Hughes v Hughes

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Saunders, J.
• Judgment Date: 09 December 1996
• Neutral Citation: AI 1996 HC 3
• Docket Number: Civil Suit No. 70 of 1995
• Date: 09 December 1996

High Court

Saunders, J.

Civil Suit No. 70 of 1995

Hughes

and

Hughes

Appearances:

Ms. P. Harrigan for the plaintiff

Mr. C. Abel for the defendant

Practice and procedure - Statement of claim — Application for amendment to add plaintiff's name to action on ground that due to an error made by the Lands and Surveys Dept. her name as administratrix of the estate had been omitted — RSC O.20, r.5(3) applicable — Application granted.

Saunders, J.

1 The plaintiff is the administratrix of the estate of Mary Richardson, deceased. On the 31st July, 1995 she filed a specially endorsed writ thereby instituting proceedings against the defendant. In that writ she alleged that the defendant had, since 1984, been trespassing upon lands (hereinafter called “the said lands”) over which she had obtained a Grant of Letters of Administration. She further alleged that the defendant had threatened her with violence and had been operating a business on the said lands over her objections. She claimed damages for trespass; an order that the defendant do vacate the said lands; and an injunction to restrain him from entering thereon.

2 The defendant denies everything. He alleges that the plaintiff was not and never was entitled to the lands in question. In any event, he states, the plaintiff's claims are barred by laches and acquiescence.

3 This suit was scheduled to come on for hearing on the 9th December, 1996 but, on the 4th December, 1996 the defendant applied by summons for, inter alia, an Order that a preliminary issue be tried as to “whether the plaintiff is and was at any time and/or all material times the registered proprietor in possession” of the said lands. This summons was supported by an affidavit sworn to by the defendant in which the defendant deposed that the registered proprietor of the said lands “since 26th June, 1995” is one, Orlando St. Clair Richardson.

4 It is reasonable to assume that as a result of this summons the plaintiff again checked the Anguilla Land Register and, much to her surprise, discovered that in fact the said lands were indeed registered in the name of Orlando St. Clair Richardson. The plaintiff therefore filed a summons of her own seeking an amendment of the writ by adding the name of Orlando St. Clair Richardson as a plaintiff and also a further amendment of the Statement of Claim to reflect these new circumstances. These proceedings are concerned with this latter summons.

5 In support of the application, the plaintiff herself and Orlando St. Clair Richardson each filed affidavits. The facts deposed to in those affidavits were not challenged. What happened was this. Orlando Richardson is a beneficiary of the estate of Mary Richardson, deceased. Orlando does not reside in Anguilla. He lives in St. Eustatius. The lands which form the subject matter of this action constituted his share of the estate of the deceased.

6 The Administratrix, ie the plaintiff herein, is a very elderly lady. In fulfilling her duties as Administratrix, she left certain documents at the Lands and Surveys Department of Anguilla for Orlando to sign whenever he came to Anguilla. These documents included a transfer vesting the said lands in Orlando. In June, 1995 Orlando came to Anguilla and conferred with the plaintiff. He instructed the plaintiff to commence these proceedings on his behalf. He also executed the vesting documents left at the Lands and Surveys Department but, in light of the action which was to be filed by the plaintiff, he requested the authorities not to process these documents until he notified them so to do. He was given the assurance that these instructions will be followed.

7 At the time the writ was filed, both the plaintiff and Orlando Richardson mistakenly believed that the said lands were still legally vested in the plaintiff as Administratrix of the Estate of Mary Richardson, deceased. In her affidavit the latter deposed that “prior to the commencement of this action a search was made in the Lands and Surveys Department by Counsel on my behalf to ensure that I was the registered proprietor, which was confirmed on the 2 ^nd day of May, 1996, by a certified copy of the Register….”. This certified copy was exhibited. Its date of issue is indeed the 2 ^nd May, 1996 and it does show that, since 19 ^th May, 1987, the said lands have been, as a distinct and separate parcel, in the ownership of “Ursula Vanita Hughes of South Hill, Anguilla as Personal Representative of the estate of Mary Richardson, deceased”.

8 It appears that there has been some bungling by the authorities at the Lands and Surveys Department. In point of fact, Orlando's instructions to them were ignored. The vesting documents were processed without his knowledge or consent and the Land Register now shows that since 26th June, 1995 he, and not the plaintiff, is the Registered Proprietor of the said lands. The certified copy issued on the 2nd May, 1996 was evidently issued in error.

9 It is in these circumstances that the plaintiff applies for an Order adding his name as a plaintiff to this action. The defendant stoutly resists the plaintiff's application. He states that the plaintiff is seeking to ground a claim that is unmaintainable; that from 26 ^th June, 1995 (that is to say, before the filing of the writ), the plaintiff had no locus standi to bring to this action and the court ought not now make good a bad claim; that as against the proposed new plaintiff, the defendant will have a good defence under the Limitation Act and that court ought not deprive the defendant of this defence by granting the application.

10 The rules of court which impinge on this question are Order 15 Rule 6 and Order 20 Rule 5. It will be observed that Order 15 Rule 6(1) and 6(2) and Order 20 Rule 5(1) appear to be wide and sweeping in terms. The important issue which faced the courts in construing these provisions was whether they were so wide as t permit new parties to be added to a pending matter in all circumstances where the relevant statute of limitation had expired and it was just and convenient so to do or, whether the courts were restricted, in instances where the Limitation Act was a factor, by the provisions of Order 20 r.5(2) to 5(5).

11 There was no consensus on this issue among the judges in England. In Rodriguez v. Parker [1966] 2 ALL. E. R. 349 it was held that Order 20 Rule 5 was intra vires the Limitation Act so as to permit the substitution of on defendant for another in circumstances where a) the mistake was a genuine one; b) it was not misleading nor such as to cause any reasonable doubt as to the identity of the person intended to be sued; and c) to make the amendment was just.

12 Mitchell v. Harris Engineering Co. Ltd. [1967] 2 All E. R. 682 is to the same effect as Rodriguez v. Parker. This was a case with two companies, an Irish company and a Leeds company, bearing almost similar names. The plaintiff sued the wrong one of these companies. He was allowed to substitute the right company for the wrong...