letter dated March 29, 2022, the Claimant's Counsel replied, advising that there was no Order 6 rule 4(a), but instead there was an Order 5, rule 4(a) and confirmed that “the Writ was endorsed after service and returned to the Civil Registry of the Supreme Court”.

5 Thereafter, the First Defendant's Counsel applied by Ex Parte Summons filed on April 6, 2022 for leave pursuant to Order 12, rule 6 to enter a conditional appearance on the grounds that the Claimant did not comply with the provisions of Order 6 rule 4(a), RSC indorsing her address on the face of the Writ of Summons; it was supported by an Affidavit of Rhchetta Godet also filed on the same date. Further, they sought an Order setting aside the said Writ of Summons.

6 The Deputy Registrar of the Supreme Court granted leave to the First Defendant to enter a conditional appearance on November 11, 2022. However, the Court took notice that the leave granted failed to specify the time within which the application to set aside the writ must be issued.

7 After filing the Summons for leave to enter a conditional appearance on April 6, 2022, the First Defendant filed a Summons on June 13, 2022 and again on November 15, 2022 for an order for security for costs against the Claimant pursuant to Order 23 rule 1(c); it was supported by an Affidavit also filed on the same date.

8 I refer to Order 23 rule 1(c) which provided that the court may if it thinks just order the plaintiff to give security for costs where the plaintiff's address is not stated in the writ or is incorrectly stated. Order 23, rule 2 provided that “the Court shall not require a plaintiff to give security by reason only of paragraph (1)(c) if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive.”

9 On November 25, 2022 the Deputy Registrar ordered that the Claimant pay security for costs to the Defendant in the sum of $30,000 to be paid within 30 days of service of the Order.

10 This order is the subject of this application. I set out the details of the present application below, however, I wished to address what transpired after the grant of conditional leave by the Deputy Registrar.

11 After the First Defendant obtained conditional leave to enter an appearance on the basis of an irregularity with the writ, the next application ought to have been to set aside the Writ within a reasonable time. The usual time is within 14 days of the grant of conditional leave, however, that is within the discretion of the Registrar.

12 However, instead, the First Defendant's sought to make an application for security for costs and relied upon Order 23, rule 2 (set out at paragraph 8). Therefore, on the one hand, the First Defendant complained of the irregularity and on the other, relied upon it. This constituted a waiver of the irregularity in my view. The court adopts the position taken in the case of The Assunta [1902] P. 150. In that case, the Defendants had complained of an irregularity but also applied for security for costs. The irregularity complained of involved the title of a Plaintiff who commenced an action in the name of his firm alone and not “as owners”. However, the indorsement reflected the term “as owners”. The court found that it was a mere irregularity which could be cured by leave to amend. Further, Sir F. H. Jeune P., said “… as the defendants had, by applying for security for costs, taken a fresh step after knowledge of the irregularity, they were precluded by rule 2 of the same order from taking advantage of the irregularity.”

13 Similarly, in the instant case, I also share the view that the omission of the Claimant's address was a mere irregularity that could have been cured by an amendment with leave. However, this is unnecessary now given the effect of the positon taken by the First Defendant.

The Present Application

14 By a Notice of Motion filed on December 23, 2022 the...