Anthony Wilson v Edward McCarthy
| Jurisdiction | Jamaica |
| Judge | V. Smith, J |
| Judgment Date | 30 October 2020 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2015 HCV 06133 |
| Date | 30 October 2020 |
[2020] JSMC Civ. 213
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
V. Smith, J (Ag.)
CLAIM NO. 2015 HCV 06133
Ms. Allison Lawrence, Attorney-at-Law for the Respondent/Claimant
Mr. Lemar Neale instructed by NEA| LEX, Attorneys-at-Law for the Applicant/Defendant.
Civil Procedure — Application to set aside judgment in default of acknowledgment of service — Effect of failure to file form of defence (form 5) and form of application to pay by instalments (form 6) — Whether defendant's conduct of filing an acknowledgment of service after being served with default judgment amounts to a waiver of irregularity of service of the claim — Whether default judgment was irregularly obtained.
This is an application to set aside a judgment in default of acknowledgment of service. It arises from a claim in respect of a motor vehicle accident. On the 23 rd day of December, 2015, the respondent/claimant herein filed a claim form and particulars of claim seeking damages from the applicant/defendant as a result of the accident which took place on the 26 th day of October, 2012 along Port Henderson Road in the parish of St Catherine.
The services of Brenda Singleton, a Process Server, were engaged for the purposes of serving the claim form and particulars of claim on the applicant/defendant. By way of her affidavit of service, Ms. Singleton indicates that this was done on the 16 th day of January, 2016 by effecting personal service on Edward McCarthy, the applicant/defendant herein, at Lot 106 Chesterfield Road, Bridgeport, St Catherine. Though Mr. McCarthy indicates that this address is a family home and he ceased living there as of 2004, he accepts that it is his registered address and the address at which he receives his mail and other correspondence.
The applicant/defendant did not file an acknowledgment of service nor was a defence filed in relation to the claim. Judgment in default of acknowledgment of service was entered on the 9 th day of July, 2018. Once again, the services of Brenda Singleton were engaged and her affidavit evidence is that she served the judgment in default with an accompanying letter on Hubert McCarthy, the brother of Edward McCarthy. The applicant/defendant agrees that these documents were brought to his attention and indicates that he made arrangements for them to be delivered to his attorney-at-law from whom he sought legal advice. By way of a notice of application for court orders filed on the 9 th day of April, 2019, the applicant/defendant is now seeking, inter alia, to have the default judgment set aside.
The applicant/defendant disputes that he was ever served with the claim form and particulars of claim or any documents in relation to the suit and indicates that he was only made aware of the matter before the court as a result of the judgment in default that was brought to his attention. He instructed his attorney to make checks at the Supreme Court to ascertain what was filed. Having done so, he was advised by his attorney that the claim form did not have a form of defence (form 5) nor a form of application to pay by instalments (form 6) attached as is required by rule 8.16 of the Civil Procedure Rules, 2002 (CPR).
This being a claim for money and the applicant/defendant being an individual, the form of application to pay by instalments ought to have accompanied the claim form when it was being served. There is no dispute between the parties that the said form was not served on the applicant/defendant and as such the respondent/claimant would be in breach of rule 8.16(1)(e). The applicant/defendant also contends that based on what was filed by the respondent/claimant, form 5 was not included in the documents that were purportedly served. The respondent/claimant maintains that the form of defence was included in the documents that were served. In the affidavit of service sworn to by Brenda Singleton and filed on the 19 th day of February, 2016, she speaks to the claim form and particulars of claim but gives no specifics of any accompanying documents.
A check of the court's records has revealed that the claim form and particulars of claim filed by the respondent/claimant on the 23 rd day of December, 2015 were only accompanied by a form of acknowledgement of service and the prescribed notes for defendants pursuant to rules 8.16(1)(a) and 8.16(1)(c).
The applicant's/defendant's assertion that he was never served with the claim form and particulars of claim is keenly contested by the respondent/claimant. The applicant/defendant in his notice of application for court orders, filed on the 9 th day of April 2019, sought, inter alia, an order requiring the process server to attend court for cross-examination. Ms. Brenda Singleton, the process server herein, attended a virtual hearing in the matter on the 1 st day of October, 2020 where she was cross-examined at length by Mr. Neale on behalf of Mr. McCarthy.
The affidavit evidence of Ms. Singleton is that she is a private investigator/process server and that on the 16 th day of January, 2016 at approximately 3:25pm she personally served Edward McCarthy, the applicant/defendant herein, with claim form and particulars of claim dated December 22, 2015. She indicates that service was effected at Lot 106, Chesterfield Road, Bridgeport in the parish of Saint Catherine and at the time of service, the applicant/defendant was not known to her, but admitted to being Edward McCarthy.
It was borne out under cross-examination, that on the day of the purported service, Ms. Singleton drove by the abovementioned address and saw an individual walking at the side of the house thereon. She asserts that she beckoned to the individual and told the person that she was there to see Edward McCarthy at which point the individual said that he was Edward McCarthy. Ms. Singleton admits that she did not know Edward McCarthy before, did not know what he looked like, did not have a picture of him, nor was she in the company of someone who knew him personally.
She further admits that the person who identified himself as being Edward McCarthy, was not requested by her to (nor did he) provide any means of identification. When questioned as to whether she did not think it prudent to ensure that the person she was there to serve was actually the person being served, she indicated that as she was at the address for service, she did not think it necessary to request identification. When questioned as to whether she knew if anyone else resided at the address, her response was that she had no need to know because enquiring if others lived there was not pertinent to what she went there about. She accepts that it is possible that there were other occupants of the house but that was not something she was interested in. She also acknowledged that she was not in a position to dispute whether or not Mr. McCarthy was residing elsewhere at the time, but maintains that the abovementioned address was the address she received for him.
It was suggested to her that she does not know for sure if the person she served is Edward McCarthy. She responded by saying that she has no reason to believe that the person who acknowledged being Edward McCarthy is not in fact him. When asked if she would be able to identify the person who indicated to her that he was Edward McCarthy, she responded by saying that she was not sure as she would have seen the person almost seven years ago. Ms. Singleton was then asked to have a look at the applicant/defendant who was seated beside Mr. Neale and to say whether or not she knew him. Her response was “That person wants to resemble the person I served. Maybe in person, I could make a better judgment, the lighting in your office is not great.” It was suggested to her that she did not serve Edward McCarthy, the applicant/defendant herein, with which suggestion she disagreed.
Counsel for the applicant/defendant submits that based on the cross-examination of Ms. Singleton, there is sufficient evidence to persuade this court on a balance of probabilities that the claim form and particulars of claim were not personally served.
The applicant/defendant further asserts that even if the court was to find that he was served with the claim form and the accompanying documents, the failure to include forms 5 and 6 in the documents served, would render the service irregular. Mr. Neale contends that Mr. McCarthy has at no time admitted to the claim and has not acted in a manner that would waive the irregularity of the service. He avers that the resulting judgment entered would have been irregularly obtained and thus based on the circumstances of this case the judgment in default ought to be set aside as of right.
The respondent/claimant asserts that personal service was effected on the applicant/defendant herein and submits that he has failed, on a balance of probabilities, to prove that it was not. The applicant/defendant's affidavit, filed on the 9 th day of April, 2019 was allowed to stand as his evidence in chief. Thereafter, he was subjected to cross-examination by Ms. Allison Lawrence, counsel for the respondent/claimant.
Mr. McCarthy states in his affidavit evidence that he now resides in Florida in the United States of America. He contends that on the 15 th day of March, 2019 a friend of his sent him photographs via the social media platform known as ‘WhatsApp’. These photographs were of the contents of an envelope, which had his name on it. The envelope contained a letter from the respondent/claimant's attorney-at-law as well as a default judgment. It is the evidence of the applicant/defendant that he forwarded these documents to his attorney-at-law and sought legal advice. He...
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