James A L Peniston trading as East Bank Consultants v Gaythorne Mark Gibbons

• Jurisdiction: Bermuda
• Judgment Date: 11 April 2017
• Neutral Citation: [2017] SC Bda 28 Civ
• Date: 11 April 2017
• Docket Number: CIVIL JURISDICTION 2015: No. 485
• Court: Supreme Court (Bermuda)

[2017] SC (Bda) 28 Civ

In the Supreme Court of Bermuda

CIVIL JURISDICTION 2015: No. 485

Between:

James A L Peniston trading as East Bank Consultants

Plaintiff

and

Gaythorne Mark Gibbons

Defendant

The Plaintiff appeared in person

Mr Edward P Bailey, Edward P Bailey & Associates, for the Defendant

Strike out application — Rules of the Supreme Court, Order 18, rule 19(1)(d) — whether too late to bring said application — whether valid assignment of debt

EX TEMPORE JUDGMENT

(In Court)

Introduction

1 By a specially indorsed writ of summons dated 3 ^rd December 2015 “ East Bank Consultants” (“EBC”) claimed $78,992 from the Defendant for breach of a building contract. EBC sued in their capacity as assignees of the debt. The assignor was Hunts Sanitation Ltd. The assignment was made by way of a deed of assignment dated 3 ^rd July 2015. Importantly, however, the Defendant was not given written notice of the assignment until after the writ had been issued. The matter has been listed before me today for trial.

2 By a summons dated 22 ^nd February 2017, the Defendant seeks pursuant to Order 18, rule 19 of the Rules of the Supreme Court 1985 (“RSC”) to strike out the Plaintiff's claim on two grounds: (i) that EBC has no legal personality and is therefore unable to sue; and (ii) that the purported assignment was a nullity (“the assignment point”). That summons has also been listed before me today.

First ground

3 It is true that EBC has no legal personality. However at a hearing on 21 ^st November 2016 I gave the Plaintiff leave to amend the style of the Plaintiff in the title to the action from “ EBC” to “ James A L Peniston t/a EBC” as I was satisfied that this nomenclature accurately reflected the Plaintiff's true identity. Ie that EBC was a trading name for Mr Peniston. Thus the effect of the amendment was not to substitute a new plaintiff but to correctly name the existing one. RSC Order 20, rule 5(3), which deals with an amendment to correct the name of a party where such amendment involves the substitution of a new party, was not therefore engaged. But if that rule had been engaged, I should have been satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue. The Defendant's counsel at the November hearing, who was not Mr Bailey, did not object to the amendment or seek leave to appeal the Court's decision. The first ground of the strike out application therefore fails.

Preliminary objection to second ground

4 The Plaintiff submits that it is too late to raise the assignment point in a strike out application. RSC Order 18, rule 19(1) provides that a court may “ at any stage of the proceedings” order a pleading or the indorsement of a writ to be struck out. However the commentary to rule 19 in the 1999 Edition of the White Book at para 18/19/3 provides:

“ Although the rule expressly states that the order may be made ‘at any stage of the proceedings’, still the application should always be made promptly, and as a rule before the close of pleadings. … The application may be made even after pleadings are closed (per Brett M.R. inTucker v. Collinson (1886) 34 W.R. 354, or the trial set down ( Goymer v. Lombard North Central Wheelcase Ltd (1993) The Times, April 1, CA), though it should not be heard at the opening of the trial, save in exceptional circumstances ( Halliday v Shoesmith [1993] 1 W.L.R. 1, CA).”

5 In Halliday v Shoesmith, the last mentioned case in the above extract, Beldam LJ, giving the judgment of the Court, stated at 5 C – D:

“ It seems to me that where a party to litigation delays making an application of this kind until the opposite party has incurred all the costs of preparing for trial and has indicated that he is himself intending to exercise his right to proceed to trial, he has conducted himself in a way which has induced the opposite party to incur costs and expense and, if his contentions be right, has unwarrantably increased the potential liability of the opposite party to pay his costs. It seems to me that such an application should, in the ordinary way, be made at the earliest opportunity and that a court should not embark on hearing such an application at the eleventh hour, save in the most exceptional case and on receiving a valid explanation for the lateness of the application.”

6 An additional factor in the present case, although I was not addressed on this point, is the possibility that the Plaintiff would run into difficulties over the applicable limitation period if required to procure a fresh assignment and commence fresh proceedings in order to pursue a claim.

7 However, even if I were to decline to entertain the strike out application it would be open to the Defendant to raise the assignment point by way of legal argument during the course of the trial. Initially the Plaintiff submitted that the Defendant's failure to raise the point until now somehow gives rise to a waiver or estoppel which prevents him from doing so. But I reject that argument, which was not supported by the citation of any authority. Indeed, the Plaintiff subsequently accepted that it was open to the Defendant to take the point during the trial and I am satisfied that...