Frank I Lee Distributors Ltd v Mullings & Company

• Jurisdiction: Jamaica
• Judge: Morrison P,McDonald-Bishop JA,P Williams JA
• Judgment Date: 12 February 2016
• Neutral Citation: JM 2016 CA 15
• Docket Number: SUPREME COURT CIVIL APPEAL NO 98/2014 SUPREME COURT CIVIL APPEAL NO 99/2014
• Court: Court of Appeal (Jamaica)
• Date: 12 February 2016

[2016] JMCA Civ 9

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison P (AG)

The Hon Mrs Justice McDonald-Bishop JA

The Hon Miss Justice Williams JA (AG)

SUPREME COURT CIVIL APPEAL NO 98/2014

SUPREME COURT CIVIL APPEAL NO 99/2014

Between

Frank I Lee Distributors Ltd

Appellant

and

Mullings & Company (A Firm)

Respondent

Between

Mullings & Company (A Firm)

Appellant

and

Frank I Lee Distributors Ltd

Respondent

Written submissions filed by Hugh Wildman instructed by Hugh Wildman and Company for Frank I Lee Distributors Limited

Written submissions filed by Ballantyne , Beswick and Company for Mullings and Company (A firm)

Morrison P (AG)

1 I have read in draft the judgment of my sister P Williams JA (Ag). I agree with her reasoning and conclusion and have nothing to add.

McDonald-Bishop JA

2 I too have read in draft the judgment of my learned sister P Williams JA (Ag) and

I do agree with her reasoning and conclusion.

P Williams JA (AG)

3 On 4 December 2014 an application to set aside a default judgment entered on 5 July 2013 was set for hearing before Sykes J. The default judgment had been obtained by Mullings and Company (A firm) (Mullings) against Frank I Lee Distributors Ltd (Frank I Lee) who had failed to enter an acknowledgment of service in the matter commenced against them on 27 March 2013. Mullings, a firm of attorneys-at-law, had successfully represented Frank I Lee in a matter before the Supreme Court and had sued their former clients for fees deemed to be outstanding.

4 Frank I Lee had contended in its application to have the default judgment set aside that it had never been properly served, hence, its failure to file an acknowledgment of service. At the hearing of the application, Mullings raised a preliminary objection. It was argued that the application should not be heard since there had been no acknowledgment of service filed and therefore the application to set aside was a nullity.

5 Upon hearing submissions Sykes J made the following orders:-

‘It is hereby ordered that:

• 1. This Court determines that an Acknowledgment of Service is a mandatory requirement in Civil Proceedings pursuant to rule 9.2(1) of the Civil Procedure Rules;

• 2. Leave to appeal is granted to the Applicant in relation to this court finding on the mandatory nature of filing an Acknowledgment of Service;

• 3. Leave to appeal is granted to the Respondent in relation to this Court's finding that the present application is not a nullity and should not be struck out pursuant to the Court's finding at paragraph 1 above;

• 4. Costs to date to the Respondent;

• 5. Leave to appeal the costs award is granted to the Applicant;

• 6. This matter is adjourned pending the determination of the appeals for which leave has been granted.’

6 Hence, there are now two appeals for consideration by this court arising from Sykes J's order since both parties are aggrieved at his ruling. On 12 December 2014 a notice of procedural appeal was filed by Hugh Wildman and Company naming Sonia-Lee Franklyn as appellant and Gillian Mullings as the respondent. Sonia-Lee Franklyn is the managing director of Frank I Lee and Gillian Mullings is a partner in Mullings. They were not named as parties in the original appeal. Following notification from this court through the registrar as to the anomaly on the records concerning the names appearing as parties to the appeal, an application was made by Hugh Wildman and Company on 22 December 2015 for an amendment to the notice of procedural appeal to reflect the name Frank I Lee Distributors Limited as the appellant and Mullings and Company (A Firm), the respondent. No objection to the application was filed by the attorneys-at-law for Mullings and the order was granted amending the notice of procedural appeal in terms of the application.

7 It needs to be noted that it was upon being granted an extension of time within which to file their skeleton submissions on behalf of Frank I Lee as appellant, that on 13 August 2015, Hugh Wildman and Company filed the requisite submission. The respondents in this appeal had therefore filed no submissions in this matter and hence it was not until the matter was prepared for the hearing that it was recognized that there was the need for separate submissions in the two matters. Thus, on 21 September 2015, Mullings made the following application —

• ‘1. That the time for service of this application be abridged to date of actual service.

• 2. That the Respondent's submissions filed on 16 September 2015 be permitted to stand as filed.’

8 One of the grounds argued in seeking the orders was:-

‘In the circumstances, this court is invited to regularize the submissions so that the positions of the Appellant and Respondent in both appeals can be considered and evaluated before a decision is reached in the matter.’

9 In my view no prejudice will be caused to the appellant Frank I Lee in granting the application to regularize the matter with the recognition that there are two distinct appeals and they ought not to be considered on the basis of the same submissions. Hence, I would grant the orders in terms of Mullings' application in the matter of appeal No 98/2014. It is however to be noted that the submissions made on behalf of Frank I Lee as respondent in appeal no 99/2014 are substantially the same as those made on their behalf as the appellant in appeal No 98/2014. The submissions made by Mullings as appellants in appeal no 99/2014 were relied on and added to in their submissions as respondents in appeal no 98/2014.

Appeal No 98/2014

10 The order that was made by Sykes J, as it appears in the signed formal order, against which Frank I Lee now complains, is as follows:-

‘This court determines that an Acknowledgment of Service is a mandatory requirement in Civil Proceedings pursuant to rule 9.2(1) of the Civil Procedure Rules.’

11 In their notice of procedural appeal Hugh Wildman and Company set out the following:-

• ‘1. The details of the order appealed are:-That it is a mandatory requirement that in order for an Applicant to set aside a Default Judgment obtained in circumstances where the Applicant was never served with the Claim, or had knowledge of the Claim, the Applicant must file and serve an Acknowledgment of Service for the court to entertain the Application.

• 2. The following findings of law are challenged:

  Findings of Law being challenged:

  • i. That it is a mandatory requirement that in order for an Applicant to set aside a Default judgment obtained in circumstances where the Applicant was never served with the Claim, or had knowledge of the Claim, the Applicant must file and serve an Acknowledgment of Service for the court to entertain the Application.

  • ii. Costs to the Respondent.

• 3. The Grounds of Appeal are:

  (a) The learned Trial Judge erred in law by holding that in order for the Applicant to apply to set aside the Default Judgment obtained by the Respondent against the Applicant, the Applicant must have filed and served an acknowledgment of service, which is a mandatory requirement.

• 4. Orders sought:

  • i. That the Appeal is allowed.

  • ii. The Order of the Honourable Mr. Justice Sykes delivered on December 4 ^th 2014 be set aside;

  • iii. Costs in the Court of Appeal and below to the Appellant to be agreed or taxed;

  • iv. Any further or other relief that this Honourable Court deems fit.’

The submissions

For the appellant-(Frank I Lee)

12 In his written submissions, Mr Hugh Wildman urged that the preliminary objection that the court had no jurisdiction to entertain the application since the filing of an acknowledgment of service was a mandatory requirement and that in its absence, the application was a nullity was inaccurate and misconceived. He submitted that the rules governing the setting aside of default judgments are clear and do not require the filing of an acknowledgment of service.

13 In considering the relevant rules as found in the Civil Procedure Rules 2002 (CPR), he noted CPR 9.3(1) which deals with the period for filing an acknowledgment of service and states:

‘The general rule is that the period for filing an acknowledgment of service is the period of 14 days after the date of service of the claim form.’

14 Counsel submitted that it is of paramount importance that service of the claim must mean that the claim has been brought to the attention of the defendant and it is only when the defendant has been notified of the claim by service that the need for acknowledgment of service arises. Thus, he continued, the rules define what constitutes proper service of the claim and recognize that notwithstanding proper service, the court has the jurisdiction to entertain an application to set aside a default judgment secured from a claim which has been properly served but which may have not been brought to the attention of the defendant. He noted that this usually occurs when service has been effected through the post. He continued this aspect of his submissions by arguing that the rules do allow for an application to be made to set aside a default judgment if it is considered to be in the interest of justice that the judgment ought to be so set aside. In addition, he noted, the court has jurisdiction to set aside a default judgment ex debito justiciae where the claim has never been served on the defendant.

15 Another rule found to be relevant to counsel's submissions was CPR 13.4 which deals with the procedure for applications to vary or set aside default judgments and states:-

• ‘(1) An application may be made by any person who is directly affected by the entry of judgment.

• (2) The application must be supported by evidence on affidavit.

• (3)...