D & LH Services Ltd and Others v Attorney General and Commissioner of the Jamaica Fire Brigade

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A.
• Judgment Date: 25 September 1999
• Neutral Citation: JM 1999 CA 15
• Judgment citation (vLex): [1999] 3 JJC 2613
• Court: Court of Appeal (Jamaica)
• Date: 25 September 1999

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE RATTRAY, P THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE HARRISON, J.A

BETWEEN:

D & L H SERVICES LIMITED

1st PLAINTIFF/ APPELLANT

ISADRA INTERNATIONAL LIMITED

2nd PLAINTIFF/APPELLANT

DALEY, WALKER & LEE HING (a firm) by its partner CLIFTON DALEY

3rd PLAINTIFF/ APPELLANT

CLIFTON DALEY

4th PLAINTIFF/APPELLANT

AND

THE ATTORNEY-GENERAL

1st DEFENDANT/ RESPONDENT

AND

THE COMMISSIONER OF THE JAMAICA FIRE BRIGADE

2nd DEFENDANT

Clifton Daley and Miss Yvonne Ridguard for the 1st, 2nd and 3rd appellants

Yvonne Ridguard for 4th appellant

Lennox Campbell, Senior Assistant Attorney-General and Cordel Green for respondent

CIVIL PROCEDURE - Interlocutory judgment - Leave to appeal and set aside judgment - Whether defendants gave a good defence

HARRISON, J.A.

1 This is an appeal against the order of Mrs. Z. McCalla, J. of 21st. May, 1998 setting aside the interlocutory judgment against the first defendant/respondent on the ground that there was a good defence and granting leave to file and deliver the said defence within five days thereof. We heard the arguments on both sides dismissed the appeal and promised to put our reasons in writing. We now do so.

2 The history of this matter is that the writ and statement of claim were filed and served on 24th November 1997 on the 1st defendant/respondent and on 26th November 1997 on the 2nd defendant. The plaintiffs allege negligence and breach of statutory duty on the part of the 2nd defendant resulting in damage and loss to them due to a fire on their premises in November 1997. Appearance was entered on behalf of the 1st defendant/respondent but no defence was filed. On 21st January 1998 the appellants by way of summons sought leave to enter judgment in default of defence against the first defendant/respondent. At the hearing of the summons on 10th March 1998 by the Master both the appellants and the respondent were represented, and it was ordered that the appellants be at liberty to enter judgment in default of defence but execution be stayed for fourteen (14) days during which period the 1st defendant/respondent had leave to file and serve a defence failing which the order should stand.

3 The respondent failed to file a defence within the said time, consequently on 27th March 1998 the appellants filed and entered its said judgment pursuant to the order of the court on 10th March 1998 and issued a summons to proceed to the assessment of damages to be heard on 16th April 1998.

4 On 9th April 1998 the respondent filed a summons to set aside the judgment and sought an extension of time in which to file a defence. The defence was in fact filed on 30th March 1998, six days after the time limited by the said Master for filing, and served on the appellants on 31st March 1998.

5 On 21st May 1998, the respondent succeeded in having the said judgment set aside, by Mrs. McCalla, J. on the ground that despite being a mandatory order of the court she had the jurisdiction to do so. An affidavit of information and belief of an officer of the 1st defendant/respondent was valid and admissible and although there was delay, the fact that there was merit shown by the defence in the affidavits was the factor of primary consideration. As a consequence the instant appeal is before us.

6 Mr. Daley for the appellants argued that the said judgment entered and perfected was a mandatory order of the court and therefore cannot be set aside. He said that it was entered in accordance with section 258B of the Judicature (Civil Procedure Code) Law and therefore was not a default judgment. The judgment was regularly obtained and perfected and cannot be set aside. It was a final and not an interlocutory judgment and accordingly the affidavit of Cordel Green was hearsay and inadmissible and was not an affidavit showing merit. There was no defence showing merit.

7 Mr. Campbell for the respondent submitted that the learned trial judge had jurisdiction to set aside the said judgment filed on 27th March 1998 even though it had been entered pursuant to an "unless" order and had the power to exercise her discretion to extend time in which to file the defence (section 676 of the Code). There was no necessity for reasons for delay. If merit is shown in the defence, the exercise of the discretion will not be disturbed. The judgment was interlocutory and there is no rule making a distinction that such a judgment when perfected cannot be set aside. The affidavit of Cordel Green is admissible and shows a defence on the merits, refuting the plaintiffs' claim. The respondent always displayed an intention to defend and there was no principle that a judgment by default by order of the court cannot be set aside.

8 Both counsel relied on authorities in support of his submission.

9 Where the plaintiff's claim is one of unliquidated damages and the defendant does not file a defence, judgment may be entered in default of defence, under the provisions of section 247 of the Judicature (Civil Procedure Code) Law (the Code). It reads:

"247. If the plaintiff's claim is, as against any defendant, for unliquidated damages only, and that defendant does not, within the time allowed for that purpose, deliver a defence, the plaintiff may enter interlocutory judgment against him for damages to be assessed and costs, ..."

10 However, if the proceedings are against the Crown, such judgment may only be entered with leave of the Court or a judge. Section 258B of the Code provides:

"258B. In any proceedings against the Crown no judgment for the plaintiff shall be entered in default of pleading without the leave of the Court or a Judge, and any application for such leave shall be made by notice of motion or summons served not less than seven days before the return day." (Emphasis added)

11 The requirement of leave by "the Court or a Judge" prior to entry of judgment in proceedings against the Crown is not peculiar to section 258B. The restriction also exists under section 78A (judgment in default of appearance) and under section 79 (summary judgment). The purpose and rationale are that the Crown consists of so many various arms and agencies that the Court takes the precaution to make it certain that knowledge of and service of the correct government agency has been effected. Such a judgment thereafter entered by leave of the Court or Judge remains a default judgment against the Crown. The matter would not have been heard on its merits. There has been no trial. Consequently, such a judgment may be set aside under the provisions of section 258, which, alike section 247, appears under the heading, "Title 26. Default of Pleading." Section 258 reads:

"258. Any judgment by default, whether under this Title or under any other provisions of this...