Omai moves to throw out services of original Writ of Summons
by George Barclay
OMAI Gold Mines Limited, which is contemplating opposing the $100M compensation claim brought by Judith and Elizabeth David on behalf of 23,000 victims of the 1995 Cyanide spill, has asked the Court to find that the earlier services of the Writ and Amended Writ of Summons are irregular, null and void. A Writ to the effect filed in the Supreme Court Registry yesterday, was in direct response to an order for the services of a Writ of Summons and amended Writ of Summons, dated August 18, 1998 and May 24, 1999, when the plaintiffs were represented by Mrs Eva Rawana-Scott. Since then, the latter lawyer has reportedly been discharged by the plaintiffs, who recently got an order from the Acting Chief Justice Lennox Perry, discharging the earlier Order and granting a new Order for service to be effected out of the jurisdiction on Cambior Inc and other overseas defendants in Canada. The plaintiffs are Judith David and Elizabeth David. They are said to be suing in their capacity and on behalf of all persons residing, using, working, fishing or possessing property within the Riverain area of the Banks of either and or the Omai and or Essequibo River and its tributaries in Guyana ranging between the area from the Omai Gold Mines to the Atlantic Ocean (the Environmental Disaster Zone) including all people, approximately 23,000 persons drawing and using water from those rivers. The defendants are:- Cambior Inc; Golder Associates, Home Insurance, Knight & Piesold, Omai Gold Mines, Ltd. and Golden Star Resources, Limited. In the Omai Gold Mines summons filed in the Supreme Court Registry yesterday by Senior Counsel Eddie Luckhoo and Rex Mc Kay, S.C. the defendants made no mention of the latest action against them other than to say that appearance would be issued shortly. But, in a summons, which is returnable for September 7, they are asking for:- (a) An order that the service of the Writ of Summons dated August 18, 1998 be set aside. (b) An order that the Writ of Summons dated August 18, 1998 be struck out. (c) An order that the services of the Amended Writ of Summons dated May 24, 1999 be set aside. (d) An order that the Amended Writ of Summons dated May 24, 1999 be struck out. (e) An order that the amendment to the Writ of Summons filed on May 24, 1999, is irregular, null, void and of no legal effect. (f) An order that the joining or adding of defendants in the amended Writ of Summons dated May 24, 1999, is irregular null void and of no legal effect. (g) An order that the order of the Honorable Justice Legall dated July 2, 1999 was irregularly obtained and should be set aside and or discharged. (h) An order that the order dispensing with personal service and ordering substituted service out of the jurisdiction dated July 2, 1999 is irregular null and void and of no legal effect and be set aside and or discharged. In an affidavit in support of summons, Human Resources Manager of Omai Gold Mines Limited Mr Norman McLean said that the plaintiffs on May 14, 1999 had made an Ex-parte application by way of affidavit for substituted service of the amended Writ of summons on the First, Second, Third, Fourth and Sixth named defendants to the action and that the said application was refused by Justice Desmond Burch-Smith. According to McLean, a further application was made by the plaintiffs, which was granted by the Honorable Justice Legall on July 2, 1999. Giving reasons why the latter order cannot stand, Mr McLean explained:- (a) the copies of the Writs of Summons served on the Defendant Omai Gold Mines Limited were not certified by the Registrar as being a true copy of the original as is required by Order 3, Rule 10 of the Rules of the High Court. (b) That the purported Writ of Summons contains handwritten insertions and is not a true copy of the original; (c) That no leave of the Honorable Court was obtained to alter or amend the Writ of Summons or the endorsement thereof as is required by Order 26 Rule 1 and Order 26 Rule 6 of the Rules of the High Court. (d) The plaintiffs purported to add and or join defendants to the action without application to the Court or a Judge as is required by Order 14 Rule 14 and Order 14 Rule 15 of the Rules of the High Court. (e) The Plaintiff obtained an order of the High Court dated July, 1999, dispensing with personal service on the number one, two, three four and six named defendants and that service of the Writ of Summon thereof be effected on the said defendants by registered air mail post with acknowledgement of receipt without first obtaining leave to issue the said Writ of Summons for service out of the jurisdiction as is required by Order 3 Rule 11 of the Rules of the High Court. (f) The plaintiffs in their Ex Parte Application dated May 14, 1999 misrepresented to the Court in paragraph 2 of the affidavit of Judith David that a Writ of Summons was filed by the Plaintiffs against the Defendants 1 to 7 on August 18, 1998. (g) On July 2, 1999, the plaintiffs obtained an order for substituted service from the Honorable Justice Legall pursuant to an application filed on May 24, 1999, without disclosing on May 27, 1999, the Justice Burch-Smith had refused a similar application based on the same facts and that the plaintiffs had not appealed against such refusal. McLean's affidavit went on to point out that the document purporting to be an amended Writ of Summons dated May 24, 1999, was amended without leave of the Court and is irregular null void and or of no legal effect.
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