Fitzroy Anthony Cameron v Ashli O'Connor

JurisdictionJamaica
JudgeT. Hutchinson, J (AG.)
Judgment Date13 December 2019
CourtSupreme Court (Jamaica)
Docket NumberCLAIM NO. 2018HCV01863
Date13 December 2019

[2019] JMSC Civ 242

In the Supreme Court of Judicature of Jamaica

CLAIM NO. 2018HCV01863

Between
Fitzroy Anthony Cameron
Claimant
and
Ashli O'Connor
1 st Defendant
Ian Galbraith
2 nd Defendant

IN CHAMBERS

Ms. Kristina Beckford instructed by Kinghorn and Kinghorn for the Claimant

Ms. De-andra Butler instructed by Samuda Johnson for the Applicant/2nd Defendant

Civil Procedure — Application to set aside Default Judgment — Rules 13.2 and 13.3(1) and (2) — Misdescription of address — Defence of Merit — Servant or Agent.

T. Hutchinson, J (AG.)
INTRODUCTION
1

The application before the Court was filed on behalf of the Second Defendant, Mr Ian Galbraith in which he seeks the following orders: -

  • 1. That the Judgment in Default entered against him and all subsequent proceedings be set aside on the ground that it is invalid or irregular;

  • 2. Alternatively, that the Default Judgment be set aside on the ground that the Applicants have a real prospect of successfully defending this claim;

  • 3. The time limited for the filing of the acknowledgement of service be extended to a period of fourteen days from the date of this order;

  • 4. The time for filing his defence be extended to a period of 21 days from the date of this order.

  • 5. The Applicant be granted relief from any sanctions imposed by the Civil Procedure Rules 2002 for failing to file an acknowledgement of service and/or defence within the prescribed time; and

  • 6. There be such further relief as this Honourable Court may see fit.

BACKGROUND
2

The background to this matter is that on the 14th of November 2015 the Claimant was riding his motorcycle along Ruthven Road in the vicinity of the Knutsford Court Hotel when a collision occurred between his motorcycle and a Subaru Impreza motorcar registration 7863GW owned by the Applicant/2nd Defendant which was being driven by Ashli O'Connor the first defendant.

3

On the 15th of May 2018, a Claim was filed on behalf of Mr Cameron against both Defendants which outlined injuries allegedly sustained by him and seeking damages for negligence in addition to interests and costs.

4

On the 17th of July 2018, Mr. Jermaine Richards, Process Server for the Claimant,

provided an affidavit in which he outlined visiting an address at 33 Hill View Drive, Graham Heights and being instructed by a male, who identified himself as the 2nd Defendant, to leave both sets of documents in the mail box which he said he did.

5

No acknowledgment of service or defence was filed by either defendant and on the 18th of July 2018, Judgment in Default of Acknowledgment of Service was entered for the Claimant and the matter was set down for assessment of damages on the 29th of October 2018. This hearing did not proceed as the Application to set aside Default Judgment was filed on the same date.

6

On the 8th of April 2019, the Judgment in Default of Acknowledgment of Service was set aside in respect of the 1st Defendant on the basis that it was irregularly obtained and the hearing of this Application in respect of the 2nd Defendant was adjourned to be heard on the 31st of October 2019.

APPLICANT'S SUBMISSIONS
7

In written submissions Counsel for the Applicant made reference to the relevant rules which should be considered by the Court, specifically rule 13.2 which governs the setting aside of a default judgment which was irregularly entered if the requirements under rule 12.4 were not satisfied. In addition to the rule Counsel also cited and relied on the decision of the UK Court in Anlaby v Paraetorius 20 QBD 764, where it was held :-

Where a plaintiff has obtained judgment irregularly, the defendant is entitled ex debito justitiae to have such judgment set aside and the court has only power to impose terms upon him as a condition of giving him his costs.

8

In respect of the alternate order, to have the judgment set aside on the basis that the defendant has a reasonable prospect of success, Rule 13.3(1) and (2) were highlighted. Counsel also noted that in Victor Gayle v Jamaica Citrus Growers and Anthony McFarlene 2008HCV05707 (unreported) the learned judge made it clear: -

‘that in an application to set aside a default judgment entered under part 12 of the CPR, in applying rule 13.3, the primary consideration is whether the defence has any real prospect of success…However in exercising the discretion whether or not to set aside the judgment regularly obtained, the court must also consider the matters set out in rule 13.3(2).

9

In expanding on this point, Counsel also made reference to an extract from A Practical Approach to Civil Procedure 13 th Edition where this very issue was considered as well as the ruling of the Court in Thorn plc v McDonald [1990] CPLR 660. On the issue of what is meant by ‘a real prospect of success’, Ms. Butler has referred to and relied on the decision of Brooks J as he then was in Dave Blair v Hugh Hyman & Co (A Firm) and Hugh C Hyman 2008 (Supreme Court No. 2297 of 2005. Where he stated as follows;

'…the inclusion of the word ‘real’ means that the (defendant) has to have a case which is better than merely arguable’

10

In respect of the evidence given by the Process Server, Ms Butler highlighted that in cross examination, it was accepted by him that at the time he went to the address he did not know Mr Galbraith, neither did he have a photograph of him nor see an identification presented by the person to whom he spoke. She also made reference to the witness's evidence that he was unable to see clearly through the window and he could not say for sure whether the person present in Chambers for the hearing was the same person to whom he spoke.

11

In examining the evidence of the Applicant, Counsel noted that Mr Galbraith testified that he was never personally served with the documents but was in fact handed them by his mother who found them in the mail box. She also highlighted that the utility bills presented by Mr. Galbraith show that he was living at 15 Cassia Park Avenue and not the address where the Process Server said he saw him. His evidence of his fiance's miscarriage on the day of the purported service, which was supported by her account that they were together at the time she sought medical assistance is also advanced for the Court's consideration as to whether service took place.

12

It was Counsel's submission that the evidence of the Process Server by itself raises questions as to whether Mr. Galbraith was in fact served and the uncertainty of service is compounded by the evidence of Mr Galbraith and Ms O'Connor that they were elsewhere on the date of service. It is in light of this ‘uncertainty’ Counsel submitted that the default judgment should be set aside as irregularly entered.

13

In her submission in respect of the alternate order sought, Ms Butler pointed out that the 1st Defendant maintains that the collision was caused or at the very least contributed to by the Claimant who did not ensure that it was safe to overtake. She observed that in such circumstances the 2nd Defendant has a substantial defence which has a reasonable prospect of success. Although it was not stated in the submissions, it was also evident on the draft defences filed that the Defendants were taking issue with the 1st Defendant being an agent or servant of the 2nd Defendant as this assertion by the Claimant was strongly denied.

14

On the failure of the 2nd Defendant to file an acknowledgement of service once the documents were brought to his attention, Counsels submitted that he had handed the documents to his insurance company and had expected that they would have dealt with the matter. She asks that this explanation be viewed as a good explanation in all the circumstances.

15

It was also submitted that the Applicant/2nd Defendant sought to act with due expediency as he was served with the Perfected Judgment in Default on the 9th of October 2019 and his application to set aside this order was filed on the 29th of October 2018. She referred to and relies on the decision of Victor Gayle supra, where a delay of more than a year was not viewed by the Court as a bar to the setting aside of the order where there was a defence of merit.

16

On the point of any prejudice which would be occasioned to the Defendant by the setting aside of this order, Counsel submitted that no evidence has been put before the Court stating that there would be any prejudice. She accepted that if the order is set aside it would prevent the immediate recovery of the proceeds of his judgment by the Claimant but contended that in light of the Defendants account as to how the accident occurred, any setting aside would be but a mere inconvenience. Counsel concluded her submission on this point by noting that any possible prejudice which may be caused to the Claimant should not outweigh the need for the case to be decided on its merits.

CLAIMANT'S SUBMISSIONS
17

In outlining her submissions in opposition to the orders sought, Ms. Beckford sought to draw the Court's attention to the fact that while there was some disagreement as to whether the address to which the Process Server went was 33 Hill View Close or Hill View Drive, the description of the premises given by him was accepted by the Applicant under cross examination. She has also highlighted that the physical description of the male to whom the Process Server spoke in terms of complexion, build and height were also accepted by the Applicant as matching his appearance save for a difference of one inch in respect of the height.

18

Counsel also submitted that based on the evidence of the 2nd Defendant, he is the only male who would likely have been at the premises at the relevant time. She highlighted the portions of his evidence where he stated that only he, his mother, his sister and his fiance, the 1st defendant, had access to the premises and by access he meant a key. She also asked the Court to take note of his...

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