Sandy Lane Hotel Ltd v Times Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 10 December 2010
• Neutral Citation: [2010] IEHC 443
• Court: High Court
• Docket Number: [1998 No. 6995P]
• Date: 10 December 2010

Sandy Lane Hotel Ltd v Times Newspapers Ltd & Ors

BETWEEN

SANDY LANE HOTEL LIMITED

Plaintiff

AND

TIMES NEWSPAPERS LIMITED, ZOE BRENNAN AND WENDY LEIGH

Defendants

[2010] IEHC 443

[No. 6995 P./1998]

THE HIGH COURT

PRACTICE & PROCEDURE

Parties

Incorrect plaintiff - Application to substitute plaintiff - Criteria to be applied - Whether bona fide error - Whether distinct from application to substitute parties under O 15, r 13 - Date of commencement of action - Whether claim statute barred - O'Reilly v Granville [1971] 1 IR 90 applied; Southern Mineral Oil Ltd (In Liquidation) v Cooney (No 2) [1999] 1 IR 237, Kennemerland v Montgomery [2000] ILRM 370, Kinlon v CIÉ [2005] IEHC 95, [2005] 4 IR 480, Wicklow County Council v O'Reilly [2006] IEHC 265 and Hynes v. Western Health Board [2006] IEHC 55 (Unrep, Clarke J, 8/3/2006) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 15, rr 2 and 15 and O 63, r 1(15) - Application allowed (1998/6995P - Kearns P - 10/12/2010) [2010] IEHC 443

Sandy Lane Ltd v Times Newspapers Ltd

Facts: The plaintiff sought an order pursuant to Order 15 rule 2, Rules of the Superior Courts 1986, substituting "Sandy Lane Co. Limited" for "Sandy Lane Hotel Limited" as the plaintiff in the action. The plaintiff was a holding company formed and registered under the laws of St. Lucia. The plaintiff claimed damages for libel against the defendants arising from the publication of an article in the Sunday Times. The plaintiff had brought an application pursuant to Order 63, rule 1(15), Rules of the Superior Courts, 1986 to correct the name of the plaintiff in the proceedings which was granted by the High Court and appealed successfully to the Supreme Court, where the Court refused to amend the title. The plaintiff claimed that there was a bona fide mistake in the nomination of the plaintiff and that the change of name was necessary for the proper determination of the libel proceedings initiated in 1998 and that delay did not disentitle them to relief. The question arose as to whether the order was necessary for the proper determination of the dispute and whether the mistake was bona fide.

Held by Kearns P. that the Court would grant the order sought. The mistake which had occurred in the name of the plaintiff was bona fide. No injustice would result from this order as the defendants had been properly served with proceedings and put on full notice of the case against them. The Court was satisfied that the order for substitution was necessary for the determination of the real matter in dispute.

Reporter: E.F.

RSC O. 15 r2

RSC O. 63 r1(15)

RSC O. 15

SOUTHERN MINERAL OIL LTD (IN LIQUIDATION) & SILK OIL (IRL) LTD (IN LIQUIDATION) v COONEY & FLAHERTY (NO 2) 1999 1 IR 237 1998 2 ILRM 375 1998/31/12345

PROBE DATA SYSTEMS LTD (NO 1), IN RE 1989 BCLC 561 5 BCC 384

BV KENNEMERLAND GROEP v MONTGOMERY & FITZPATRICK T/A THOMAS MONTGOMERY & SONS 2000 1 ILRM 370 2000/11/4287

STATUTE OF LIMITATIONS 1957

RSC O. 15 r13

ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS LTD 1998 2 IR 519

O'REILLY v GRANVILLE 1971 IR 90

WICKLOW CO COUNCIL v O'REILLY & ORS UNREP CLARKE 8.2.2006 2006/58/12369 2006 IEHC 265

KETTEMAN & ORS v HANSEL PROPERTIES LTD & ORS 1987 AC 189 1987 2 WLR 312 1988 1 AER 38

KINLON v CORAS IOMPAIR EIREANN 2005 4 IR 480 2006 1 ILRM 22 2005/35/7260 2005 IEHC 95

HYNES v WESTERN HEALTH BOARD & CRONIN UNREP CLARKE 8.3.2006 2006/29/6275 2006 IEHC 55

1 JUDGMENT of Kearns P. delivered on the 10th day of December, 2010.

2 This is an application for an order pursuant to Order 15, rule 2 of the Rules of the Superior Courts, 1986 substituting "Sandy Lane Hotel Co. Limited" (hereinafter referred to as "the proposed plaintiff") for "Sandy Lane Hotel Limited" (hereinafter referred to as "the plaintiff") as the plaintiff in this action.

3 The plaintiff is a holding company formed in 1996 which is registered under the laws of St. Lucia. The proposed plaintiff is the wholly owned subsidiary of the plaintiff. The proposed plaintiff is the owner and operator of a world-renowned hotel business, the Sandy Lane Hotel, in Barbados. The plaintiff herein claimed damages for libel against the defendants arising from the publication of an article in the Sunday Times on the 1 ^st March, 1998. The first defendant is the publisher of the article and the second and third defendants are journalists and authors of the article.

4 The proceedings were instituted against the defendants by way of plenary summons dated the 15 ^th June, 1998, with affidavits being exchanged by the parties in April, 2001. The proceedings were dormant until June, 2004 when a Notice of Intention to Proceed together with a Notice of Trial were served.

5 Following a review of the discovery made by the plaintiff, it emerged that the plaintiff's name on the title to the proceedings was incorrectly stated as being "Sandy Lane Hotel Limited" and not "Sandy Lane Hotel Company Limited". The plaintiff then brought an application pursuant to O. 63, r. 1 (15) of the Rules of the Superior Courts for an order correcting the name of the plaintiff in the proceedings. The High Court granted the order sought. The defendants successfully appealed that order to the Supreme Court where Hardiman J. delivered judgment (with Fennelly and Macken JJ. concurring) on the 16 ^th November, 2009. As a result of the Supreme Court's refusal to amend the title, this application was brought under Order 15 of the Rules of the Superior Courts.

SUBMISSIONS OF THE PLAINTIFF

6 Counsel for the plaintiff relied on three arguments when requesting the Court to grant the order sought as follows: First, that a bona fide mistake in the nomination of the plaintiff had occurred in this case; second, the change of name of the plaintiff was necessary for the proper determination of the libel proceedings initiated in 1998, and third, contrary to the submission of the defendants, delay in moving for relief should not be allowed to defeat the application.

7 It was counsel's submission that the action was commenced in the name of the wrongly described plaintiff through a bona fide mistake. This was not a case of the plaintiff choosing the wrong party to take the action and then later seeking to bring in a different party and counsel relied upon the decision of Shanley J. in Southern Mineral Oil Ltd. (in liquidation) v. Cooney (No. 2) [1999] 1 I.R. 237. In that case Shanley J. had placed particular reliance on the test propounded by Millet J. in Re Probe Data Systems [1989] B.C.L.C. 561 at p. 563 in relation to the equivalent English rule at p. 247 which concluded that "[t]he mistake must have been a mistake as to the name or identity of the intended party".

8 Counsel further submitted that the present application could be distinguished from the facts of Southern Mineral Oil Ltd. (in liquidation) v. Cooney (No. 2) on the basis that there was a genuine mistake as to the name or identity of the intended party.

9 Furthermore, counsel relied heavily upon the decision of Geoghegan J. in Kennemerland v. Montgomery [2000] 1 I.L.R.M. 370. The facts in that case satisfied Geoghegan J. that the proceedings were brought in the name of the wrong plaintiff due to a bona fide error and he accepted the affidavit evidence tendered on behalf of the applicant to that effect.

10 It was also submitted that the defendants acted at all times on the basis that they were being sued by the entity which owned and operated the Sandy Lane Hotel, i.e. the proposed plaintiff. The defendants did not plead that the plaintiff was not the owner of the Sandy Lane Hotel or its business or that it had no standing to sue.

11 Counsel submitted that the order sought pursuant to O. 15, r. 2 should be granted by this Court as it was clearly necessary for the proper determination of the real matters in dispute.

12 Counsel further submitted that the Statute of Limitations 1957 (as amended) could not be successfully invoked by the defendants as a means of defeating this application. It was submitted that it is not appropriate for this Court, at this juncture of the proceedings, to seek to determine the issue of whether or not the Statute of Limitations applies in the event that the proposed plaintiff is substituted for the plaintiff. Counsel argued that estoppel would ultimately arise and bar a defence on the Statute of Limitations on the basis of the clear acceptance by the defendants that they were being sued by the entity which owned and operated the Sandy Lane Hotel, i.e. the proposed plaintiff.

13 Counsel noted the important distinction between Order 15, rule 2 and Order 15, rule 13. Where a court adds a defendant pursuant to r. 13, the proceedings as against that defendant are deemed only to have begun on the making of the order adding that party as defendant. Therefore, the Statute of Limitations will apply to determine whether or not the plaintiff's claim against the added defendant is statute barred as at the date of the making of the order adding the defendant. In contradistinction to this, O. 15, r. 2 does not make such a provision. The rationale underpinning the distinction lies in the fact that, in circumstances where the wrong person has been added as plaintiff through a bona fide mistake, the defendant has nonetheless been properly served with proceedings putting him on full notice of the case being made against him and putting him in a position to meet that case. Counsel argued that substituting the proposed plaintiff for the plaintiff ultimately causes no prejudice or injustice to the defendant. The underlying cause of action remains and would remain the same. Furthermore, the interests of justice demand that the error be corrected without the defendant being able to benefit from the "windfall" of a defence on the...