Lauriston Potter Plaintiff/Appellant v Cora Derrick Defendant/Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: GORDON, J.A.,Chief Justice
• Judgment Date: 20 February 1970
• Judgment citation (vLex): [1970] ECSC J0220-1
• Docket Number: Civil Appeal No. 3 of 1968
• Date: 20 February 1970

[1970] ECSC J0220-1

IN THE COURT OF APPEAL

(On appeal from the Court of Summary Jurisdiction)

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice Gordon

The Honourable Mr. Justice St. Bernard (Acting)

Civil Appeal No. 3 of 1968

Between:

Lauriston Potter

Plaintiff/Appellant

and

Cora Derrick

Defendant/Respondent

L.H. Lockhart for Plaintiff/Appellant

C.O.R. Phillips, Q.C., with Bernice V. Lake for Defendant/Respondent

GORDON, J.A.

1 As a result of a collision between two motor cars owned respectively by the appellant and the respondent in this case, the former brought an action in the Court of Summary Jurisdiction against the latter for damages to his car, and the latter counterclaimed for damages to her car. The counterclaim was based solely on the defence which was pleaded. The trial judge commenced the hearing of the claim and counterclaim as one. At the close of the appellant's case the respondent elected to call no evidence, and the trial judge upholding a submission on her behalf entered judgment for the respondent. The hearing of the counterclaim was then proceeded with.

2 At the end of the respondent's case on the counterclaim the appellant elected to call no witnesses, and submitted that the counterclaim should be dismissed as the defendant had not proved that his car was being driven by his agent. The learned trial judge, having reserved judgment, on his own motion amended a paragraph in the pleadings of the respondent by deleting the word 'plaintiff' and. substituting therefor the words 'plaintiff's driver', and entered judgment in her favour on the counterclaim for $500,00 general damages with costs $25.20.

3 The appellant has appealed against this order on the counterclaim and before this Court argued the two following grounds of appeal:

• " (l) That the learned judge erred in amending the defence and counterclaim after the close of the case and without giving the plaintiff/appellant a chance to adduce testimony thereafter.

• (2) That the damages awarded are excessive."

4 Section 39 of the Summary Jurisdiction Act (Cap. 80) of the Revised Laws of Antigua provides—

"39. In all matters of procedure or evidence, not provided for by this Act, the provisions of the Supreme Court Act, shall apply to causes and proceedings in the Court in the same and the like manner as such provisions apply to causes and proceedings in the Supreme Court, and shall in all respects govern the same."

5 Section 27 of the Supreme Court Act (Cap. 81) of the Revised Laws of Antigua make the Rules of the Supreme Court (U.K.) applicable locally.

6 Order 28 rule 12 of the Rules of the Supreme Court (U.K.) which is as follows:

"12. The court or a judge may at any time, and on such terms as to costs or otherwise as the court or judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings,"

7 gives the Court the necessary power to amend at any...