Andrew Fletcher v Devine Destiny Company Ltd
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Foster-Pusey JA,Dunbar-Green JA,Mcdonald-Bishop JA |
| Judgment Date | 08 October 2021 |
| Neutral Citation | JM 2021 CA 104 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2020CV00047 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 42
IN THE COURT OF APPEAL
The Hon Mrs Justice Mcdonald-Bishop JA
The Hon Mrs Justice Foster-Pusey JA
The Hon Mrs Justice Dunbar-Green JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2020CV00047
Written submissions filed by Nunes, Scholefield, Deleon & Co for the appellant
PROCEDURAL APPEAL
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read, in draft, the judgment of my sister Foster-Pusey JA and I agree with her reasoning and conclusion and have nothing useful to add.
This is a procedural appeal brought by the appellant, Andrew Fletcher, challenging the decision of Master Mott Tulloch-Reid (as she was then) (‘the Master’) who, on 18 February 2020, set aside a default judgment entered against the respondent on the basis that the claim form, particulars of claim, notes to the defendant, prescribed notes, acknowledgment of service and form of defence (‘originating documents’) had not been served on the respondent.
The respondent is a limited liability company, with its registered office located at Summerset Road, West End, Negril in the parish of Westmoreland. It operates the Devine Destiny Hotel, situated at the same address.
Ms Margaret Fletcher (now deceased) was a guest at the respondent's hotel, and claimed that, on or about 26 September 2003, she fell while descending a flight of stairs in the hotel's reception area. She initiated proceedings in the Supreme Court for damages, alleging that the accident occurred due to the respondent's negligence, breach of contract or breach of the Occupiers' Liability Act. The appellant, Ms Fletcher's son, acts in a representative capacity for her estate.
The appellant, in his grounds of appeal, has raised a number of issues arising from the decision of the Master. However, the central issue to be determined in this appeal is whether the originating documents, which were sent to the respondent by registered post addressed to its registered office, were served on the respondent.
An outline of the history of the matter is necessary so that the lengthy time over which this matter has been pending can be appreciated.
On 18 December 2008, Ms Fletcher filed a claim against the respondent in the Supreme Court. Ms Fletcher, a resident of the United States of America on vacation in Jamaica, averred that, while staying as a paying guest at the respondent's hotel, on or about 26 September 2003, she sustained injuries while descending stairs in the reception area of the respondent's hotel. Consequently, she sought damages for injuries sustained, losses suffered and expenses incurred.
In light of the issues which arise for determination, it is important to examine the steps which the appellant, through his attorneys-at-law, took to serve the originating documents on the respondent. The appellant's attorneys-at-law, having conducted a search at the Companies Office of Jamaica, ascertained the address of the respondent's registered office, which was situated at Summerset Road, West End, Negril in the parish of Westmoreland. On 6 January 2009, by letter dated 31 December 2008, the appellant's attorneys-at-law, in an envelope bearing the firm's name and address on the outside, sent the claim form, particulars of claim and supporting documents by registered mail #1579 directed to the address of the respondent's registered office.
The letter was not returned to the appellant's attorneys-at-law. The respondent did not file an acknowledgment of service or defence. On 8 July 2009, the appellant's attorneys-at-law requested judgment in default of acknowledgment of service and defence. At the time when the appellant's attorneys-at-law requested judgment, they were not aware that the respondent had not collected the letter, or that the Negril Post Office had, on 15 April 2009, sent the letter to the Return Letter Branch on the basis that the letter did not have a return address. The letter has never been returned to the appellant's attorneys-at-law.
Although a copy of the default judgment does not appear in the record of appeal, there is no dispute that the default judgment was granted. On 10 March 2010, a sealed copy of the default judgment was sent to the respondent under cover of letter dated 9 March 2010, and by letter dated 1 April 2010, the appellant served the respondent with notice of the assessment of damages to be held on 1 June 2010 (see affidavit of Catherine Minto filed on 20 February 2020 in which a history of the matter is provided).
The assessment of damages hearing scheduled for 1 June 2010 was adjourned to 27 September 2010, because Ms Fletcher heeded warnings issued by the British Government to its citizens that they should avoid travelling to Jamaica due to the civil unrest in downtown Kingston arising from the Tivoli Uprising. The respondent was also absent from the hearing. On 11 June 2010, a sealed copy of the notice of adjourned hearing was sent to the respondent by mail.
On 27 September 2010, Jennifer Reid appeared for the respondent, and the court was advised that the respondent's attorney-at-law was not able to attend the hearing. The matter was again adjourned to 29 November 2010.
On 26 November 2010, the respondent sent to the appellant by fax, an unfiled notice of application for court orders seeking to set aside the default judgment. The application was supported by an affidavit sworn on 26 November 2010 by Clifton Lloyd Reid and Jennifer Reid, two of the respondent's directors and shareholders. The content of the application and the affidavit in support will be outlined further on in this judgment.
The matter came up again for the assessment of damages hearing on 29 November 2010, however, it did not go on. It was adjourned to 20 May 2011 at which time it was further adjourned, pending the fixture and determination of the respondent's application to set aside the default judgment. On 30 September 2011, the application to set aside the default judgment came up for hearing before Rattray J but was adjourned to 28 March 2012.
As a result of Ms Fletcher's death on 3 January 2012, the proceedings were automatically stayed. On 29 May 2012, the appellant obtained a grant of probate in the United Kingdom in respect of his mother's estate. He then made an application in the Supreme Court to be appointed as administrator ad litem of his mother's estate for the purposes of carrying on the proceedings, as well as to be substituted as claimant in the proceedings. On 26 March 2013, Batts J granted the application. On 21 June 2013, the appellant filed an amended claim form and particulars of claim to reflect his appointment as administrator ad litem and substitution as claimant in the proceedings. He served the papers on the respondent, who, in response, on 10 July 2013, filed an acknowledgment of service.
By letter dated 7 January 2014, counsel for the appellant reminded the respondent's attorneys-at-law that judgment had already been entered against their client, and steps would have to be taken to set it aside.
The relisted assessment of damages hearing was scheduled to be heard on 12 May 2016. On 8 April 2016, the respondent filed a notice of application to relist the application to set aside the judgment entered in default and to stay assessment of damages. At the assessment of damages hearing, counsel for the respondent applied for an adjournment. The assessment judge, Lindo J, refused counsel's request, and the assessment of damages hearing proceeded. Counsel for the respondent actively participated in the hearing by cross-examining the appellant and, on 19 May 2016, filed written submissions addressing the quantum of damages. At the end of the hearing, the assessment judge reserved her decision.
By letter dated 8 May 2019, the appellant, in a letter to the Registrar of the Supreme Court, referred to the assessment of damages, which had been conducted by Lindo J on 12 May 2016, and asked the Registrar to remind the judge that the judgment was still outstanding.
On 14 August 2019, a notice of adjourned hearing issued by the Registrar indicated that the application to set aside default judgment that was not heard on 12 May 2016 (the day of the assessment of damages hearing), due to the unavailability of a judge, was set for hearing on 30 October 2019. However, it was not until 9 January 2020 that the application was heard.
At this point, I will highlight the essential features of the notice of application and the affidavit filed to support it. It is important to note the basis on which the application was made, and the contents of the affidavit in support. The sole ground on which the respondent challenged the default judgment in the notice of application was that:
“1) In keeping with Rule 13.2 of the Civil Procedure Rules 2002 [the respondent] were [sic] never served or received any notice of the proceedings that were filed by [the appellant] as required by rule 12.4 of the Civil Procedure Rules —2002.”
In the affidavit supporting the application, Clifton Lloyd Reid and Jennifer Reid deposed that the matter was never brought to their attention until two weeks before 27 September 2010, when they received a parcel delivered by courier service, containing a notice for an assessment of damages hearing. They made checks at the post office in Negril to ascertain why they had not received the documents which the appellant said its attorneys-at-law had sent by registered mail. They exhibited two letters (exhibits “DD1” and “DD2”), which they received from Mrs Veronica James-Brown, acting post mistress of the Negril Post Office. In letter dated 24 November 2010,...
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