B & J Equipment Rental Ltd v Joseph Nanco

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 15 February 2013
• Neutral Citation: JM 2013 CA 12
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 101/2012
• Date: 15 February 2013

[2013] JMCA Civ 2

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 101/2012

Between

B & J Equipment Rental Limited

Appellant

and

Joseph Nanco

Respondent

Written submissions filed by Nigel Jones & Company for the appellant

Written submissions filed by Rogers , Burgher & Company for the respondent

CIVIL PROCEDURE - Default judgment - Claim form served without prescribed notes for the defendant - Assessment of damages - Final judgment - Order for seizure and sale granted - Leave to set aside default judgment - Whether judgment irregular - Whether defendant had real prospect of success

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules)

IN CHAMBERS

Morrison JA

Introduction

1 The appellant was at the material time the respondent's employer. On 9 July 2009, arising out of an accident at the workplace, in which the respondent received severe personal injuries, his attorneys-at-law (“Rogers & Burgher”) served the appellant with a claim form by registered post. Accompanying the claim form were particulars of claim and a form of acknowledgment of service. However, a form of defence and the prescribed notes for defendants, required to be served with a claim form by rule 8.16(1)(b) and (c) of the Civil Procedure Rules 2002 (CPR), were not served. On 30 July 2009, attorneys-at-law (“Pearson & Co”) acting for the appellant filed an acknowledgment of service, indicating that the claim form and particulars of claim were received by the appellant on 16 July 2009 and that it intended to defend the claim.

2 On 17 November 2009, no defence having been filed by the appellant, the respondent obtained judgment in default of defence against the appellant. On 10 August 2010, after a hearing at which both the appellant and the respondent were represented by counsel, an order for interim payment of $6,000,000.00 was made in the respondent's favour by Brooks J (as he then was) and an assessment of damages hearing was fixed for 27 October 2010. The appellant was again represented by counsel at the assessment and on 12 November 2010 damages were assessed and final judgment entered. On 23 November 2010 a copy of the final judgment was sent by registered post to the appellant and served on Pearson & Co. On 20 January 2011, an order for seizure and sale was made and on 25 January 2011, the bailiff for the Corporate Area executed the order on the appellant.

3 By notice of application filed on 15 February 2011, the appellant sought an order setting aside the judgment in default and this application was in due course heard and refused by the order of McDonald-Bishop J made on 2 July 2011. This is an appeal, with leave of the judge, against this decision. It raises important issues as to (i) the effect of (a) a failure to comply with rule 8.16(1) and (b) the filing of an acknowledgment of service; and (ii) whether the conditions for setting aside judgment in default laid down in Part 13 of the CPR were satisfied.

The application to set aside the default judgment

4 The application was made on the following grounds:

• i. A condition of rule 12.5 was not satisfied and as such there was a failure to file a defence on the part of the appellant (rule 13.2(1)(a)).

• ii. The appellant was not served with either the prescribed notes for defendants or a draft defence with the claim form (rule 8.16(1)).

• iii. Alternatively, the appellant has a real prospect of successfully defending the claim.

• iv. Alternatively, the appellant has a good explanation for failing to file a defence within time.

• v. Alternatively, the appellant applied to the court as soon as reasonably practicable after finding out that judgment had been entered against it.

5 The application was supported by two affidavits sworn to by Ms Tricia Bennett, a director of the appellant company, on 28 January 2011 and 14 February 2011. An affidavit in support of the application (sworn to on 11 February 2011) was also provided by Mr Jason Jones, an attorney-at-law attached to the firm of attorneys-at-law who now represent the appellant. In her first affidavit, Ms Bennett stated that, before action was filed, the appellant was notified of an intended claim by a letter dated 18 February 2009 from Rogers & Burgher, written on behalf of the respondent. Writing on behalf of the appellant, Ms Bennett responded to that letter on 4 March 2009, advising Rogers & Burgher that ‘all queries in regards to this matter can be forwarded to our lawyer, Mr Anthony Pearson’. Under cover of a letter of that same date, Ms Bennett also wrote to Pearson & Co, for Mr Pearson's attention, submitting ‘all correspondence as instructed by you’. On or about 16 July 2009, the appellant was served with a claim form with a notice to the defendant, an acknowledgment of service form and particulars of claim, all of which were sent to Pearson & Co ‘to represent us in this matter’. Pearson & Co were always aware, Ms Bennett stated, that the appellant intended to contest the respondent's claim and the appellant was repeatedly assured by Mr Pearson that ‘the matter was being dealt with and that we would have our day in court’.

6 Ms Bennett stated that the appellant was not aware of the court's procedural requirements, ‘apart from the duty to acknowledge service which was the limited information contained in the documents with which we were served in July 2009’. Further, the appellant was not aware that there were any hearings in the matter and first knew that a judgment had been entered against it when the bailiff visited its offices in Clarendon to execute the order for seizure and sale on 25 January 2011. After a meeting with Mr Pearson that same day (at which Mr Pearson ‘insisted that the document the Bailiff had was a Claim Form and not a Judgment’), contact was made with the appellant's current attorneys-at-law the following day and the matter was handed over to them, with instructions to ‘take immediate action to protect our interest’.

7 Ms Bennett exhibited to her first affidavit a copy of an investigator's report dated 9 March 2005, which concluded, after detailed consideration of the circumstances of the accident in which the respondent received his injuries, that the appellant did not breach its duty to the respondent, who ‘was the author of his own misfortune’. Attached to the report were statements taken from the respondent and his co-worker, Mr Alphanso Lugg, who was also sued jointly with the appellant. The investigator's report, Ms Bennett said, ‘sets out amongst other things, or [sic] defence in this matter’. She exhibited to her second affidavit a copy of the proposed defence, which denied negligence and alleged contributory negligence on the part of the respondent. Attached to the proposed defence was a copy of the investigator's report dated 9 March 2005, which, it was again stated, ‘sets out the basis of our defence’.

8 In his affidavit, Mr Jones produced the results of a search of the Supreme Court file on the matter, which, as the learned judge summarised it (at para. [13] of her judgment), ‘revealed that the prescribed notes for the defendant and the form of defence did not accompany the claim form as required by the rules’.

The judge's decision

9 In a thoughtful reserved judgment ( Joseph Nanco v Anthony Lugg & B & J Equipment Rental Ltd [2012] JMSC CIVIL 81 ), McDonald-Bishop J considered, firstly, whether the judgment was irregular, as a result of the failure of the respondent to serve the documents required by rule 8.16(1) to be served with the claim form. Considering this failure to have been ‘an irregularity in service’ (para. [40]), which could be waived, the learned judge concluded that the irregularity had been waived by the appellant in this case, by acknowledging service, indicating its intention to defend and actively participating in other aspects of the proceedings, without any application disputing jurisdiction under rule 9.6. In coming to this conclusion, she distinguished the decision of this court in Dorothy Vendryes v Richard Keane and Karene Keane [2011] JMCA Civ 15, in which it had been decided that a failure to comply with the mandatory requirements of rule 8.16(1) was fatal to a judgment entered in default of acknowledgment of service. The learned judge observed (at para. [22]) that the default in the instant case, in which acknowledgment of service had been filed, ‘was, therefore, not in relation to service but in relation to the failure to file a defence’, thus rendering further consideration of the issue of service unnecessary.

10 Secondly, as regards the question whether the default judgment should be set aside as a matter of discretion pursuant to rule 13.3, McDonald-Bishop J found that, on the material placed before her, the appellant had not demonstrated by way of affidavit evidence in appropriate form that (i) the application to set aside had been made promptly; (ii) it had a realistic prospect of successfully defending the action at trial; and (iii) there was a good explanation for the failure to file a defence within time. Accordingly, she concluded, the application should be dismissed, with costs to the respondent to be agreed or taxed.

The grounds of appeal and the submissions

11 The appellant challenges the judge's decision on the following grounds:

• ‘(i) The learned judge failed to correctly apply the principles of law enunciated in the judgment of the Jamaican Court of Appeal decision of Dorothy Vendryes v Dr. Richard Keane and Karane [sic] Keane

• (ii) The learned judge failed to [sic] incorrectly determined that a mandatory requirement of the Civil Procedure Rule [sic] could be waived.

• (iii) The learned judge incorrectly treated the issue of non-service of the relevant documents as a procedural irregularity.

• (iv) The learned judge incorrectly stated that documents...