Barefoot Yacht Charters (Caribbean) Ltd v Kenneth Houston
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 04 July 2018 |
| Neutral Citation | VC 2018 HC 42 |
| Court | High Court (Saint Vincent and the Grenadines) |
| Docket Number | SVGHAD2013/0002 |
| Date | 04 July 2018 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Henry, J.
SVGHAD2013/0002
Ms. Annique Cummings for the claimant.
Defendant unrepresented.
Civil practice and procedure - Service — Application for order dispensing with service of amended claim form.
This is an application by the claimant for an order dispensing with service of the claim form on the defendant. Barefoot Yacht Charters (Caribbean) Limited (‘Barefoot Charters’) claims to be a company incorporated in the State of Saint Vincent and the Grenadines, with its principal place of business at Blue Lagoon on mainland Saint Vincent. It alleged that Kenneth Houston is the owner of the yacht ‘Freedom Quest’ and that Barefoot Charters entered an agreement with him to manage the yacht. Barefoot Charters averred that the agreement conferred on it authority as sole agent to market, manage and maintain the yacht.
Barefoot Charters asserted that Mr. Houston reneged on his agreement to pay for the services, as a consequence of which his account fell into debt. It alleged that it has lost contact with Mr. Houston since June 2010 despite steady efforts to contact him. Barefoot Charters claimed that it has incurred expenses totaling $210,389.70 for the management, upkeep, maintenance, marketing and chartering of the yacht ‘Freedom Quest’. On 9 th April 2013, it filed this claim in rem to recover the debt of $332,828.92, including interest and costs. By Amended Claim Form filed on 24 th April 2013, Barefoot Charters reduced the sum claimed to $223,141.66 and expanded the period 1 over which the debt was allegedly incurred.
By affidavit of service filed on 4 th October 2013 and attested to by Atisha Illisa Gould, Law Clerk at Cardinal Law chambers, Barefoot Charters advanced that the claim form, statement of Claim, acknowledgement of service and Defence and counterclaim were sent to Mr. Houston by Federal Express at his last known address at 1630 Elmore Drive, Jonesboro, Georgia 30236, USA. Ms. Gould exhibited a copy of the ‘proof of delivery’ which reflected that it was signed for by J. Josey’. Barefoot Charters did not indicate whether J. Josey was related to Kenneth Houston and if so in what capacity, nor did it indicate if he was likely to have received the package.
By order dated 19 th February 2018 Barefoot Charters was granted an extension of time to effect service of the claim form and supporting documentation on Mr. Houston. No further affidavit of service has been filed. By Notice of Application filed on 31 st May 2018, Barefoot Charters applied for an order to dispense with service of the amended Claim Form.
The issue is whether the court should make an order dispensing with service of the amended claim form.
The Court may dispense with the service of a claim form in exceptional circumstances. 2 It may do
so at any time on application made without notice and supported by evidence on affidavit.The application in this case is supported by the affidavit of Glenda Barrow filed on 31 st May 2018. Ms. Barrow averred that she is a law clerk at Cardinal Law Firm and that she makes the affidavit on Barefoot Charters' behalf and with its permission. She deposed that on June 3 rd 2013, the Court made an order that Mr. Houston be served with the claim form by courier at his last known address ‘1630 Elmore Drive, Jonesboro, Georgia, USA’.
It is a matter of record that the referenced court order was made on application by Barefoot Charters supported by affidavit by Ms. Atisha Illisia Gould. In that affidavit, Ms. Gould averred among other things that Kenneth Houston's last known address is 1630 Elmore Drive, Jonesboro, Georgia 30236, United States of America; and that she is advised by legal counsel that service of the claim form and statement of claim via international courier service to the respondent's last known address is sufficient to enable him to ascertain the contents of the claim.
The records on the case file reveal that the court order provided:
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‘1. That the Applicant is permitted to serve the Claim Form and Statement of Claim in the above matter via an international courier service.
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2. That the time limit for the filing of an Acknowledgement of Service shall be 35 days after the date of service.
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3. That the time limit for the filing of a Defence shall be 56 days after the date of service.’
CPR 5.13 provides that where a claimant chooses a method of service other than personal service or service by postal or electronic means, he must file evidence on affidavit proving that the method of service was sufficient to enable the defendant to ascertain the contents of the claim form. Such affidavit must exhibit a copy of the documents served and give details of the method of service used.
The CPR mandates that the affidavit must also show that the person intended to be served was able to ascertain the contents of the documents; or that it was likely that he would have been able to do so. It must state the time when the person was or was likely to have been in such position to ascertain the contents of the documents.
In the affidavit of service sworn to by Ms. Gould and filed on 4 th October 2013, she stated:
‘I Atisha Illissa Gould, Law Clerk at Cardinal Law Firm, 114 Granby Street, Kingstown, St. Vincent and the Grenadines, do make oath and say as follows;
1. That on the13 th day of August, 2013, the Claim Form, Statement of Claim, Acknowledgment of Service and Defence and Counterclaim in the above matter, was sent to the Defendant via Federal Express, to be delivered at the following address “1630 Elmore Drive, Jonesboro, Georgia 30236, USA”. A copy of the international airway bill is annexed hereto and marked “AIG1”.
2. That on the 14 th day of August, 2013 the aforementioned documents were delivered by Federal Express at the address stated above. A copy of the Proof of Delivery is annexed hereto and marked “AIG2”.
3. That the information stated to herein is true to the best of my knowledge, information and belief.’
The affidavit did not comply strictly or substantially with the requirements outlined in CPR 5.13. In that regard, it did not attest that the method of service was sufficient to enable Mr. Houston to ascertain the contents of the claim form; did not exhibit a copy of the documents served and did not claim or show that Mr. Houston was able to ascertain the contents of the documents; or that it was likely that he would have been able to do so. Furthermore, it did not reveal the time when he was or was likely to have been in such position to ascertain the contents of the documents. The Court is therefore unable to ascertain that the documents have come to Mr. Houston's attention.
In her affidavit of 31 st May 2018, Ms. Glenda Barrow deposed that Mr. Houston was served by Federal Express at the 1630 Elmore Drive address, in accordance with the June 3 rd 2013 order of court. She did not indicate how she was able to ascertain this. She did not say whether she had firsthand knowledge of this. She averred that the package was signed for and accepted by a person residing at that address. This does not advance Barefoot Charters' assertion that Mr. Houston was served with the package.
There was no evidence from which the Court could reasonably conclude that Mr. Houston resided at that address on the date of delivery of the package. The referenced service was not proved in accordance with the CPR. In the premises, Barefoot Charters failed to establish on a balance of probabilities that the documents had come to Mr. Houston's attention or were likely to have come to his attention.
Ms. Barrow deposed further that Barefoot Charters informed her that Mr. Houston left his Yacht ‘Freedom Quest’ in its possession and has remained out of contact since 2010. She indicated further that Barefoot Charters informed her that:
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1 Mr. Houston has made no attempts to collect the yacht for the past 8 years and has made no inquiry about the yacht;
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2 all attempts to contact Mr. Houston since 2010 have been futile; that it has done all in its power to contact him and has exhausted all efforts to do so;
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3 it has expended expenses in taking care of the yacht; and
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4 Mr. Houston has abandoned his yacht and has made no efforts to reclaim it.
Ms. Barrow attested that she has been advised by counsel that the Court may dispense with service in exceptional circumstances; that this is an exceptional case because Barefoot Charters has complied with the order to serve Mr. Houston with the Amended claim and accompanying exhibits at his last known address in 2013; that Mr. Houston has abandoned his yacht and cut off all communication with Barefoot Charters since 2010; that he is aware of the Yacht management agreement and has left his yacht in Barefoot Charters' possession.
Barefoot Charters submitted that at no time did it seek not to serve Mr. Houston or to hide the contents of the claim form from him. It cited the case of Godwin v City Borough Council. It quoted May LJ where he stated in the judgment:
‘There will be plenty of commonplace circumstances in which formal service or reservice of a document may be pointless and where it will be sensible and economic for the court to dispense with it.’ 3
Barefoot Charters contended that the instant case is one in which it is ‘sensible and economic’ for the Court to dispense with reservice of the document or further proof of service ‘given that the Claim Form was served in accordance with an order of court five years ago’, having been delivered and received at Mr. Houston's last known address ‘as stipulated in the...
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