Abrikian, Harry, Kolleen Russell & Athol Smith v Arthur Wright & Vera Wright

• Jurisdiction: Jamaica
• Judge: Mangatal, J. (Ag.).
• Judgment Date: 29 July 2003
• Judgment citation (vLex): [2003] 7 JJC 2901
• Court: Supreme Court (Jamaica)
• Date: 29 July 2003
• Docket Number: SUIT NO. CL, 1994/A-083

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. CL, 1994/A-083

BETWEEN

HARRY ABRIKIAN

1 ^st PLAINTIFF

AND

KOLLEEN RUSSELL

2 ^nd PLAINTIFF

AND

ATHOL SMITH

3 ^rd PLAINTIFF

AND

ARTHUR WRIGHT

1 ^st DEFENDANT

AND

VERA WRIGHT

2 ^nd DEFENDANT

^st

CIVIL PROCEDURE - Interlocutory judgment - Whether judgment entered irregularly - Judicature (Civil Procedure Code) Law, Rule 13.7 - Civil Procedure Rules 2002

Mangatal, J. (Ag.)

1 1. This application by the 1 ^st Defendant is an application to set aside an interlocutory judgment entered herein on the 12 ^th June 2001 on the ground that it was irregularly entered. Alternatively, the application is to set aside the judgment if regularly entered, and if it is thought that the Judicature (Civil Procedure Code) Act ( C.P.C) applies, on the ground that the First Defendant has an arguable Defence.

2 Alternatively, if it is found that it is the Civil Procedure Rules 2002 (C.P.R.) that apply, I am urged to set aside the judgment on the basis that the matters set out in C.P.R. 13.2, the most crucial of which is that the Defendant has a real prospect of successfully defending the action, have been satisfied.

3 2. Mr. Piper for the 1 ^st Defendant has argued firstly that the Judgment was irregularly entered. His submission in essence is that the application for judgment could only have been made pursuant to S. 247 of the C.P.C. That section provides:-

"If the plaintiff's claim is, as against any defendant, for unliquidated damages only , (Mr. Piper's emphasis) and that defendant does not, within the time allowed for that purpose, deliver a defence, the plaintiff may enter interlocutory judgment against him for damages to be assessed and costs, and proceed with the action against the other defendants if any."

4 3. Mr. Piper went on to submit that the Statement of Claim in its amended form "Further Amended Statement of Claim" filed 27 ^th May 1997 claims specific performance or, as an alternative, damages for breach of contract and other relief. It is therefore not a case in which the Plaintiff's case is for damages only , as is provided by S. 247 of the C.P.C. He asks that I contrast S. 442 of the C.P.C which provides that judgment may be obtained by motion for judgment where no other provision is made for the entry judgment. Reliance is placed on the case of Arthur Badalor v. Mr. And Mrs. Neville Bryan (1989) 26 JLR 372 as authority for the proposition that where the judgment is irregularly entered the Court ought properly to set aside the judgment without more, with costs of the Application being awarded to the Applicant.

5 4. Mr. Piper has also submitted that it is the C.P.C which applies to this application and not the C.P.R. 2002.

6 5. Mrs. Samuels Brown on behalf of the Plaintiffs argued firstly, that it is the C.P.R 2002 which applies to this application and not the C.P.C.

7 6. Mrs. Samuels Brown also argued that the judgment was regularly entered and she advanced several bases for this submission. What I understood to be the gravamen of Mrs. Samuels-Brown's submission is that the Plaintiff is not imprisoned by the pleadings as originally filed and, that although the Plaintiff may have originally sued for specific performance or damages, the Plaintiff has a right to elect to seek unliquidated damages only against the Defendant.

8 7. Heavy reliance was placed on the case of Morley London Development Limited v Rightside Properties Limited (1973) 117 S J 876. In that case the Plaintiff claimed, inter alia, specific performance of a contract for the sale of certain property, damages and necessary accounts and inquiries. Appearance was entered for the Defendants, but no defence was filed. The Plaintiffs issued a Summons under R.S.C Ord 86, r.1, seeking judgment for damages to be assessed and for an inquiry as to damages and for an account of all sums received by the defendant. The accompanying draft minutes of order similarly asked for an account and inquiry, and a supporting affidavit sworn by a legal executive concluded:

"As my clients cannot now get Title from the defendants they now elect to take their remedy against the defendants in damages."

9 Before the master, the Defendants sought an adjournment of the Summons to a judge. Since that would involve some delay, the Plaintiffs decided to withdraw the Summons and having indicated clearly to the Defendants that they were going to do so, entered judgment in default of defence the same day pursuant to Order 19, r. 3. The judgment read:

"No defence having been served ... and the plaintiffs abandoning their claim to the other relief sought on the Statement of Claim, it is ... adjudged that the defendant do pay the plaintiff damages to be assessed."

10 The Defendants took out a Summons to set aside the judgment on the basis that it had been irregularly obtained, alternatively that it ought as a matter of discretion to be set aside. The Defendants contended that order 19, r. 3, (the equivalent of S.247. of the C.P.C.) applied only if the plaintiffs Claim was solely for unliquidated damages, however, they argued, that on the date of entry of the judgment none of the Plaintiff's claims had been effectively withdrawn as required by Order 21, r. 2 (1) (the equivalent of S. 240 of the C.P.C.) and that accordingly the case fell within 0. 19, r. 7. In the alternative they argued that if the claim for specific performance had been effectively withdrawn the claim for equitable relief for an account had still subsisted.

11 In the Court of Appeal Lord Edmund Davies is reported as saying "that, apart from the special provisions of Lord Cairns' Act [Chancery Amendment Act 1858], specific performance was always an alternative to a claim for damages, and an election to seek damages only must be understood to involve and constitute a withdrawal of the prayer for specific performance 'Claims' in order 21, r. 2 (1), was used to indicate a course of action, enabling a plaintiff who had asserted several causes of action to withdraw part of his claim without leave on notice. It had no reference to the type of relief sought and no bearing on the abandonment by the plaintiff of any form of relief which he originally sought. A plaintiff was free to elect what relief he wanted to pursue, the only requirement being that at the time when the matter came to court he should make clear what remedy he was seeking. He was under no duty to give prior notice of his election.

12 The Plaintiffs having made clear to the Court and to the defendants their election to abandon their claim to specific performance and to seek unliquidated damages, no more had been required of them. The judge had been right in holding that the prayer for an account had been ancillary only to that for specific performance and had been abandoned with it. As to discretion, he had reached the right result."

13 8. In the case of Moncure v. Delisser Supreme Court Civil App. No. 31 of 1997, the Court was concerned with a default judgment entered in relation to an application for recovery of possession. In allowing the Appeal in that case, our Court of Appeal accepted Counsel for the Appellant's argument that the final judgment in default was irregular because there had been no determination as required by S.25 of the Rent Restriction Act that it was reasonable to give judgment for recovery of possession.

14 9. At p.5 of the judgment, President of the Court of Appeal Justice Rattray concluded that when the Registrar is entering a default judgment, this is not the carrying out of an adjudicatory function; it is a purely administrative act. At page 6, Justice Rattray stated:

"The need for the adjudication before the making of the order for possession is manifest, and the legislative purpose is likewise transparent - the protection of the tenant in these circumstances."

15 10. It is trite law that specific performance is an equitable remedy of a discretionary nature and there are said to be a number of "bars" to the grant of relief of this nature. Hence, before a judgment for specific performance can be obtained, the Court has to exercise adjudicatory functions in determining whether and how to exercise its discretion. On the authority of Moncure v Delisser therefore, it seems clear that had the default judgment herein been for the remedy of specific performance it would undoubtedly have been irregularly entered.

16 11. However, in the instant case the default judgment is for solely damages. The exact wording of the judgment is as follows:-

"The first Defendant having entered an Appearance but not filing a Defence herein, IT IS THIS DAY ADJUDGED that the Plaintiffs do recover from the first Defendant damages to be assessed with interest thereon and costs to be taxed if not agreed."

17 This is the Judgment that was entered by the Registrar, which, as stated in Moncure v. Delisser, was strictly an administrative act.

18 12. The question is therefore whether the Plaintiffs were entitled to proceed as they did under S. 247 of the C.P.C. In...