Annette Giscombe v Halvard Howe
| Jurisdiction | Jamaica |
| Judge | Edwards JA,Simmons JA,Dunbar-Green JA |
| Judgment Date | 05 November 2021 |
| Neutral Citation | JM 2021 CA 121 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2019CV00047 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 47
IN THE COURT OF APPEAL
The Hon Miss Justice Edwards JA
The Hon Miss Justice Simmons JA
The Hon Mrs Justice Dunbar-Green JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2019CV00047
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Oraine Nelson and Ms Claudia Forsythe instructed by Forsythe & Forsythe for the appellants
Mrs Suzette Burton-Campbell instructed by Burton-Campbell & Associates for the respondents
I have read the draft judgment that has been written by my learned sister, Dunbar — Green JA (AG) and I agree with the reasoning and conclusion. I wish to add nothing.
I too have read in draft the judgment of Dunbar-Green JA (AG) and agree with her reasoning and conclusion.
Dunbar-Green JA (AG)
The appellants, who were the claimants in the court below, are the widow and children of the late Egland Giscombe (‘the deceased’). They are seeking to reverse an order of Thomas J (Ag) (as she then was) (‘the learned judge’), which was made on 11 December 2018, setting aside an interlocutory judgment in default of acknowledgement of service and staying a final judgment on assessment of damages which had been entered in the appellants’ favour. The basis upon which the learned judge made the order was that the claim form and particulars of claim had not been served on the respondents (who were the defendants in the court below).
On 2 August 2004, a motor car belonging to Mr Norman Shand (‘the 2 nd respondent’) hit the deceased whilst he was riding his bicycle along the roadway in the vicinity of Shortwood Road and Central Avenue, in Saint Andrew. The motor car was being driven at the time by Mr Halvard Howe (‘the 1 st respondent’). The deceased sustained severe injuries and, unfortunately, on 19 July 2005, he succumbed to those injuries. The appellants alleged that the accident was caused by the negligence of the 1 st respondent who disobeyed a traffic light, drove through the intersection, and hit the deceased from his bicycle. It is also the appellants’ case that the 1 st respondent was driving as the agent or servant of the 2 nd respondent.
On 30 July 2010, the appellants commenced an action in the Supreme Court against the respondents to recover damages under the Fatal Accidents and the Law Reform (Miscellaneous Provisions) Acts. On 23 August 2010, a notice of proceedings was served on Advantage General Insurance Company Limited (‘the insurance company’) which was the insurer of the motor car.
In an affidavit filed 5 March 2013, Mr Junior Rowe, the process server, deposed that he was unsuccessful in his attempts to serve the respondents with the claim form and particulars of claim. The process server stated that when he went to Apartment 73, Campview Apartments, Saint Andrew, neighbours of the 1 st respondent informed him that he had removed from that address and they had no knowledge of his whereabouts. After unsuccessful attempts to locate the 2 nd respondent, it was discovered that the address on the claim form was incorrect. According to Mr Rowe, the correct address for the 2 nd respondent was ascertained by the appellants' then attorney-at-law, Sylvester C Morris, to be 1035 Flintstone Close, Eltham Park, Saint Catherine. However, he had been unable to effect personal service after several visits to that address and was reliably informed that the 2 nd respondent was a taxi operator who left early in the mornings and returned late at nights “whenever he [was] there”. Mr Rowe's last attempt to serve the 2 nd respondent was on 4 December 2012.
By affidavit, filed on 20 September 2013, Mr Sylvester C Morris deposed that he had come to ascertain the 2 nd respondent's new address in Saint Catherine “after intensive search including help from the police and the Collector of Taxes”.
On 7 November 2013, Master Lindo (as she then was) heard an ex parte application for the appellants to dispense with personal service and ordered that the appellants were at liberty to effect service of the claim form and particulars of claim by registered post at the respondents’ “last known address”. No address was indicated in the order for either respondent.
By affidavits filed on 22 May 2014, Bernice Scott, secretary to Sylvester C Morris, deposed that she posted the claim form, notice to the defendant, defence, prescribed notes for the defendant and acknowledgment of service of claim form and particulars of claim (‘the originating documents’) by registered mail in the forenoon of 24 April 2014. The address for the 1 st respondent was stated as Apartment 73, Campview Apartments, Kingston 5. No address was indicated in the body of the affidavit for the 2 nd respondent. However, the exhibited certificate of posting of the registered article (‘the registered slip’) indicated a registration number —004216, a note that the fee had been paid, the date stamp of the office (24 April 2014) and an address which was stated as “D35 Flintstone Close” Eltham Park PO, Saint Catherine. This was different from 1035 Flintstone Close which the process server, Junior Rowe, had deposed, in his affidavit, as the ascertained and correct address for the 2 nd respondent.
On 24 and 25 April 2014, notices of the registered mail were directed to the respective addresses, by the post office.
By virtue of rule 6.6 of the Civil Procedure Rules, 2002 (‘CPR’), the claim form and particulars of claim would have been deemed served 21 days after the date indicated on the post office receipt /registered slip.
On 29 May and 14 June 2014, the respective registered letters/mail, containing the originating documents, were returned by the Post and Telecommunications Department (‘the postal authority’), to Sylvester C Morris, as they had been unclaimed.
On 24 September 2014, Sylvester C Morris obtained an order from the court for his name to be removed from the record as attorney-at-law for the appellants. He was replaced by Forsythe & Forsythe, as evidenced by the notice of change of attorney dated 26 January 2015. 19 20 21
On 26 January 2015, the appellants sought and obtained a default judgment. The judgment in default was entered by a registrar of the Supreme Court on the basis that no acknowledgement of service and defence had been filed by the respondents within the time specified by the CPR. In the record of appeal is an unsigned judgment order which indicates that damages were assessed on 28 March 2016, and a final judgment entered in favour of the appellants. The date of the assessment of damages seems to be an error as it could not have preceded the filing of the affidavits by Karen Cross in 2017, in support of the assessment of damages. These affidavits will be referred to in greater detail below.
It is noteworthy that the application for default judgment indicated that the 2 nd respondent was served “at his lawful residence at Apt. 73 Campview Apartments”. This was the same address at which the 1 st respondent was purportedly served and was different from the address of D35 Flintstone Close indicated on the registered slip exhibited by Bernice Scott and 1035 Flintstone Close, the “ascertained” address of the 2 nd respondent. There was no indication that the registrar who entered the judgment in default of acknowledgment of service was alerted to the return of the claim form and particulars of claim, unclaimed. There was also no evidence whether the new attorneys — at-law, Forsythe & Forsythe, had known that those documents had been returned to the former attorney-at-law approximately seven months prior to the request for judgment.
The evidence reveals that all relevant documents were posted to the 2 nd respondent at D35 Flintstone Close and not 1035 Flintstone Close. On 25 November 2016 and 10 March 2017, affidavits were filed by Karen Cross in which she averred that she had posted, among other documents, witness statements and notices of adjourned assessment of damages hearings to the 2 nd respondent at D35 Flintstone Close. In another affidavit which was filed on 7 December 2018, Nelton Forsythe, attorney-at-law on record for the appellants, deposed that on 13 January 2017, a notice of adjourned assessment of damages hearing was sent by registered post to the 2 nd respondent “at his last known address of D35 Flintstone Close…”. He also stated that the latter notice was returned to his office with the envelope endorsed: “Not Collected”.
On 27 September 2017, the insurance company filed a notice of application on behalf of the 2 nd respondent, pursuant to rule 13.2 of the CPR. The application was to set aside the default judgment entered by the registrar and all proceedings flowing therefrom, and staying the final judgment. The grounds were that the 2 nd respondent was never served with the claim form or particulars of claim. The insurance company further sought and obtained an order, on 5 July 2018, to intervene in the claim on behalf of the 2 nd respondent.
The notice of application to set aside default judgment reads, in part:
“The Applicant, Norman Shand of D35 Flintstone Close, Eltham Park, Spanish Town in the parish of Saint Catherine seeks the following orders:
(1) That there be a stay of execution of the final judgment entered herein on the 28 th day of March 2017 until the hearing of the application herein.
(2) That the judgment entered herein and recorded at judgment Binder 768 Folio 401 and all proceedings flowing therefrom be set aside.”
The application was supported by an affidavit of Vanessa Peck, legal officer of the insurance...
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