Dabdoub v Allan Flowers and Others

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 31 October 2009
• Judgment citation (vLex): [2009] 1 JJC 0601
• Court: Supreme Court (Jamaica)
• Date: 31 October 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2005 H.C.V. 5442

BETWEEN

KHALIL DABDOUB

CLAIMANT

AND

ALLAN FLOWERS

1 ^ST DEFENDANT

AND

SEYMOUR MCINTOSH

2 ^ND DEFENDANT

AND

RADCLIFFE BUTLER

3 ^RD DEFENDANT

APPLICATION BY INSURER TO SET ASIDE ORDER FOR SUBSTITUTED SERVICE- INSURER STATING UNABLE TO FIND INSURED- NOT DENYING RELATIONSHIP OF INSURER AND INSURED, BUT CLAIMING INSURED IN BREACH OF MOTOR INSURANCE POLICY

IN CHAMBERS

CIVIL PROCEDURE - Substituted service - Application by insurer to set aside order - Insurer stating unable to find insurer - Not denying relationship of insurer and insured but claiming insurer in breach of motor insurance policy

Mangatal J

1 This is an application by United General Insurance Company Limited, now Advantage General Insurance Company Limited "the Insurer", to set aside an order for substituted service made by Master McDonald( as she then was) ex parte on the 30 ^th March 2006. By that order, the Claimant was granted permission to effect personal service on the Insurer in lieu of their insured, the First Defendant Allan Flowers. The insurer's application, which was filed May 8 2006, is also seeking to set aside all subsequent proceedings, including a default judgment entered against the 1 ^st Defendant on or about the 2 ^nd of November 2007. The insurer in addition seeks permission to file an acknowledgement of service.

2 The application has been vigorously opposed, and Mr. Jalil Dabdoub, on behalf of the Claimant, has taken the following preliminary points:

• (a) The Applicant is not properly before the court and has no standing at this time as it has failed to file an acknowledgement of service pursuant to the Civil Procedure Rules 2002 "the C.P.R.".

• (b) This court has no power to set aside the order for substituted service made by another Judge exercising concurrent jurisdiction.

• (c) The application is misconceived because there is in place a default judgment.

3 As to the first preliminary point, I agree with Mrs. Campbell who appears for the Insurer, that, by virtue of the fact that the application which the insurer purports to make is in its own right, and not as a Defendant, and is an application to set aside the order for substituted service on itself, it is not necessary that an acknowledgement of service be first filed.

4 As to preliminary point (b), whether this court has jurisdiction to set aside the order for substituted service made by the Master exercising the jurisdiction of a judge in chambers, it seems clear to me that the order being an ex parte order, the court does have jurisdiction in the proper circumstances, to set aside or vary such an order. The decision of the Judicial Committee of the Privy Council in Ministry of Foreign Affairs v. Vehicles and Supplies Limited 28 J.L.R. 198 is supportive of the view which I have taken. Indeed, so too are all of the other English cases where applications were made to set aside orders for substituted service discussed in my unreported decision in Suit No. C.L.2002/ W-062, Watson v. Nelson and Mullings , delivered...