Chung v Cunningham
| Jurisdiction | Jamaica |
| Judge | Morrison P,F Williams JA,P Williams JA |
| Judgment Date | 31 July 2017 |
| Neutral Citation | JM 2017 CA 27 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 18/2016 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 July 2017 |
[2017] JMCA Civ 22
IN THE COURT OF APPEAL
THE HON Mr Justice Morrison P
THE HON Mr Justice F Williams JA
THE HON Miss Justice P Williams JA
SUPREME COURT CIVIL APPEAL NO 18/2016
Written submissions filed by Winsome Marsh for the appellant
Written submissions filed by Samuels & Samuels for the respondent
Civil Appeal - Procedural appeal — Set aside default judgment — Reasonable prospect of success — Delay — Appeal allowed.
I have read in draft the judgment of my sister P Williams JA. I agree with her reasoning and conclusion and have nothing useful to add.
I too have read the draft judgment of P Williams JA and agree with her reasoning and conclusion.
This is an appeal against the decision of Master Rosemarie Harris (Ag) (as she then was), whereby the application of Mrs June Chung, the appellant, to set aside the default judgment entered in favour of Ms Shanique Cunningham, the respondent, was refused. The learned master also refused to extend time for the appellant to file her defence and further refused leave to appeal. The appellant received permission to appeal from this court on 19 February 2016.
On 22 March 2007, the respondent filed a claim against the appellant and Foo Hing and Company Limited for damages for slander, libel and malicious prosecution. The claim resulted from an incident that had occurred in the Foo Hing Supermarket, 7–11 Stenneth Street, Port Maria in the parish of Saint Mary on 15 March 2004. The appellant had accused the respondent of trying to steal a bottle of ketchup from the supermarket. The respondent was eventually arrested and charged by the police and placed before the Resident Magistrate's Court for the parish of Saint Mary (as it was then called) for the offence of simple larceny. The respondent was acquitted on 25 April 2005.
The respondent commenced the suit and the appellant was served with the relevant documents on 29 March 2007. The time for filing an acknowledgment of service passed without the appellant having done so. The time for the filing of a defence similarly passed with no action on the part of the appellant. The parties, however, engaged in discussions hoping to resolve the matter amicably.
When it became apparent that there could be no amicable resolution, the attorneys-at-law then retained for the appellant, Robinson Phillips and Whitehorne, filed an acknowledgement of service and a defence on behalf of the appellant. This was done on 19 September 2008 and both documents were dated 11 September 2008. The respondent on 15 September 2008 filed a request for default judgment along with an interlocutory judgment and a notice of assessment of damages, for a date to be fixed by the court upon the entry of judgment requested.
Over three years later, the respondent filed a notice of application for the acknowledgment of service and the defence of the appellant to be struck out. She also sought orders for judgment to be entered in default of filing an acknowledgment of service or alternatively in default of filing and serving the defence. This application and its accompanying affidavit in support were filed on 29 March 2012. The application was set for hearing on 8 November 2012.
Two days before the matter was to be heard, Mr William McCalla, the attorney-at-law for the appellant, filed an affidavit requesting that the orders sought by the respondent be refused and that the defence of the appellant be allowed to stand. Mr McCalla asserted that it was in August 2007 that the appellant had visited him at his office and informed him that the documents had been served on her husband, who did not remember the date of service.
Further, Mr McCalla asserted that his instructions were to open negotiations with the respondent's attorney to see whether the matter could be amicably resolved. At paragraph 5 of his affidavit, Mr McCalla said the following:
“5. However when I received the Claimant's draft assessment of the amount of damages being claimed which was in excess of $10,000,000.00 my Client then instructed me to defend the matter — hence Acknowledgement of Service and Defence were filed as no Judgment had yet been entered. Further, the claimant's Attorney-at-Law accepted Service on 19 th September, 2008 and also accepted service of the defence and did nothing to rectify the identity of the First Defendant and is now seeking to strike out the Defence, some three years from the date of filing the Acknowledgement of Service and Defence.”
The application was heard on 8 November 2012 by McDonald Bishop J (as she then was). The respondent's application to strike out the acknowledgment of service and the defence was granted. Further, the learned judge made the following order:
“Claimant is at liberty to request judgment in default of acknowledgment of service and defence.”
On 22 October 2012, a request for interlocutory judgment in default of acknowledgement of service was filed on behalf of the respondent.
On 4 December 2012, the appellant filed a notice of application for court orders requesting leave to file her defence along with an affidavit in support of this application. The respondent responded by way of affidavit on 20 January 2013, urging the court to decline the appellant's request.
On 7 May 2013, the appellant filed an amended notice of application for court orders seeking to have the default judgment set aside and for an extension of time within which to file her defence within 14 days of the date of hearing of the application. The grounds on which the orders were being sought were as follows:
“1. That the judgment in Default obtained by the Claimant is irregular in that there was a failure to comply with rule 8.16 of the CPR;
2. That the 2nd Defendant has a real prospect of successfully defending the claim;
3. That the granting of the Orders being sought herein will not be prejudicial to the Claimant.”
The appellant filed no further affidavits in support of this amended notice. She was therefore apparently relying on the affidavit filed on 4 December 2012. In that affidavit, she confirmed much of what had been asserted by Mr McCalla in his affidavit. She also gave her version of what had transpired in the supermarket on 15 March 2004, which had led to the eventual arresting and charging of the respondent. She exhibited her proposed defence.
In the defence, the appellant denied the existence of any legal entity known as ‘Foo Hing and Company Limited’. She admitted that, on the day in question, something happened in the supermarket and went on to recount her version of the incident. She asserted that she made a report to a police officer who was then outside the store and subsequently called the police at Port Maria Police Station. She admitted making the report that the respondent had taken a bottle of Grace Tomato Ketchup from the shelf, placed same in her handbag and was about to leave the store without paying for same. She ended this brief statement of the facts on which she was relying to dispute the claim with the following:
“7. In view of the foregoing this Defendant says that the Claimant is not entitled to the relief claimed in the Particulars of Claim or to any relief.”
The appellant's amended application was heard by Master Lindo, as she then was, and on 22 October 2013 she made the following orders:
“1. That the Defendant's application is refused.
2. Costs are awarded to claimant to be taxed if not agreed.
3. Leave to appeal is refused.”
The appellant sought and obtained advice from new attorneys-at-law and on 21 July 2014, there was a notice of change of attorney filed by the attorneys-at-law now on record. On 24 July 2014 the appellant filed a new application for court orders seeking inter alia:
“1. The Default Judgment as requested against the Second-named Defendant herein not be perfected and be set aside;
2. The time for filing the Second-named Defendant's Defence be extended to 14 days from the date hereof.”
This application was accompanied by an affidavit from the appellant with substantially more detail and information than had been outlined in her previous affidavit. The proposed defence exhibited with this affidavit, also set out in detail, facts on which the defendant was relying. Further, this proposed defence was now compliant with rule 69.3 of the Civil Procedure Rule (‘ CPR’), which sets out what is required in a defendant's statement of case in defamation claims.
The appellant's attorneys-at-law were served on 10 April 2015 with the default judgment, now perfected and dated 22 October 2012, the date it was requested. Subsequent to the close of submissions on the application for leave to appeal before this court, the appellant's attorneys-at-law obtained a copy of the formal entry of the default judgment. This document bore the date 10 July 2014 below the signature of the deputy registrar and above the judgment binder No 761 and folio 471.
On 28 April 2015, Master Harris (Ag) commenced hearing the appellant's second application and the hearing continued on 20 May 2015. On 28 July 2015, the learned master gave her decision and made the following orders, inter alia:
“1. Application to set aside Default judgment regularly entered is refused;
2. Application for an extension of time to file Defence out of time is refused;
3. Cost of application to the claimant to be agreed or taxed.”
As already indicated, the appellant promptly applied to this court for leave to appeal which was granted on 19 February 2016.
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Dr O'Neil Lynch v Minister of Labour and Social Security
...to consider the remedy that was being sought to determine the issue of jurisdiction. 27 The case of June Chung v Shanique Cunningham [2017] JMCA Civ 22 (‘ June Chung’) was relied on in support of counsel's submission that the learned judge failed to properly exercise her discretion. This er......