Emile Elias and Company Limited v The Attorney General of Trinidad and Tobago (Trinidad and Tobago)

Under section 7, an effective written acknowledgment must be made to the creditor or the creditor’s agent and must amount to an express or implied promise to pay. Linked documents must be construed together and in their surrounding context. An unqualified summary listing a debt cannot be separated from an accompanying document reserving the debtor’s position. A reservation that the debtor is unsure whether it can exercise a liquidated damages clause negatives any implied promise to pay. The principles reflect the law of Trinidad and Tobago as assimilated to the law of England and Wales before 1939.

The appellant building contractor had unpaid sums arising from government construction works. By the time it issued proceedings, the sums were statute-barred unless two linked documents signed by the Permanent Secretary on 27 November 1987 amounted to an acknowledgment under section 7 of the Limitation of Personal Actions Ordinance.

Bereaux J rejected the Company’s claim, while rejecting the Attorney-General’s counterclaim for liquidated damages. The Court of Appeal considered whether the documents admitted the debt and whether they contained an express or implied promise to pay. The appeal to the Privy Council raised, in particular, whether the documents were made to the creditor or its agent and whether their qualification negatived any implied promise to pay.

The Board, in the judgment delivered by Lord Walker, dismissed the appeal.

1. Applicable law. Section 7 of the Ordinance reflected the law of England and Wales before the Limitation Act 1939. Under that law, an effective acknowledgment required both communication to the creditor or the creditor’s agent and an express or implied promise to pay. The Board relied on Spencer v Hemmerde [1922] 2 AC 507 and the authoritative Trinidad and Tobago decision in Re Max Reimer (1931) 6 JSCTT 252.
2. Creditor or agent. The two documents had to be read in their factual and confidential setting. The information was supplied to Mr Elias in his capacity as a member of the Cabinet-appointed committee and representative of the contractors’ association. It was not supplied to him as the Company’s agent. The Board therefore upheld the judge’s distinction of Jones v Bellgrove Properties Limited [1949] 2 KB 700. This was an independent reason why the documents were not an effective acknowledgment.
3. Promise to pay. The summary letter and Appendix A were linked and had to be read together. Appendix A recorded that the employer was unsure whether it could exercise the liquidated damages clause. That reservation postponed the issue for further consideration and negatived any implied promise to pay. The Court of Appeal was correct on this point, applying the approach illustrated by Re River Steamer Company (1871) 6 LR Ch App 822.
4. The Board did not need to decide the more debatable question whether the Permanent Secretary had authority to give a written acknowledgment without Cabinet approval. The appeal was dismissed with costs, subject to the Company making written submissions on costs within 14 days.

1. Privy Council: on appeal from the Court of Appeal of the Republic of Trinidad and Tobago, dismissed the appeal and ordered costs subject to written submissions.
2. Court of Appeal of the Republic of Trinidad and Tobago: considered the effect of the qualification in Appendix A and concluded that it negatived any implied promise to pay. Its citation is not stated in the judgment.
3. Bereaux J: at trial, rejected the Company’s claim, including the acknowledgment issue, and rejected the Attorney-General’s counterclaim for liquidated damages.