Sandy Lane Hotel Ltd v Times Newspapers Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 16 November 2009
• Neutral Citation: [2009] IESC 75
• Date: 16 November 2009
• Court: Supreme Court
• Docket Number: [S.C. No. 420 of

Sandy Lane Hotel Ltd v Times Newspapers Ltd & Ors

[2009] IESC 75

SANDY LANE HOTEL LIMITED

Plaintiff/Respondent

and

TIMES NEWSPAPERS LIMITED, ZOE BRENNAN and WENDY LEITH

Defendants/Appellants

[2009] IESC 75

Hardiman J.

Fennelly J.

Macken J.

420/2005

THE SUPREME COURT

PRACTICE AND PROCEDURE

Parties

Correction of names of parties - Clerical error - Correction of clerical error - Whether error in name of plaintiff amounted to clerical error - Whether error arose from lack of knowledge - Whether error arose from mistaken belief - Whether application brought pursuant to appropriate rule - R v Commissioner of Patents, ex p Martin (1953) 89 CLR 381 and Re Maere's Application [1962] RPC 182 followed - Rules of Superior Courts 1986 (SI 15/1986) O 63 , r 1 - Defendants' appeal allowed (420/2005 - SC - 16/11/2009) [2009] IESC 75

Sandy Lane Hotel Ltd v Times Newspapers Ltd

Facts The defendant appealed against the order of the High Court granting the application of the plaintiff to substitute 'Sandy Lane Hotel Co. Limited' for 'Sandy

Lane Hotel Limited' in the present proceedings. The aforementioned order was made pursuant to Order 63, Rule 1(15) RSC. The defendant submitted that the application should have been brought pursuant to Order 15, Rule 2 or Order 15, Rule 13 and if so brought, the defendant would have argued that there was no mistake and further that the application should not be granted because the cause of action was statute barred. The Company Secretary of the plaintiff stated on affidavit that he understood the name of the plaintiff company was 'Sandy Lane Hotel Limited' and thought nothing of the inclusion of the word 'company' in the title when the company changed its name in 1997.

Held by the Supreme Court: Hardiman J (Fennelly, Macken JJ) in allowing the appeal: That Order 63, Rule 1 (15) related to 'the correction of clerical errors or errors in the names of parties in any proceedings'. The mistake made in this case was not one which could be described as a clerical error, or anything like it. The error herein arose due to a mistaken belief and a failure to ascribe any significance to the change of name in 1997. The error required, in order to be remedied, the substitution of a new entity which co-existed the plaintiff at all material times.

Reporter: L.O'S.

RSC O.63 r1(15)

RSC O.15 r2

RSC O.15 r13

RSC O.15

RSC O.63

R v CMSR OF PATENTS, EX PARTE MARTIN 1953-4 89 CLR 381 1953 HCA 67

MAERE'S APPLICATION (CLERICAL ERROR), IN RE 1962 RPC 182

1 Mr. Justice Hardimandelivered the 16th day of November, 2009.

2 Judgment delivered by Hardiman J. [nem diss]

3 This is an appeal by the defendants from an order of the High Court, Johnson J., (as he then was) made the 7 ^th November, 2005, whereby the High Court granted the application of the plaintiff to substitute " Sandy Lane Hotel Co. Limited" for " Sandy Lane Hotel Limited" in the present proceedings.

4 This order was made pursuant to Order 63 Rule 1(15) of the Rules of the Superior Courts.

5 The underlying cause of action here is libel. The plaintiff takes exception to an article published by the defendant as long ago as the 1 ^st March, 1998. Proceedings by the present plaintiff were instituted in June 1998. In the course of the discovery process a variation between the name of the plaintiff, and the name of the Company shown on various Hotel accounts was noticed. The proceedings, after discovery, went dormant between 2001 and 2004. In June of the latter year a Notice of Intention to Proceed and a Notice of Trial were served. The present application was subsequently brought.

The High Court judgment.

6 The High Court judgment was very brief and the agreed note of counsel may be set out in full:

"Having considered the affidavit's evidence and the submissions by counsel for the parties, Johnson J., having expressed the views during oral argument that (a) he believed that the defendants were at all times aware of the fact that the person taking the case was the owner of the Sandy Lane Hotel and (b) that justice would not be served if the position adopted by the defendants on the application were to succeed, ruled as follows:"

7 'I will grant an order in terms of the plaintiff's Notice of Motion. In my view there is no injustice in so doing.' "

The Notice of Motion.

8 The Notice of Motion seeks an order "pursuant to Order 63 Rule 1(15) of the Rules of the Superior Courts for the correction of the name of the plaintiff in these proceedings to " Sandy Lane Hotel Co. Limited".

9 Order 63, Rule 1(15) provides that the Master of the High Court may make:

"An order for the correction of clerical errors or errors in the names of parties in any proceeding, whether on consent or not, but subject to re-service when not on consent."

10 The issue of this appeal may be stated simply: the plaintiff claims that the present application is within the rule just cited. The defendant denies this and says that the application should more properly be brought under Order 15, Rule 2 or Order 15, Rule 13 of the Rules. The defendant does assert that if the plaintiff were to bring an application under the lastmentioned rules, it would not only contend that there was no mistake made but would further contend that the application should not be granted because the cause of action in the proposed plaintiff is statute barred. It would make a similar submission in relation to an application under Order 15, Rule 13.

The facts.

11 The Sandy Lane Hotel is a very widely known luxury hotel in Barbados. Since 1961 it had been operated by a Barbados Company called Sandy Bay Hotel Limited. This company owned the hotel, its grounds, and an adjacent golf course. At some stage it became part of the Trust Houses Forte Group.

12 In 1996 there was a sale to a "consortium of businessmen" by the Trust Houses Forte Group and this was achieved by selling the Company to a St. Lucia Company, Sandy Lane Hotel Limited. This Company then bought Sandy Bay Hotel Limited, which seems to have been a Barbados Company. About the same time a further Barbados Company, Sandy Lane Properties Limited was set up so that it could purchase some 500 acres of land 2 kilometres from the hotel but touching the furthest point of its grounds.

13 Sandy Lane Properties Limited is in turn owned by another St. Lucia Company, Sandy Land Holdings Limited. The effect of all this is that the two Barbados Companies, Sandy Bay Hotel Limited and Sandy Lane Properties Limited, were owned by two St. Lucia Companies, Sandy Lane Hotel Limited and Sandy...