Courtney Harris v Patricia O. Newland

• Jurisdiction: Jamaica
• Judge: Master C. Thomas
• Judgment Date: 15 December 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. 2016 HCV 01700

Between

Courtney Harris

Claimant

and

Patricia O. Newland

1 ^st Defendant

and

Jim Hosang

2 ^nd Defendant

[2023] JMSC Civ 244

Master C. Thomas

CLAIM NO. 2016 HCV 01700

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Civil Procedure Rules — rule 13.2 — Application to set aside default judgment — whether defendants were served — whether default judgment should be set aside as of right

Michelle Ann Cousins and Stephen McCreath instructed by Zavia Mayne & Co. for the claimant

Jamila Maitland and Anthony Armstrong instructed by Campbell McDermott for the defendant

Introduction

1 The instant application to set aside default judgment arose from an accident which occurred on 24 December 2014. On that day, the 2 ^nd defendant was driving the 1 ^st defendant's motor vehicle registered 2644 EY along the Drax Hall main road in the parish of St Ann when a collision occurred between the 1 ^st defendant's motor vehicle and the claimant's pedal cycle, as a result of which the claimant sustained injuries.

2 On 27 April 2016, claim form with prescribed accompanying documents and particulars of claim (“originating documents”) were filed and on 28 June 2016, judgment in default of acknowledgement of service was entered against both defendants. Service of the originating documents was proven by an affidavit of service sworn to by Andrew Scott filed on 23 June 2016. In that affidavit, Mr Scott deponed that on 13 May 2016 at 5:29 pm, he served a true copy of the originating documents on Patricia O Newland at Steer Town in the parish of St Ann. Ms Newland, he deponed, was known to live at this location and was not previously known to him but when he visited the “given address” she admitted that she was the 1 ^st defendant and accepted service of the documents when he handed them to her.

3 Mr Scott also deponed that on 13 May 2016 at 5:29 pm, he served the 2 ^nd defendant at Hollywood District, Steer Town in the parish of St Ann. As was the case with the 1 ^st defendant, Mr Scott stated that the 2 ^nd defendant was known to live at this location and that the 2 ^nd defendant was not previously known to him but when he visited the “given address”, the 2 ^nd defendant admitted that he was the 2 ^nd defendant and accepted service of the documents.

4 On 7 June 2018, following an assessment of damages hearing, final judgment in the amount of $2,400,000.00 for general damages and $25,430.00 for special damages plus interest was entered against both defendants and on 9 September 2019, an order for seizure and sale was filed. Service of the default judgment, witness statements and all other documents pertaining to the assessment of damages was proved by the affidavits of Paul Wong and Steevie Smith.

5 On 11 April 2019, the defendants filed the instant application seeking, inter alia, to set aside the interlocutory judgment, the final judgment and all proceedings flowing therefrom as well as a stay of execution of the final judgment. The substantive grounds relied on in support of the application are that:

• (i) the defendants were not served with the claim form and the particulars of claim;

• (ii) the defendants were not served with the interlocutory judgment in default and the notice of assessment;

• (iii) the fact that the defendants were not served with the aforesaid documents was not brought to the court's attention at any time in the proceedings.

6 The application was supported by three affidavits filed on 13 January 2021: affidavit of Harrington McDermott, affidavit of Petrena O Newland and affidavit of Jim Hosang.

7 Mr McDermott, among other things, stated that his firm was instructed by Advantage General Insurance (“AGI”) that on 2 May 2016, AGI was served with a notice of proceedings which had been filed on 27 April 2016 and that the next time AGI heard anything further regarding the claim was on 27 June 2018 when it was served with final judgment which had been filed on 22 June 2018. It took some time for AGI to contact the 1 ^st defendant as when the telephone number on file for the insured was called, the automated message was that it was unassigned. Mr McDermott further deponed that upon ultimately being able to contact the 1 ^st defendant, she advised that she had not been served with any legal documents in this matter and that she did not believe that the 2 ^nd defendant, who was her husband and the authorised driver at the time of the alleged incident, was served with any documents as he resides in Canada and was not in Jamaica in 2016 or 2017 but had travelled to Jamaica in January of 2018 and had spent approximately 3 weeks. Mr McDermott also deponed that in March 2019, he received a telephone number for the 2 ^nd defendant in Ontario, Canada and during the telephone conversation, the 2 ^nd defendant informed him that he was not served with any documents in this matter and “corroborated the information” that the 1 ^st defendant had previously given about his travel history.

8 Aside from giving their account of how the accident transpired, the essence of the defendants' evidence is that they were not served with any documents in this claim. The 1 ^st defendant, who deponed that her name is Petrena Newland, stated “categorically that [she] was not served with any documents by Andrew Scott or anyone else for that matter”. She referred to the affidavit of Mr Scott where she was referred to as Patricia Newland and stated that had she been approached and referred to as Patricia Newland by anyone, she would not have acknowledged that person. Furthermore, she deponed, at the time Mr Scott alleged to have served the documents on her, she would have been at her place of business which is located at 3 Main Street, St Ann's Bay as it is the norm for her to be at her place of business from 8:00 am to 8:00 pm, Mondays to Saturdays. She also stated that she had never met Mr Steevie Smith or Mr Paul Wong. She also gave evidence in relation to the 2 ^nd defendant's whereabouts at the time Mr Scott alleged that he had served the 2 ^nd defendant. She stated that the 2 ^nd defendant is a Canadian citizen residing in Canada and that he has never resided at Steer Town and that whenever he is in Jamaica he stays at Vista Del Mar in St Ann or Savoy Crescent in Manchester. She stated that prior to January 2018, the last time that the 2 ^nd defendant had visited Jamaica was in 2015 for his mother's funeral. At the time of the alleged service by Mr Scott, the 2 ^nd defendant was not in Jamaica. Copies of the 2 ^nd defendant's Canadian passport were exhibited.

9 The 2 ^nd defendant, among other things, deponed that after the day on which the accident occurred, in January of the following year, he departed Jamaica and returned home to Canada. He heard nothing further about the accident until he was called sometime in March or April 2019 by Mr Harrington McDermott informing him that the claim had been brought against him and that a final judgment had been entered against him and the 1 ^st defendant and that AGl was now required to pay in excess of $2,400,000.00. He deponed that not only was he not in Jamaica on any of the three occasions on which Mr Scott, Mr Wong and Mr Smith had allegedly served him, he does not reside at Steer Town and never has. He stated that the 1 ^st defendant resides at Steer Town with their daughter and that whenever he visits Jamaica, he would pick up his daughter and she would stay with him at Vista Del Mar as he and the 1 ^st defendant are separated and do not have a good relationship. He exhibited a copy of “the official correspondence received from the Passport Immigration and Citizenship Agency [showing [his] travel history from 2014”. This document was written under the signature of one Ezra Whittock, Acting Director of Immigration Services and was a letter addressed to the defendants' attorneys-at-law to which was attached the 2 ^nd defendant's travel history “as taken from the Jamaica Border Management System -enTReX”. He stated that had he been served with any legal documents; he would have taken them to the insurance company as he does not believe that he was at fault in the collision.

10 On 15 April 2021, Mr Scott swore to an affidavit in response to the application to set aside the default judgment in which he deponed that he received instructions to serve the originating documents on both defendants, “both of Steer Town and particularly in the Hollywood district in the parish of St Ann”. He deponed that on 13 May 2016 upon arriving at the “abovementioned address”, he made further enquiries as the defendants were not previously known to him. He stated that he had read the 1 ^st defendant's affidavit where she had denied being served, and that when he enquired of her as to whether she was Patricia Newland, she acknowledged that her surname is Newland and that her proper name is Petrena Newland. He then presented the documents to her and told her it was regarding a motor vehicle accident. She did not appear surprised and willingly accepted same. He described her as appearing to be in her forties, of dark complexion and approximately 5 feet 6 inches.

11 Mr Scott also deponed that he saw a man who was of “medium built, [and] appeared to be in his late forties. He had facial hair and was of light complexion.” He asked the man if his name was Jim Hosang and he said “Yes”. The man admitted knowing about the incident and willingly accepted the documents. He also stated that he had been a process server for some time now” and took his profession seriously. He did not have any personal relations with the defendants and so would have no reasons at all to provide false information to his employer about serving them with his firm's documents.

12 As the accounts of the defendants, on the one hand, and that of Mr Scott, on the other hand, were diametrically opposed, these affiants were subject to cross-examination. Mr Steevie Smith could not be located so he was...