Hugh C. Hyman & Company & Hyman (Hugh C.) v Blair (Dave)

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: HARRISON, J.A.
• Judgment Date: 26 March 2009
• Neutral Citation: JM 2009 CA 16
• Judgment citation (vLex): [2009] 3 JJC 2602
• Date: 26 March 2009

IN CHAMBERS

BETWEEN

HUGH C. HYMAN & CO. (a Firm)

1 ^ST APPELLANT

AND

HUGH C. HYMAN

2 ^ND APPELLANT

AND

DAVE BLAIR

RESPONDENT

PROCEDURAL APPEAL

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Procedural appeal - Refusal to set aside a regularly entered judgment - Whether discretion properly exercised - Civil Procedure Rules 2002, Part 13.3

Ransford Braham instructed by Livingston, Alexander and Levy for the Appellants.

Kevin Williams instructed by Grant, Stewart, Phillips & Co. for the Respondent.

HARRISON, J.A

Introduction

1 This is a procedural appeal against an order made by Brooks J., on May 16, 2008 whereby he refused to set aside a default judgment and to extend time for filing and service of the Defence. The learned judge also ordered that the Claimant was at liberty to apply for his damages to be assessed. Written submissions have been filed and served.

The Factual Background

2 On December 19, 1991 Dave Blair (the Respondent) was seriously injured while on the job and in the employment of Alumina Partners of Jamaica (ALPART). He brought an action against ALPART and sought damages in respect of the burns and other injuries he had sustained. He was represented by Dunn, Cox and Orrett, Attorneys at Law, between 1991 and 1995. Discussions had commenced between the Attorneys and ALPART with a view to settle the matter but a settlement was not achieved. In 1995, there was merger of the firms Dunn, Cox and Orrett and Millholland, Ashenheim and Stone. The latter were Attorneys for ALPART so Dunn Cox and Orrett were unable to continue representing the Respondent. His files were handed over to Hugh C. Hyman & Co. (the Appellants) in or about October 1995.

3 The Appellants resumed discussions with ALPART in order to settle the matter but it was clear by December 1996 that ALPART was not prepared to settle on the Appellants' terms. The latter were claiming in excess of $4.5 million whereas ALPART was offering $650,000.00.

4 On December 27, 1996 the Appellants issued a Writ of Summons but no Statement of Claim was filed. It was not until February 10, 1999 that the Appellants settled and filed the Statement of Claim. The Writ that was filed on December 27, 1996 had not been served on ALPART and had expired on December 26, 1997. No application was made by the Appellants prior to the expiry of the Writ to extend its life.

5 On December 24, 1998 the Appellants filed an ex-parte application to have the Writ renewed. Leave was also sought to file the Statement of Claim and to the serve both Statement of Claim and Writ.

6 On January 11, 1999 an order was made by Orr J., on the ex-parte application renewing the Writ of Summons. The learned judge granted leave to file the Statement of Claim. He also extended time for service of the Writ and Statement of Claim on ALPART within 30 days of the 11 ^th January 1999. This meant that service should be effected on February 10, 1999. The Statement of Claim was not filed until February 10, 1999 and the Writ was not sent for service on ALPART by registered post until February 10, 1999.

7 On March 25, 1999 ALPART filed an application to set aside service of the Writ on the basis that the document was not served within the time stipulated by the rules or the Order of the Court. ALPART further contended that the Writ had been served outside the limitation period. The Postmaster General had deposed that the ordinary course of post is deemed to be two (2) days and that in fact a letter posted from Kingston to Manchester (the parish in which ALPART carries on business) on the 10 ^th February 1999, would not have reached its destination on the same day.

8 In view of the fact that the Appellants had served the Writ of Summons outside the limitation period and to avoid the matter being struck out, the Respondent accepted $850,000.00 from ALPART in settlement of the claim filed in 1996. He has contended that he was forced to compromise his claim against ALPART and had only recovered a portion of what he would have obtained in the suit. He. therefore filed a claim against the Appellants seeking damages for negligence. The Respondent contended that because of the Appellants' negligence he had lost the opportunity to pursue his claim against ALPART.

9 The Appellants failed to file an acknowledgement of service of the Claim and statement of defence within the stipulated time so judgment in default was eventually entered against them. Thereafter, they filed an application to have the default judgment set aside but as I have said before that application was refused.

The Issues

11 The crucial issue in this procedural appeal is whether or not Brooks J, had properly exercised his discretion when he refused to set aside a regularly entered judgment. In the well known judgment of Evans v Bartlam [1937] 2 All ER 646, Lord Wright sitting in the House of Lords said at page 654 of the judgment:

"It is clear that the Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction, unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that, if the judge had jurisdiction, and had all the facts before him, the Court of Appeal cannot review his order, unless he is shown to have applied a wrong principle".

The present application fell for consideration under Part 13.3 of the Civil Procedure Rules 2002 (the CPR). No issue was joined on the question of whether the application was made promptly or whether the Appellants had given sufficient reasons explaining the circumstances within which judgment came to be entered. The sole issue therefore for decision by the learned judge was whether or not the Appellants had a real prospect of successfully defending the claim brought against them.

12 I have borne in mind the grounds of appeal filed, and the following issues therefore arise for consideration:

Issues (a), (b) and (e)

• (a) Whether the Respondent had suffered any loss?

• (b) Whether the Respondent had lost something of...