Attorney General of Jamaica v John Mackay

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,Hibbert JA
• Judgment Date: 20 January 2012
• Neutral Citation: JM 2012 CA 2
• Court: Court of Appeal (Jamaica)
• Docket Number: APPLICATION NO 125/2010
• Date: 20 January 2012

[2012] JMCA App 2

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Hibbert JA (Ag)

APPLICATION NO 125/2010

Between

The Attorney General of Jamaica

Applicant

and

John Mackay

Respondent

Miss Lisa White instructed by the Director of State Proceedings for the applicant

Mrs Alexis Robinson instructed by Myers, Fletcher and Gordon for the respondent

CIVIL PROCEDURE - Extension of time - Application to apply for leave to appeal - Leave to appeal judgment entered for failure to file defence - CPR 2002, Rule 13.3

Morrison JA

Background

1 By an amended notice of application for court orders dated 21 July 2010, the applicant seeks an extension of time to apply for leave to appeal and leave to appeal against an order made by Anderson J in the Supreme Court on 28 May 2010. By that order, the learned judge refused the applicant's application to set aside a judgment in default of defence entered against him on by order of Rattray J on 12 January 2010, and on 7 July 2010 the learned judge also refused the applicant's application for leave to appeal against that order.

2 This application arises in the following way. The respondent was at the material time the principal of Campion College, a Jesuit high school situated in Liguanea in the parish of St Andrew. Some time in August 1998, certain irregularities in the school's accounts were brought to the respondent's attention by the school's auditors and he in turn made a report to the ministry. On 21 May 1999, he was arrested and charged by Detective Sergeant Magloria Campbell, a member of the Constabulary Force attached to the Fraud Squad, with the offences of larceny as a servant and conspiracy to defraud the Ministry of Education. The respondent was in consequence imprisoned at the Central Police Station lock up from 21 to 22 May 1999. He was in due course prosecuted before the Resident Magistrate's Court for the Corporate Area and, on 4 September 2002, the bulk of the charges against him having previously been withdrawn by the prosecution, he was acquitted of the remaining charges.

3 On 23 April 2007, the respondent filed a claim form and particulars of claim against the applicant, as representative of the Crown and pursuant to the Crown Proceedings Act, claiming damages for false imprisonment and malicious prosecution. The claim form and the particulars of claim were served on the applicant on 22 October 2007 and, on 11 December 2007, the applicant filed an acknowledgment of service of the claim form. Because of the applicant's insistence that the particulars of claim that had been served did not bear the stamp of the Registry of the Supreme Court, the particulars of claim were re-served on the applicant on 21 August 2008. On 17 March 2009, the respondent applied for judgment in default of defence against the applicant.

4 On 25 June 2009, the applicant filed an application for extension of time to file a defence, but no affidavit was filed in support of this application and no notice of it was served on the respondent. The application was therefore not before the court when the respondent's application for default judgment came on for hearing before Edwards J (Ag) (as she then was) on 22 July 2009. That application was adjourned until 12 January 2010, so that it could be heard with the applicant's application for an extension of time to file a defence to the claim.

5 On 12 January 2010, the applicant filed an affidavit in support of the application for extension of time. The affidavit was sworn to by Miss Lisa White, attorney-at-law in the applicant's chambers, and to it was exhibited a draft of the applicant's proposed defence. Paragraph 5 of the draft asserted that Detective Sergeant Campbell had had ‘reasonable and probable cause’ for arresting and charging the respondent, but the affidavit gave no explanation for the delay in making the application. Miss White did acknowledge, however (in para. 3), that there had been ‘some delay’ on the part of the applicant. When the applications came on for hearing before Rattray J later that day, the learned judge refused to accept the applicant's late affidavit and granted the respondent's application for judgment in default of defence, for damages to be assessed and costs to be taxed. The judgment in default was served on the applicant on 22 January 2010.

6 On 12 April 2010, the applicant filed an application to set aside the judgment (but not, as Mrs Robinson for the respondent pointed out, an application for extension of time to file a defence). From the stated grounds of the application, it is clear that it was made pursuant to the provisions of rule 13.3 of the Civil Procedure Rules (“the CPR”), which provides as follows:

‘(1) The court may set aside or vary a judgment entered under Part 12 if the defendant has a real prospect of successfully defending the claim.

(2) In considering whether to set aside or vary a judgment under this rule, the court must consider whether the defendant has:

(a) applied to the court as soon as is reasonably practicable after finding out that judgment has been entered.

(b) given a good explanation for the failure to file an acknowledgement of service or a defence, as the case may be.

(3) Where this rule gives the court power to set aside a judgment, the court may instead vary it.’

7 This application was also supported by an affidavit sworn to by Miss White on 12 April 2010, in para. 3 of which it was stated that, before the date on which judgment in default was ordered, the applicant had sought and obtained instructions from the Commissioner of Police and that, based on those instructions, the applicant had ‘a good prospect of defending the Claim’. Miss White went on to state that those instructions ‘show that the police had reasonable and probable cause to arrest and charge the [respondent]’, in the light of ‘questionable dealings by the [respondent] with various sums of money that were to be managed by the signing officers of Campion College on behalf of the said school and not for their personal use’. The affidavit also exhibited a revised draft defence which, Miss White stated (at para. 5), ‘is supported by intended evidence which forms part of our instructions which the Crown can mount at trial’.

8 The application, which was served on the respondent on 19 May 2010, duly came on for hearing before Anderson J on 28 May 2010 and, as I have already indicated, the judge refused to set aside the judgment. Although there is no written judgment from the judge himself, we were very helpfully provided by counsel with an agreed note of Anderson J's stated reasons for refusing to grant the application to set aside. In response to a submission by Mr Gavin Goffe, who appeared for the respondent at that hearing, that there was no evidence that would allow the judge to form the view that the applicant had a real prospect of successfully defending the claim (‘the draft defence is a pleading, not evidence’), the learned judge said that ‘Mr Goffe is correct…the affidavit doesn't provide basis [sic] for defending or give reasonable excuse for the delay’. Further, the judge observed, ‘This is really an application for relief from sanctions’ and the behaviour of the state ‘must be exemplary’.

9 No application for permission to appeal having been made orally at the hearing before Anderson J, on 23 June 2010 the applicant filed an application for permission to appeal, supported by a first affidavit of Miss White sworn to on the same day. In that affidavit, Miss White sought to amplify the factual basis of the application to set aside the judgment by praying in aid the contents of the respondent's witness statement, which had been served on the Director of State Proceedings (the DSP) on 3 June 2010 (that is, after the hearing before Anderson J), on the ground that it revealed that there was ‘material evidence which arises on the Claimant's case and demonstrates that there are triable issues and that the defendant has a reasonable prospect of success’ (para. 5). In a second affidavit also sworn to on 23 June 2010, Miss White stated (at para. 3) that the instructions received by the DSP ‘show that the police did not initiate proceedings against the [respondent]’ and she exhibited a copy of an unsigned statement by Detective Sergeant Campbell.

10 By a document headed ‘Furter [sic] Notice of Application for Court Orders’, which was filed on 7 July 2010, the applicant also sought orders that the judgment in default be set aside and that permission to file a defence be granted. However, it does not appear that any affidavit was filed in support of this application and, on that same day, after a hearing before Anderson J, the learned judge refused the application for leave to appeal. This is counsel's agreed note of what the learned judge said in his ruling on that occasion:

‘Leave sought is leave to appeal my decision not to set aside default judgment. [The] Rules are clear, speaks to real prospect of success.

What this court has to do is consider whether the basis upon which the decision not to set aside was made is likely to be seriously challenged.

Part 13.3 sets out circumstances where court considers application to set aside. 13.3 and 13.4 does [sic] not appear that the bases are being seriously challenged, in particular whether the application to set aside has a real prospect of success or gives reasons for delay.

On these narrow grounds, I dismiss application with costs to the respondent.’

The renewed application for leave

11 As aleady indicated, the application that is now before the court seeks, in the first place, an extension of time to apply for leave to appeal. However, at the outset of the hearing of this application, counsel for the respondent indicated that she did not propose to contend, as had been done...