Blair (Dave) v Hugh C. Hyman & Company (A Firm) and Hugh C. Hyman

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 16 May 2008
• Judgment citation (vLex): [2008] 5 JJC 1601
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2005 HCV 2297
• Date: 16 May 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2005 HCV 2297

IN CHAMBERS

BETWEEN

DAVE BLAIR

CLAIMANT

AND

HUGH C. HYMAN & Co. (A Firm)

1 ^ST DEFENDANT

AND

HUGH C. HYMAN

2 ^ND DEFENDANT

Practice and Procedure — Application to set aside default judgment — Delay in filing Defence — Whether Defence has any real prospect of success — Rule 13.3 of the CPR — Limitation period in Tort

CIVIL PROCEDURE - Judgment - Default judgment - Application to set aside - Delay in filing defence

CIVIL PROCEDURE - Judgment - Default judgment - Application to set aside - Delay in filing defence

BROOKS, J

1 On 19 ^th December 1991 Mr. Dave Blair suffered burns and other injuries in an incident while at work. He blamed Alumina Partners of Jamaica (Alpart) for the incident. He retained the law firm of Hugh C. Hyman & Co. and its principal Mr. Hugh C. Hyman to act for him in securing compensation for his suffering. I shall refer to the lawyers collectively, as "Hyman". Mr. Blair asserts that because of Hyman's failure to serve a Writ of Summons on Alpart within the limitation period, he was forced to compromise his claim against Alpart. The result, he says, is that he recovered only a portion of what he would have recovered in a suit. He has therefore filed this claim against Hyman for damages for negligence.

2 Hyman failed to file either an acknowledgment of service or statement of defence within the stipulated time. A judgment in default of defence was eventually entered against them. Hyman have now filed this application to set aside the default judgment. Mr. Williams for Mr. Blair resists the application on the basis that Hyman have no real prospect of successfully defending the claim.

3 The question for the court to resolve is whether Hyman have satisfied the requirements of rule 13.3 of the Civil Procedure Rules 2002 (CPR), concerning setting aside judgments entered in default.

4 Chronology of the Events

• 1. 19/12/91 - Mr. Blair injured.

• 2. October 1995 - Mr. Blair retained Hyman

• 3. 27/12/96 - Writ of Summons in Suit C.L. 1996/B414 filed

• 4. 24/12/98 - Ex Parte summons to extend the validity of the Writ filed

• 5. 11/1/99 - Order made extending the validity of the Writ of Summons for 30 days from 11/1/99

• 6. 10/2/99 - Statement of Claim filed

• 7. 10/2/99 - Writ of Summons and Statement of Claim mailed to Alpart by registered post

• 8. 26/3/99 - Alpart filed a conditional appearance and a motion applying to set aside the renewal of the Writ of Summons and the service of the Writ

• 9. January 2004 - Mr. Blair retained Messrs. Grant Stewart Phillips and Co. (GSP), attorneys-at-law

• 10. 9/8/05 - Claim form and Particulars of claim filed against Hyman

• 11. 23/8/05 - Hyman served with Claim form and Particulars of Claim

• 12. 4/10/05 - Acknowledgement of Service filed

• 13. 26/9/05 - Request for default judgment (re acknowledgement) filed

• 14. 30/12/05 - Application to extend time to file defence filed

• 15. 29/11/06 - Request for default judgment (re defence) filed

• 16. 23/3/07 - Judgment in default of defence entered

• 17. 31/7/07 - GSP advise Hyman that claim against Alpart settled

• 18. 19/12/07 - First appointment for hearing of application to extend time

5 Rule 13.3

6 In order to succeed in this application Hyman have to show that they have satisfied the requirements of rule 13.3.

7 The rule states 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.

  (Rule 26.1 (3) enables the court to attach conditions to any order)"

8 The present formulation has been in effect since September of 2006. It is less stringent than the previous version and allows the court to consider the Overriding Objective in arriving at its decision. It is now closer to rule 13.3 of the Civil Procedure Rules in England. Although paragraph (2) of the rule speaks to considering the timing of the application and the reason for the failure to file the defence in time, Mr. Williams has indicated that he takes no issue with those aspects of Hyman's application. I shall therefore accept the application as having satisfied those elements of the rule. I therefore turn to the aspect of Hyman's prospects of success in defending the claim. In doing so I do not think that I contravene the principles set out in Villa Mora Cottages and anor. v Shtern SCCA 49/2006, cited by Miss Davis on behalf of Hyman. That case concerned observing the requirements of rule 26.8 is not relevant to the issue of the prospects of success of Hyman's defence.

9 There have been a number of cases decided since the inception of the CPR in both Jamaica and England which have contemplated the issue raised by the phrase "a real prospect of successfully defending the claim" as it used in the rule. Arising from those decisions, the learned editors of Civil Procedure 2003 (The White Book) have, at paragraph 13.3.1, opined:

"The phrase...reflects the test for summary judgment...It is not enough to show an "arguable" defence..."

10 At paragraph 24.2.3 the learned editors expand on the subject:

"...it is sufficient for the (defendant) to show some "prospect", i.e. some chance of success. That prospect must be real, i.e. the court will disregard prospects which are false, fanciful or imaginary. The inclusion of the word "real" means that the (defendant) has to have a case which is better than merely arguable...The (defendant) is not required to show that his case will probably succeed at trial."

11 I accept that as i working definition of the phrase.

12 In our jurisdiction, Mangatal, J. (Ag.) (as she then was), considered the meaning of the phrase in Sydney Malcolm v Metropolitan Management Transport Holdings Limited and Glenford Dickson Suit No. C.L. 2002/M225 (delivered 21/5/2003). The learned judge approved a similar definition to that which has been set out above.

1...