Ernest Hilaire v Allen Chastanet

Lord Lloyd-Jones AND

This appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (Saint Lucia) turns on the interpretation of article 917A of the Civil Code, Chapter 4.01 of the Revised Laws of Saint Lucia (“the Civil Code”) which in relevant part provides as follows:

“(1) Subject to the provisions of this article, from and after the coming into operation of this article the law of England for the time being relating to contracts, quasi-contracts and torts shall mutatis mutandis extend to Saint Lucia, and the provisions of articles 918 to 989 and 991 to 1132 of this Code shall as far as practicable be construed accordingly; and the said articles shall cease to be construed in accordance with the law of Lower Canada or the ‘Coutume de Paris’ …

…

(3) Where a conflict exists between the law of England and the express provisions of this Code or of any other statute, the provisions of the Code or of such other statute shall prevail.”

As originally enacted article 917A referred to “this Colony” and not to “Saint Lucia”.

The central issue in these proceedings is whether the Defamation Act 2013 (“the 2013 Act”) which was enacted by the Westminster Parliament is imported into the law of Saint Lucia by article 917A. In particular, we are concerned with the question whether the introduction by section 8 of the 2013 Act of the single publication rule and further provision for the time of the accrual of a cause of action means that the claim in these proceedings is largely if not completely time barred.

By a claim form dated 20 March 2017 the appellant, Mr Ernest Hilaire, commenced a defamation claim against the respondent, Mr Allen Chastanet, who defended the claim pleading the provisions of the 2013 Act.

Each party applied to strike out the other's pleadings. At the hearing of the strike out applications it was agreed that the issue of the importation of the 2013 Act into the law of Saint Lucia should be tried as a preliminary issue, as the viability of each party's pleading depended on the determination of the issue.

The preliminary issue was tried by Smith J in the High Court of Justice of the eastern Caribbean Supreme Court (Saint Lucia) who, in his judgment dated 29 November 2018 held that the 2013 Act is not applicable in Saint Lucia.

The respondent appealed to the Court of Appeal (Pereira CJ, Thom JA and Webster JA (Ag)) which, in its judgment of 16 January 2020, held that article 917A was not unconstitutional, that the 2013 Act was imported into Saint Lucia law and that there was no irreconcilable inconsistency between the provisions of 2013 Act and the provisions of article 917A except in section 8(3) which was inconsistent with article 2123 of the Civil Code. However, the inconsistency was reconciled by reference to the principle of mutatis mutandis as contained in article 917A.

The appellant applied for permission to appeal to the Judicial Committee of the Privy Council. By order dated 10 November 2020 the appellant was granted final leave to appeal pursuant to section 108(2)(a) of the Constitution of Saint Lucia, Chapter 1.01 of the Revised Laws of Saint Lucia, 2001.

On this appeal the Board has addressed the following principal issues:

The Civil Code of Saint Lucia combines elements of Quebec, French, English and indigenous law. The Custom of Paris was applied to Saint Lucia in 1681 and certain French Ordinances were also extended to the Island. There has, however, been substantial importation of English substantive law and procedure. The adoption of the Civil Code of Saint Lucia as law was first authorised by the Civil Code Ordinance, 1876. The preamble to that Civil Code Ordinance stated that the purposes of the Code were to remove uncertainty, causing serious inconvenience to the public, which had for a long time existed with respect to the law relating to many civil matters, and to consolidate and amend the civil law. The Code was “framed upon the principles of the Ancient Law of the Island, with such modifications as are conformable to the condition of modern society, or are required by existing local circumstances” (Sir Vincent Floissac, The Interpretation of the Civil Code of Saint Lucia, in Essays on the Civil Codes of Quebec and St. Lucia, eds Raymond Landry and Ernest Caparros, University of Ottawa Press; (1983) 14 RGD 409 at pp 410-412; Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (1966), pp 858-859.)

Despite its title, the Civil Code was clearly not intended to be an exhaustive statement of the law applicable in Saint Lucia to the exclusion of any other legal instruments. So much was common ground between the parties on this appeal.

Article 917A was first introduced into the Civil Code in 1956, when Saint Lucia was still a colony, by Act 34 of 1956. This amending Act effected major revisions of the Civil Code. It was enacted by the Governor, acting on the advice of the then Legislative Council of Saint Lucia pursuant to the power conferred by the Saint Lucia (Legislative Council) Order in Council, 1951. That Order established the Legislative Council, the members of which included members nominated by the Governor and members elected in accordance with the laws as to elections made under the Order. The Legislative Council's adoption of article 917A in 1956 was a part of a process of assimilation of the Civil Code to the law of England.

Article 917A(1) comprises two limbs. The first limb provides that with effect from the coming into operation of the article, the law of England for the time being relating to contracts, quasi-contracts and torts shall mutatis mutandis extend to Saint Lucia. The second limb provides that the provisions of articles 918 to 989 and 991 to 1132 of the Civil Code shall as far as practicable be construed in accordance with the change effected by the first limb. The second limb further provides that articles 918 to 989 and 991 to 1132 shall cease to be construed in accordance with the law of Lower Canada or the “Coutume de Paris”. Contrary to a submission on behalf of the appellant, it is clear that the second limb does not apply to articles 989A - 989S, which were introduced into the Civil Code at the same time by Act 34 of 1956 and of which articles 989F - 989S relate specifically to the law of defamation. The new articles are not sub-articles of the existing article 989 but deal with entirely separate matters. Article 917A(3) provides that the provisions of the Civil Code or other Saint Lucia statute prevail if there is a conflict with the law of England.

On behalf of the appellant, Mr Anthony Astaphan SC submits that article 917A is inconsistent with various provisions of the Constitution of Saint Lucia and is, therefore, invalid to the extent of that inconsistency. The current Constitution forms Schedule 1 to The Saint Lucia Constitution Order 1978 (SI 1978/1901) (“the Constitution Order”). It came into operation on 22 February 1979 upon Saint Lucia attaining “fully responsible status within the Commonwealth”. It replaced the earlier Saint Lucia Constitution Order 1967, in Schedule 2, and made transitional provision to which the Board refers below. Mr Hilaire relies in particular on the following provisions of the Constitution to support his assertion that article 917A is invalid: sections 40 and 47 which both fall within Part 2 (Legislation and procedure of Parliament) of Chapter III and section 120 which falls within Chapter X (Miscellaneous). Those sections provide as follows:

“40 POWER TO MAKE LAWS

Subject to the provisions of this Constitution Parliament may make laws for the peace, order and good government of Saint Lucia.

47 MODE OF EXERCISE OF LEGISLATIVE POWER

• (1) The power of Parliament to make laws shall be exercised by bills passed by the Senate and the House (or in the cases mentioned in sections 49 and 50 by the House) and assented to by the Governor General.

• (2) When a bill is submitted to the Governor General for assent in accordance with the provisions of this Constitution he or she shall signify that he or she assents.

• (3) When the Governor General assents to a bill that has been submitted to him or her in accordance with the provisions of this Constitution the bill shall become law and the Governor General shall thereupon cause it to be published in the Official Gazette as law.

• (4) No law made by Parliament shall come into operation until it has been published in the Official Gazette but Parliament may postpone the coming into operation of any such law and may make laws with retrospective effect.

120. SUPREME LAW

This Constitution is the supreme law of Saint Lucia and, subject to the provisions of section 41, if any other law...