Penistion (trading as East Bank Consultants) v Gibbons

• Jurisdiction: Bermuda
• Judgment Date: 11 April 2017
• Date: 11 April 2017
• Docket Number: Civil Jurisdiction 2015 No 485
• Court: Supreme Court (Bermuda)

[2017] Bda LR 36

In The Supreme Court of Bermuda

Civil Jurisdiction 2015 No 485

Between:

James AL Peniston (trading as East Bank Consultants)

Plaintiff

and

Gaythorne Mark Gibbons

Defendant

Plaintiff in person

Mr E Bailey for the Defendant

The following cases were referred to in the judgment:

Halliday v Shoesmith [1933] 1 WLR 1

East Bank Consultants v Ferigo [2016] Bda LR 100

WF Harrison & Co Ltd v Burke [1956] 1 WLR 419

Strike out application — Whether too late to bring application — Valid assignment of debt

EX TEMPORE JUDGMENT of Hellman J

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...