Alicia Hughes v Paj Imports Ltd

 
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[2019] JMSC Civ 93

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Hart-Hines, M.

CLAIM NO. 2012HCV05796

Between:
Alicia Hughes
Claimant
and
Paj Imports Limited
Defendant

Ms. Kacey-Ann Nelson for the Applicant/Defendant.

Mr. Kevin Page instructed by Page and Haisley for the Respondent/Claimant.

Civil procedure — Application to set aside default judgment pursuant to rule 13.2 of the Civil Procedure Rules — Irregularly obtained default judgment — Application to set aside default judgment pursuant to rule 13.3 — Tests to be applied.

Civil procedure — Whether the court's power to dispense with the service of a document in rule 6.8 applies to the claim form.

Natalie Hart-Hines, Master

1

The matter for the consideration of the court is an application by the defendant to have a judgment in default set aside on the basis that it was irregularly obtained in that the Defence form (Form 5) was not served along with the claim form and particulars of claim as required in rule 8.16(1) of the Civil Procedure Rules (hereinafter “the CPR”). The application is supported by affidavits sworn to by one of the directors of the defendant company, Mr. Michael Powell. In opposition to the application, the respondent's process server, Mr. Mohan Escoffery, and counsel Mr. Kevin Page also swore affidavits.

2

The applicant's Notice of Application for Court Orders and Amended Notice of Application for Court Orders, filed on May 21, 2018 and October 8, 2018 respectively, state that the following orders are sought:

  • 1. That the court makes a declaration declining to exercise its jurisdiction to try this claim;

  • 2. That the claimant's claim form and particulars of claim filed on October 26, 2012 be struck out;

  • 3. In the alternative, the default judgment dated the 12th day of February 2016 and entered in Binder 769 Folio 235 be set aside;

  • 4. The cost of this application to the applicant;

  • 5. Such further and/or other orders as this Honourable Court deems fit.

3

The grounds indicated in the Amended Notice of Application are that:

  • 1. “Rule 8.16(1)(b) mandates the serving of a form of defence (form 5) along with the claim form and particulars of claim and there is no credible evidence that this was done;

  • 2. Pursuant to Part 13.2(1)(a) of the Civil Procedure Rules form of defence (form 5) was served on the defendant making service irregular;

  • 3. Pursuant to Part 13.2(1)(b) [sic] of the Civil Procedure Rules the defendant has a real prospect of successfully defending the claim.”

4

During the hearing of the application, clarification was sought by the court and counsel Ms. Nelson confirmed that the orders indicated at paragraphs 1 and 2 of the amended application were not in fact sought. As the defendant had not filed an Acknowledgement of Service within 14 days of the service of the claim form, and had not filed an application disputing jurisdiction within the period for filing a defence, as required under rules 9.6(2) and 9.6(3), the application was pursuant to rules 13.2 and 13.3, to have the default judgment set aside.

BACKGROUND AND CHRONOLOGY
5

By way of a claim form filed on October 26, 2012, the respondent claimed against the applicant, damages for negligence and/or breach of the provisions of the Occupiers' Liability Act (hereinafter “the OLA”) as a result of an incident on July 19, 2011, when she visited the applicant's place of business to purchase car parts and a van seat fell on her head, causing her to sustain personal injury and to suffer loss and damage. The history of events after October 26, 2012 is quite protracted and I will therefore only indicate some of the salient events:

  • 1. On July 19, 2011, an accident occurred at the applicant's business premises and registered address located at 76 Constant Spring Road, Kingston 10, St. Andrew.

  • 2. On October 26, 2012 the claim form and particulars of claim were filed along with a Notice to Defendant, the Prescribed Notes for Defendants (Form 1A) and Acknowledgment of Service (Form 3). The forms for the Defence (Form 5) and Application to Pay by Instalments (Form 6) were not filed.

  • 3. On October 30, 2012 at 10:53am service of the claim form and particulars of claim and some accompanying documents were said to be effected.

  • 4. Eight (8) months later, on July 17, 2013 an Affidavit of Service was sworn to by Mohan Escoffery, process server, and was filed. In his Affidavit Mr. Escoffery stated that on October 30, 2012 at about 10:53am, he served claim form and particulars of claim along with the form of Acknowledgment of Service, the form of Defence and the Prescribed Notes for Defendants on Mr. Powell on behalf of the defendant company at its registered address.

  • 5. On July 18, 2013 a Notice of Application for Court orders was filed, seeking permission to enter judgment in default against the defendant and reliance was placed on Mr. Escoffery's affidavit of service filed on July 17, 2013.

  • 6. Eight (8) months later, on March 4, 2014 the application to enter judgment in default was listed to be heard. However, the permission of a Court was not required to enter judgment in default, and the proper procedure was under rules 12.7, 12.10(1)(b) and 16.2(1). In the circumstances, the judge before whom the application was listed directed counsel to file a Request for Default Judgment.

  • 7. On March 7, 2014, two copies of a Request for Default Judgment were filed along with a draft Judgment in Default order and a fresh Affidavit of service sworn to by Mr. Escoffery on March 6, 2014. In error, the signature of the claimant's attorney appeared on the draft Judgment in Default. The error was not discovered for nearly two (2) years by Registry staff.

  • 8. On February 3, 2016 a requisition was issued (but dispatched on February 5, 2016) by the Registry to the claimant's attorneys for the error to be corrected.

  • 9. On February 12, 2016 two fresh copies of a Request for Default Judgment were filed, and a draft Judgment in Default order and a fresh Affidavit of service sworn by Mr. Escoffery on February 12, 2016. One of the Requests for Default Judgment stated that the claimant requested entry of judgment against the defendant in default of Acknowledgment of Service and a Defence being filed. However, the other stated that the request was made in default of a Defence being filed.

  • 10. On April 22, 2016, a requisition was issued that the claimant's attorneys should indicate whether or not judgment was being sought in default of an Acknowledgment of Service or of a Defence being filed. It does not appear that any further Requests were filed. Instead, judgment in default was later entered.

  • 11. On July 19, 2017 the claim became statute barred.

  • 12. On July 27, 2017, the Judgment in Default was perfected by the Registrar and entered in Binder 769 Folio 235 with effect from February 12, 2016.

  • 13. Seven (7) months later, on March 1, 2018 the Notice of Assessment of Damages was issued by the Registrar of the Supreme Court indicating that the Assessment of Damages hearing was scheduled for May 28, 2018.

  • 14. On May 4, 2018 and May 10, 2018 documents were filed on behalf of the claimant in respect of the Assessment of Damages hearing.

  • 15. On May 21, 2018 a Notice of Application for Court Orders was filed on behalf of the defendant seeking an order setting aside the default judgment. The application was supported by the Affidavit of Michael Powell filed that same day.

  • 16. On May 28, 2018 the Assessment of Damages hearing was adjourned as a result of the application to set aside default judgment.

  • 17. On October 8, 2018 an Amended Notice of Application for Court Orders was filed. The amendment indicated that the application was made pursuant to rule 13.2(1)(a), as the service of the claim form was irregular. A Supplemental Affidavit of Michael Powell was filed on October 8, 2018 exhibiting a draft defence.

  • 18. On November 21, 2018, the applicant filed an Acknowledgment of Service indicating that the claim form was received “on or about June 11, 2013”. A Further Supplemental Affidavit of Michael Powell was filed, indicating that liability is denied and that the defendant had adequate staff and safety measures in place, and alleging that the claimant's injuries were caused by her own negligence.

THE HEARING OF THE APPLICATION
6

As there was a dispute between the affidavit evidence of Mr. Michael Powell and that of the process server, Mr. Mohan Escoffery, it was necessary to have both persons give viva voce evidence and have their accounts tested in crossexamination. Mr. Escoffery gave evidence on February 7, 2019 and Mr. Powell gave evidence on March 14, 2019. In addition to the written submissions which were filed prior to the commencement of the hearing of the evidence, counsel were afforded an opportunity on April 3, 2019 to make further oral submissions on the evidence heard. Upon the invitation of the court, counsel also made submissions on whether rule 6.8(1) was applicable to the claim form and what prejudice each party might suffer if an order was made...

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