Avadawn Francis v Audley Malcolm
| Jurisdiction | Jamaica |
| Judge | Rattray, J. |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] JMSC Civ 13 |
| Docket Number | CLAIM NO. 2004 HCV 01407 |
| Court | Supreme Court (Jamaica) |
| Date | 05 February 2019 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2004 HCV 01407
And
Mr. Ainsworth Campbell for the Claimant/Respondent
Ms. Pauline M. Brown Rose for the 1 st Defendant/Applicant
Civil Practice and Procedure-Notice of Application to set aside Default Judgment — Rule 13. 3 of the Civil Procedure Rules — Principles to be applied in setting aside a Default Judgment.
Cor: Rattray, J.
On the 10 th May, 2003, the Claimant Avadawn Francis, was a passenger in motor vehicle licensed 4244BX, owned and driven by the 1 st Defendant, Audley Malcolm, which was travelling in the downtown Kingston area. At the intersection of King Street and Harbour Street, a collision occurred involving the motor vehicle in which the Claimant was a passenger and motor vehicle licensed 4742EA owned and driven by Mark Gordon, the 2 nd Defendant, in which the Claimant sustained personal injuries.
As a result of this accident, the Claimant instituted proceedings on the 16 th June, 2004, against both Defendants, claiming damages for negligence as a result of the injuries she sustained in the said motor vehicle collision.
The 1 st Defendant having been served with the Claim Form and Particulars of Claim filed his Acknowledgement of Service on the 16 th December, 2004. However, his Defence was not filed until the 11 th April, 2005, outside the forty-two (42) day period prescribed by Rule 10.3(1) of the Civil Procedure Rules (CPR) and without the consent of the Claimant or the permission of the Court. Having failed to file his Defence within the stipulated time, the Claimant obtained Default Judgment against the 1 st Defendant on the 31 st March, 2005.
By way of Notice of Application for Court Orders filed on the 20 th July, 2016, the 1 st Defendant applied to the Court for an Order that the Default Judgment entered against him be set aside and for his Defence filed on the 11 th April, 2005, be allowed to stand. The grounds on which the 1 st Defendant sought the aforesaid Orders are set out hereunder: -
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a) That the 1 st Defendant has a real prospect of successfully defending the claim; and
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b) That the Claimant will suffer no prejudice if the Application is granted.
The Application was supported solely by an Affidavit sworn to by Counsel for the 1 st Defendant, Ms. Pauline M. Brown Rose and filed on the 27 th March, 2017. In her Affidavit Counsel averred, in so far as is relevant, the following: -
“2. That I am the Attorney-at-Law on record for the First Defendant/Applicant and I am duly authorized to depone to this affidavit on his behalf.
3. That my knowledge of the facts and matters deponed to herein are derived from my involvement in the subject matter and that such facts and matters in so far as they are within my own knowledge, are true to the best of my information and belief.
4. That the matter involves a personal injury claim brought by the Claimant against the Defendants arising out of a motor vehicle accident which occurred on the 10th May, 2003.
5. That on the 16th June, 2004 the Claimant initiated proceedings against the Defendants to recover damages for negligence arising out of an accident on the 10th day of May, 2003.
6. That the First Defendant in his defence filed on the 11th April, 2005 in which the First Defendant denied the allegation of negligence against him in the Claim Form and Particulars of Claim and presented his own version of the events stating inter alia that the Second Defendant was the sole cause of the accident in that the Second Defendant negligently drove motor vehicle registered 4742 EA along a one way street going in the wrong direction thereby causing a collision into the motor vehicle registered 4244BX being driven by the First Defendant in which the Claimant was a passenger.
7. That Ancillary Claim and Ancillary Particulars of Claim were filed against the Second Defendant. I exhibit hereto a copy of the said defence dated and filed on the 11th April, 2005 marked “PMBR 1” and copies of Ancillary Claim Form and Particulars of Claim dated and filed on the 11th April, 2005 marked “PMBR 2”.
8. That by way of notice of application for court orders filed on the 8th July, 2005 an application was made by the First Defendant's former Attorney at law to set aside an interlocutory judgment in default of appearance and for the First Defendant to be granted leave to have his defence filed on the 11th July, 2005 stand as effective service.
9. That the application was scheduled for hearing on the 25th July, 2006. That on that date neither the Second Defendant nor his Attorney was present and the application was struck out and cost of $8000.00 was awarded to the Claimant.
10. That on or about September, 2006, I assumed conduct of the matter and notice of Change of Attorney was filed.
11. That there was no activity on the part of the Second Defendant as the file was misplaced.
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13. That on the 20th July, 2016 a new application was made to set aside the Default Judgment against the First Defendant.
14. That the delay in making this application is not due to the fault of the First Defendant, but was primarily to the fact that his file was misplaced.
15. Furthermore during the period between September 2006 and July 2016 the Claimant's Attorney took no steps to advance the matter.
16. That I verily believe that the First Defendant has a real prospect of successfully defending the claim on the issue of liability and quantum and I crave leave to refer to the defence filed in this honourable court on the 11th April, 2005.
17. That the First Defendant wishes to have the opportunity to contest damages and examine the Claimant on the issue of quantum and liability. The First Defendant would wish to have the Default Judgment now entered against him set aside and the issue of liability be determined at trial.
18. That I do verily believe that the First Defendant will be significantly prejudiced if the orders being sought is refused. In the alternative, the Claimant who is obligated to prove General and Special Damages will in no way be prejudiced by the making of the said orders.”
[Emphasis supplied]
The power of the Court to set aside a regularly obtained Default Judgment is contained in Rule 13.3 of the CPR which reads: -
“(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.”
Rule 13.3 must be considered along with Rule 13.4 of the CPR which outlines the procedure to set aside or vary a Default Judgment. That Rule provides: -
“(1) An application may be made by any person who is directly affected by the entry of judgment.
(2) The application must be supported by evidence on affidavit.
(3) The affidavit must exhibit a draft of the proposed defence.”
The power of the Court to set aside a regularly obtained Default Judgment is a matter for the discretion of the Court, provided that the 1 st Defendant has satisfied the requirements of Rule 13.3 of the CPR. In order to invoke the Court's discretion, the major factor the Court has to consider is whether the 1 st Defendant has a real prospect of successfully defending the claim. If there is real prospect of success in the Defence, then the Court should also bear in mind other factors, such as the reason for not filing a Defence in time, and how soon the Application to set aside the Default Judgment was made.
Phillips JA in Merlene Murray-Brown v Dunstan Harper and Winsome Harper [2010] JMCA App 1, expressed this position as follows: -
“[23] In September 2006, the rule was amended and there are no longer cumulative provisions which would permit “a knockout blow” if one of the criteria is not met. The focus of the court now in the exercise of its discretion is to assess whether the applicant has a real prospect of successfully defending the claim, but the court must also consider the matters set out in 13.3 [2] [a] & [b] of the rules.”
The “real prospect of success” test referred to in Rule 13.3 of the CPR, is similar to that considered by the Court on the hearing of a Summary Judgment Application. This view was outlined by Edwards JA (Ag) (as she then was), in the case of Russell Holdings Limited v L & W Enterprises Inc and ADS Global Limited [2016] JMCA Civ. 39, where she posited that: -
“[83] A defendant who has a real prospect of successfully defending the claim may still be shut out of litigation if the factors in rule 13.3(2) (a) and (b) are considered against his favour and if the likely prejudice to the respondent is so great that, in keeping with the overriding objective, the court forms the view that its discretion should not be exercised in the applicant's...
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Ruthlyn Small v Terry Small
...swear the affidavit. The said affidavit was then the Affidavit of Merit of the appellant…” 35 In Avadawn Francis v Audley Malcolm et al [2019] JMSC Civ 13 (a post- CPR decision), Rattray J distinguished Ramkissoon on the basis that counsel in that case had outlined the facts which she conte......