THE SUPREME COURT

Hardiman J. 420/2005
Fennelly J.
Macken J.

SANDY LANE HOTEL LIMITED

PLAINTIFF/RESPONDENT

AND

TIMES NEWSPAPERS LIMITED, ZOE BRENNAN AND WENDY LEITH

DEFENDANTS/APPELLANTS

JUDGMENT of Mr. Justice Hardiman delivered the 16th day of November, 2009.

This is an appeal by the defendants from an order of the High Court, Johnson J., (as he
then was) made the 7th 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.

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

The underlying cause of action here is libel. The plaintiff takes exception to an article
published by the defendant as long ago as the 1st 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.

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:

‘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.

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”.

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.”
 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 last mentioned 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.
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.

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.

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 Lane Holdings Limited.

On the 22nd April, 1997, Sandy Bay Hotel Limited, the Company which both owns and
operates the Sandy Lane Hotel, changed its name to Sandy Lane Hotel Co. Limited. That
is how and when the proposed plaintiff came into being.
 All of these complex corporate transactions were carried out for tax planning purposes
and to facilitate acquisitions.

The above account is based on a letter from the plaintiff’s solicitors, William Fry and
Company of the 16th May, 2005 and on the affidavit of Brian O’Sullivan of the 11th June,
2005.

Mr. O’Sullivan is the Company secretary of the present plaintiff. He says frankly that:

“At the time of change of name in 1997, I thought nothing of the inclusion of the
word ‘Co.’ in the title of the plaintiff.

Indeed, when the article appeared in the Sunday Times, and when proceedings
were subsequently issued, I understood the name of the plaintiff company was
Sandy Lane Hotel Limited. It was only when the issue was recently drawn to my
attention that I recalled that the word ‘Co.’ had in fact been included in its title on
the initiative of [a Barbados lawyer] as set out above.”

He further says that:

“The reason the error [that is, the alleged error in the name of the plaintiff]
occurred is that the inclusion of the word ‘Co’ in the name of the plaintiff was not
originally intended.”

It may be noteworthy that in the written submissions of the plaintiff, what they say is an
error in the plaintiff’s name in the title of the proceedings is called “a clear case of an
administrative error”.

They go on to submit that the plaintiff in making the present applicant:

“was not seeking to add a new party or to substitute a different party for the party
who instituted the proceedings. It was simply seeking to correct an error in the
name of the plaintiff as appearing in the title of the proceedings… this is not a case
of the wrong plaintiff suing the defendant. The proceedings were issued on behalf
and with the instructions of Sandy Lane Hotel Co. Limited through administrative
inadvertence, the plaintiff was named as “Sandy Lane Hotel Limited” in the title to
the proceedings.”
The plaintiffs then go on to characterise the defendant’s opposition to the application as
“opportunistic”. They say “as a matter of happenstance, the plaintiff’s parent has the
name Sandy Lane Hotel Limited. It is this happenstance that permits the defendants the
opportunity to contend that the plaintiff ought to have applied for an order of substitution
of one party for another as the plaintiff under Order 15 as opposed to Order 63.”

The Companies, of course, bear the names the “consortium” chose, and altered when
they pleased. This is not “happenstance”.

The submissions quoted above, in my view, go to the nub of the case. I am not sure that
they are helpful to the plaintiff. Order 63 Rule 1(15), which is a relief that may be granted
ex parte by the Master, relates to “the correction of clerical errors or errors in the names
of parties in any proceeding”.

This is to be contrasted with Order 15 Rule 2 which provides:

“Where an action has been commenced in the name of the wrong person as
plaintiff, or where it is doubtful whether it has been commenced in the name of the
right plaintiff, the court may, if satisfied that it has been so commenced through a
bona fide mistake, and that it is necessary for the determination of the real matter
in dispute so to do, order any other person to be substituted or added as a plaintiff
upon such terms as may be just.”

Order 15 Rule 13 provides:

“No cause or matter shall be defeated by reason of the mis-joiner or non-joiner of

parties, and a court may in every cause or matter deal with the matter in
controversy so far as regards the rights and interests of the parties actually before
it. The Court may at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to the court to be
just, order that the names of any parties improperly joined, whether as plaintiffs or
as defendants, be struck out and the names of any parties, whether plaintiffs or
defendants who ought to have been joined or whose presence before the court may
be necessary in order to enable the court effectually and completely to adjudicate
upon and settle all questions involved in the cause or matter, be added…”.
 In construing Order 63 Rule 1(15) it is necessary first to note that the term “clerical
error” has been the subject of judicial decisions.

In R. v. Commissioner of Patents, ex parte Martin [1953] 89 CLR 381, Fullager J. held that:

“… the characteristic of a clerical error is not that it is in itself trivial or unimportant,

but that it arises in the mechanical process of writing or transcribing.”

In a later case, re Meres Application [1962] RPC 182 the term “clerical error” was
described as follows in another patent case, in words which plainly followed the case cited
above:

“The words ‘clerical error’ must, I think, be taken to mean a mistake made in the
course of a mechanical process such as writing or copying as distinct from an order
arising, e.g. from lack of knowledge, or wrong information, in the intellectual
process of drafting language to express intentions.”

Having regard to the structure of Order 61 Rule 1(15) I believe that the phrase “errors in
the names of parties” must be construed in the same sense as the proceeding phrase,
with which it is “eiusdem generis”, “clerical errors”. Either category of error must be
construed in contradistinction from another sort of error arising from “lack of knowledge
or “wrong information…”. It appears to me, from a consideration of Mr. O’Sullivan’s
affidavit on behalf of the plaintiff, that the mistake made in this case is not one which can
be described as a clerical error, or anything like it. He frankly admits that the name
“Sandy Lane Hotel Co. Limited” was not originally intended to be used in the proceedings.
This was because, although he knew of the history of the companies, it was not present
to his mind, or to the mind of the lawyers, that the company actually operating the hotel
was the Sandy Lane Hotel Co. Limited. This in turn was because, as he very frankly says
“At the time of the change of name in 1997 I thought nothing of the inclusion of the word
‘Co.’ in the title of the plaintiff.”

This is not in my view a clerical error. The error here arose due to a mistaken belief and a
failure to ascribe any significance to the change of name of 1997. This is a misguided
state of mind with which one cannot have much sympathy, given that it was made by or
on behalf of “a consortium of businessmen”, in the course of a complicated series of
arrangements made for tax planning purposes, in which they obviously had the benefit of
the best legal and taxation advice.

The consortium running the Sandy Lane Hotel were of the view that it was important for
corporate or tax planning purposes that the entity operating the hotel should be the
Sandy Lane Hotel Co. Limited. Nor did this simply involve a change of name: there was
another, completely different, Company called the Sandy Lane Hotel Limited. The
operating Company was a Barbados Company but the latter Company, which appears as
plaintiff at present, is a St. Lucia Company. The plaintiff’s case would in my opinion have
been a stronger one if they had simply failed to get the name of the operating company
right. But in the events that happened they actually used the name of an entirely different
Company, which however appears to be the parent Company of the operating Company.
This in my view is not a clerical error or anything similar to a clerical error. It requires, if
it is to be remedied, the substitution of a new entity which co-existed the plaintiff at all
material times. Because of the delay (and there has been gross delay) the defendants
might be able to object to the substitution of a new party on the grounds that the statute
of limitations has run as against that party. Since this is a separate issue which may well
come before the courts, I will say nothing about it. But I would not be prepared to deprive
the defendants of the opportunity of raising it.

I do not believe that this is an application appropriate to Order 63 Rule 1(15) and would
therefore allow the appeal and refuse the relief sought by the plaintiff.