Bupa Insurance Ltd (trading as Bupa Global) v Roger Hunter

• Jurisdiction: Jamaica
• Judge: Phillips JA,McDonald-Bishop JA,F Williams JA
• Judgment Date: 13 February 2017
• Court: Court of Appeal (Jamaica)
• Docket Number: CIVIL APPEAL NO 103/2015
• Date: 13 February 2017

Between

Bupa Insurance Limited (trading as Bupa Global)

Appellant

and

Roger Hunter

Respondent

[2017] JMCA Civ 3

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McDonald-Bishop JA

The Hon Mr Justice F Williams JA (AG)

CIVIL APPEAL NO 103/2015

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Written submissions filed by Myers, Fletcher & Gordonfor the appellant

Written submissions filed by Hylton Powell for the respondent

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)

Phillips JA

1 I have read, in draft, the comprehensive judgment of McDonald-Bishop JA. I agree with her reasoning and conclusion and I have nothing useful to add.

McDonald-Bishop JA

2 Bupa Insurance Limited, trading as Bupa Global (Bupa), has brought this procedural appeal against the decision of Sykes J, delivered in the Commercial Division of the Supreme Court on 7 October 2015, in which he refused Bupa's applications to, inter alia, set aside an order permitting service of the claim form and particulars of claim out of the jurisdiction; set aside the service of the said originating documents served pursuant to that order; and to strike out the claim. In those proceedings below, Bupa is named as second defendant in a claim brought by the respondent, Dr Roger Hunter (Dr Hunter), against Bupa and Mrs Alma Grace-Leahy (Mrs Leahy), who is named as the first defendant. The claim was brought on the basis that Bupa and/or Mrs Leahy are indebted to Dr Hunter in the sum of £194,800.00 for medical treatment of Mrs Leahy by Dr Hunter.

The background

3 Bupa is a company incorporated in the United Kingdom and carries on business internationally as a provider of medical insurance. It provided group health insurance coverage to Kier Group Plc (Kier). Mrs Leahy is covered under this policy, being the spouse of an employee at Kier. Dr Hunter is a consultant spinal surgeon and consultant neurosurgeon at the Medical Associates Hospital (MAH).

4 On 14 January 2014, Dr Hunter performed surgery on Mrs Leahy at MAH, to address serious spine-related medical complications. Prior to the surgery, Bupa provided written pre-authorization confirmation/treatment approval for Mrs Leahy to proceed with the surgery. The terms of the treatment approval were embodied in a form, the treatment approval form. By those terms, Bupa, inter alia, approved the conduct of the surgery and treatment by Dr Hunter and agreed to pay for the treatment within the terms and conditions of the patient's plan. Bupa also declared in the form that “we will only meet costs that are medically necessary to treat this particular condition and that are reasonable and customary”.

5 Following the surgery, Dr Hunter, at the request of Bupa, sent Bupa an invoice in the sum of £221,700.00. The invoice set out details of the treatment and costs attributable to each aspect of the treatment. Bupa paid Dr Hunter only £26,900.00 and refused to pay the balance of £194,800.00. Mrs Leahy also refused to accede to Dr Hunter's demand for the payment of the outstanding balance.

Proceedings in the Supreme Court

6 By a claim form filed on 5 January 2015, and amended on 29 April 2015, Dr Hunter claims against Mrs Leahy and Bupa the outstanding sum of £194,800.00.

7 On 21 January 2015, Edwards J (as she then was) granted permission to Dr Hunter to serve the claim form and the particulars of claim outside of the jurisdiction on Bupa. It was also a term of the order that Bupa was to file an acknowledgment of service within 42 days and the defence within 70 days of service on it of the claim form and particulars of claim. On 7 May 2015, Bupa was served by a procedurally acceptable method with the order of Edwards J for service out of the jurisdiction, the amended claim form (together with prescribed notes to the defendants and forms of acknowledgment of service of claim form), and the amended particulars of claim. Bupa, however, failed to file an acknowledgment of service and a defence in the time stipulated in the order.

8 In the meantime, on 31 March 2015, Mrs Leahy filed her defence to the claim. In her defence, she averred, inter alia, that the agreement for her treatment was between MAH and Bupa and that Dr Hunter was an agent of the hospital. According to Mrs Leahy, there was no agreement by her to pay Dr Hunter's reasonable fees and expenses for the surgery and other treatment in the event and to the extent that he was unable to recover from Bupa. Mrs Leahy averred further, and in the alternative, that even if there was an agreement between herself and Dr Hunter, he would have been estopped from pursuing the claim against her because, based on his conduct, she was of the view that Bupa would cover all the costs and expenses related to the surgery and she had relied on this representation to her detriment. Further, she averred that the payment already made by Bupa to Dr Hunter is reasonable and customary for the treatment received. Her case, therefore, is that she is not liable to Dr Hunter for the outstanding sum he is claiming.

9 On 3 July 2015, Bupa, without filing an acknowledgment of service and or a defence in compliance with the order of Edwards J, filed an application to set aside the order permitting service of the claim form and particulars of claim outside of the jurisdiction as well as the service of the said documents. An application was also made for the time to be extended for the application to be made. An amended application was filed on 13 July 2015, which included an application to set aside any judgment in default of acknowledgment of service, if entered against Bupa, and to strike out Dr Hunter's statement of case against Bupa.

10 On 18 September 2015, a further amended notice of application for court orders was filed by Bupa, which now included an application for an order that the court has no jurisdiction to try the claim. It was at the filing of that further amended notice of application for court orders that Bupa filed an acknowledgment of service, which was, for all intents and purposes, out of time.

11 On 23 September 2015, Sykes J heard the applications. The applications to extend time to make the applications; to set aside the order for service out of the jurisdiction; to set aside the service of the amended claim form and amended particulars of claim; for an order that the court had no jurisdiction to try the claim; and for the striking out of the claim were hotly contested by Dr Hunter. There was no contest to the application to set aside the default judgment (if one had been entered).

12 On 7 October 2015, Sykes J, made the following orders:

• “1. The application to extend time to make these applications is granted.

• 2. The application to strike out the claim is refused.

• 3. The application to set aside the order for service out of the jurisdiction is refused.

• 4. The application to set aside the service of the Amended Claim Form and particulars of Claim is refused.

• 5. Any default judgment entered is set aside.

• 6. Leave to appeal is granted.

• 7. The period for filing the 2 ^nd Defendant's Defence is within 56 days of the date of this Order.

• 8. No Case Management Conference date is to be set until the appeal is heard and determined or the 2 ^nd Defendant indicates that it is not pursuing the appeal. …”

The appeal

13 Dissatisfied with Sykes J's decision, Bupa filed this procedural appeal, challenging the following four aspects of the order of Sykes J:

• “(1) The application to strike out the claim is refused.

• (2) The application to set aside the order for service out of the jurisdiction is refused.

• (3) The application to set aside the service of the Amended Claim Form and Particulars of Claim is refused.

• (4) The implicit refusal of the application for a declaration that the Supreme Court has no jurisdiction to try the claim against [Bupa].”

Grounds of appeal

14 These are the grounds on which Bupa has brought its appeal:

Orders being sought on appeal

• “(1) The learned judge erred by exercising the court's jurisdiction in circumstances where it had no jurisdiction due to improper service.

• (2) The learned judge erred by failing to appreciate that [Dr Hunter's] failure to serve [Bupa] in compliance with the Civil Procedure Rules, 2002 amounts to a breach of natural justice, which cannot be cured.

• (3) The learned judge erred by treating Bupa's procedural errors as equivalent to Dr Hunter's.

• (4) The learned judge erred by failing to appreciate that [Dr Hunter's] failure to properly serve [Bupa] means that time had not yet started to run against [Bupa] and, in any event, jurisdictional points may be taken at any time.

• (5) The learned judge erred by failing to appreciate that Bupa's original application filed July 3, 2015 was, on its face, a challenge to the court's jurisdiction.

• (6) The learned judge erred by failing to set aside the Order permitting service out of the jurisdiction pursuant to the CPR or ex debito justitiae.

• (7) The learned judge erred by failing to set aside the service of the Amended Claim Form and Amended Particulars of Claim pursuant to the CPR or ex debito justitiae.

• (8) The learned judge erred by failing to appreciate that Bupa is not a necessary or proper party to this claim.

• (9) The learned judge erred by failing to assess [Dr Hunter's] claim against [Bupa] on the basis of the evidence before him.

• (10) The learned judge erred by allowing Dr Hunter to enforce a contract to which he is not privy.

• (11) The learned judge erred by placing reliance on Brown & Davis Ltd v Galbraith.

15 Bupa now seeks these orders from this court:

• “(1) The appeal is allowed.

• (2) The order of the Hon Mr Justice Sykes made on October 7, 2015 is set aside, save for the order granting an extension of time to [Bupa] and setting aside any default judgment that may have been entered against...