Blake (Charmin) (Administratrix of the estate of Ernest Blake, decedased) v Alcoa Minerals of Jamaica Inc.

• Jurisdiction: Jamaica
• Judge: PHILLIPS, J.A.
• Judgment Date: 19 July 2010
• Neutral Citation: JM 2010 CA 100
• Judgment citation (vLex): [2010] 7 JJC 1901
• Court: Court of Appeal (Jamaica)
• Date: 19 July 2010

[2010] JMCA Civ 31

IN THE COURT OF APPEAL

BETWEEN

CHARMIN BLAKE (Administratrix of the Estate of Ernest Blake, deceased)

APPELLANT/CLAIMANT

AND

ALCOA MINERALS OF JAMAICA INC.

RESPONDENT/DEFENDANT

PROCEDURAL APPEAL

CIVIL PROCEDURE - Procedural appeal - Stay of proceedings - Default judgment - Overriding objective - Civil Procedure Rules 2002, Rules 12.3 and 26.2

PHILLIPS, J.A.

1 This is a procedural appeal filed on behalf of the appellant/ claimant against an order of Rattray J, made on 4 May, 2010 wherein he refused a preliminary objection made by the appellant to the application for stay of proceedings taken out by the respondent/defendant.

The appellant challenged the court's finding in law in the following manner:

"That despite the wide wording of rule 12.3 of the Civil Procedure Rules 2002, rule 26.2(1) and the overriding objective gives the court the power to exercise its discretion in the interests of justice to allow a Defendant against whom a Claimant has obtained a default judgment which has not been set aside to proceed to make an Application to stay all proceedings."

2 The grounds of the appeal are set out as follows:

• "(a) The learned trial judge erred in law in holding that rule 26.2 (1) of the Civil Procedure Rules 2002 and the overriding objective invests him with power to override the clear wording of rule 12.13 of the said Rules in the interest of justice.

• (b) The learned trial judge erred in law in holding that the Respondent/Defendant was entitled to pursue an Application to Stay all Proceedings in the claim at first instance in circumstances where the Appellant/Claimant holds a Judgment in Default in her favour, which judgment has to date not been set aside."

3 The submissions of the appellant can be summarised as set out below: It was the appellant's contention that she had duly prosecuted her case and had served the originating documents, namely the claim form and the particulars of claim by registered post since October 2008. The amended claim form and amended particulars of claim had also been served by the said registered post by 3 February 2009. Notice of application for court orders was filed requesting judgment in default of acknowledgement of service and the Judgment in default was duly entered on 21 September 2009.

4 The respondent filed an application to set aside the default Judgment, which, as far as I know, has not yet been heard, although it had been set to be heard on 10 June 2010. The respondent then filed the application to stay proceedings and it was at the hearing of that application that the preliminary point was taken by counsel on behalf of the claimant objecting to the hearing of that application, which was refused and forms the basis of this appeal. The appellant took the position that the respondent's application was misconceived since the only rights available to the respondent following the entry of the default judgment were as circumscribed by rule 12.13, being that the case was closed unless there was in fact an order obtained to set aside the default judgment.

5 The appellant relied on the specific wording of rule 12.13, and what the appellant submitted was trite law, in that civil litigation commences with the claim form or the fixed date claim form and ends with a judgment, obtained after a trial on the merits of the case or by default of one party acknowledging service or defending the claim. Thus, the argument runs, having obtained the judgment in default, the litigation was at an end, and the lawsuit is effectively terminated until and unless the judgment is set aside. The appellant further submitted that rule 26 of the Civil Procedure Rules (CPR), on which the respondent relied, did not apply and as the application before the court was not for a stay of execution and no attempt had been made to enforce the judgment, then any attempt to stay proceedings would be in vain as the already terminated, and the matters on which the respondent could be heard pursuant to rule 12.13 were very clear.

6 Counsel relied on the case of Delroy Rhoden v Construction Developers Associates Limited and Trevor Reid , SCCA No. 42/2002 delivered on 18 March 2005, to say that any proceedings embarked upon after the entry of a default judgment, while that judgment remained extant, would be a nullity. Counsel concluded that the learned trial judge had therefore fallen into error as no proceedings remained to be stayed, the proceedings having already been terminated.

7 The respondent in reply submitted that the respondent had not received by registered post or otherwise the sealed copies of the claim form or amended claim form and/or the particulars of claim or amended particulars of claim. The respondent only became aware of the proceedings when the application was filed to obtain judgment in default and, when the respondent became aware that the default judgment had been entered against it, took steps to set the same aside. That application came up for hearing but was not heard, as the claimant required time to respond to certain affidavits filed on behalf of the respondent. It was the respondent's contention that in spite of knowing about the application to set aside the default judgment, which had been adjourned at her request, and that a date had been fixed for the hearing of the same, in June, 2010, the claimant none the less proceeded to serve a bill of costs. thereby endeavouring to enforce the...