Hyman (Kenneth) v Audley Matthews and Others [Consolidated Suits]

JurisdictionJamaica
Judge HARRISON, P. , K. HARRISON J.A: , McCALLA, J.A: , HARRISON, P:
Judgment Date08 November 2006
Neutral CitationJM 2006 CA 57
Judgment citation (vLex)[2006] 11 JJC 0802
CourtCourt of Appeal (Jamaica)
Date08 November 2006

JAMAICA

IN THE COURT OF APPEAL

BEFORE:
THE HON. MR. JUSTICE HARRISON, P THE HON. MR. JUSTICE K. HARRISON, J.A. THE HON. MRS. JUSTICE McCALLA, J.A
BETWEEN
KENNETH HYMAN
APPELLANT
AND
AUDLEY MATTHEWS
DERRICK MATTHEWS
RESPONDENTS
BETWEEN
THE ADMINISTRATOR GENERAL FOR JAMAICA (Administrator ad litem for the Estate of Walsh Anderson deceased)
APPELLANT
AND
AUDLEY MATTHEWS
DERRICK MATTHEWS
RESPONDENTS
David Batts instructed by Livingston, Alexander & Levy for appellant Hyman
Rudolph Smellie instructed by Daly Thwaites & Co., for appellant Administrator General
Maurice Manning & Miss Catherine Minto instructed by Nunes, Scholefield, DeLeon & Co., for the respondents

CIVIL PROCEDURE - Unless Order

CIVIL PROCEDURE - Default judgment - Setting aside

HARRISON, P
1

These appeals, heard together by an order made on 8 th January 2006, are from an order of Mcintosh, J on 17 th July 2003 by which the application of each defendant to set aside the judgment entered to extend time to file its defence, was refused. Costs were ordered to be paid to the respondents.

2

The action herein arose out of a motor vehicle accident on 28 th January 1997 when a motor vehicle owned by Kenneth Hyman, the first appellant, and driven by Walsh Anderson collided with a motor vehicle owned by Audiey Matthews, the first respondent, and driven by Derrick Matthews, the second respondent. The second respondent sustained personal injuries and the motor car he was driving was extensively damaged.

3

On 16 th January 2001 a writ and statement of claim were filed by the respondents claiming damages for negligence. On 15 th February 2001 the first appellant entered an appearance. On 27 th February 2001 he filed his defence denying liability on the ground that Anderson was driving the motor car, neither as his the first appellant's servant nor agent.

4

Anderson was never served. He died on 4 th February 1999.

5

On 20 th June 2001 by a consent order on a summons for directions, after close of pleadings, the respondents and the second appellant agreed that the estimated length of trial was two days and that the matter would be set down for trial within sixty (60) days. A certificate of readiness was filed by the respondents' attorneys-at-law on 21 st June 2001 and served on the appellant Hyman's attorney-at-law on 26 th June 2001. The trial date was consequently fixed for 10 th February 2003 in respect of the case against the second appellant.

6

On 18 th April 2002 on the application of the respondents an order was made appointing the Administrator General as Administrator ad litem for the estate of Walsh Anderson. Mr. Andrew Gyles, attorney-at-law was present, appearing on behalf of the Administrator General. No objection was raised to the order. An amended writ and statement of claim were filed on the Administrator General on 29 th April 2002. No defence thereto was filed by the Administrator General, the second appellant.

7

On 18 th June 2002 an "unless order" was made against the appellant Hyman for his failure to deliver answers to interrogatories sought by the respondents. The answers were ordered to be filed by 2 nd July 2002. On the latter date, no answers having been filed, the defence of the appellant Hyman was struck out and judgment entered against him in default of defence.

8

On 31 st July 2002 the said answers were filed and served on the respondents' attorneys-at-law on 2 nd August 2002. Further, on 22 nd October 2002 the appellant Hyman filed an application for an order to set aside the default judgment and for an order that the answers to interrogatories filed stand. The appellant Hyman contended that the delay was not intentional. He was initially off the island and then on business in rural Jamaica. He provided the answers albeit thirty (30) days late and he had a good defence to the action.

9

On 13 th September 2002 judgment in default of defence was entered against Administrator General, the second appellant. No defence had been filed nor was any application made for extension of time to file a defence.

10

On 30 th December 2002 the respondents served on the Administrator General a summons to proceed to assessment of damages.

11

On 22 nd January 2003 an order was made to proceed to assessment of damages on 10 th February 2003. Mr. Andrew Gyles was present on behalf of the Administrator General and voiced no objection. This order was served on the Administrator General on 24 th January 2003.

12

The trial date of 10 th February 2003 in respect of the appellant Hyman was still "in existence."

13

On 22 nd January 2003, the appellant Hyman's re-listed application dated 22 nd October 2002 to set aside the default judgment of 2 nd July 2002 was adjourned sine die.

14

On 10 th February 2003 on the application of the attorneys-at-law for the 2 nd appellant, the assessment of damages was adjourned in order that the 2nd appellant could pursue an application to set aside the judgment entered by default on 13 th September 2002. The trial of the action against the first appellant Hyman was also adjourned.

15

On 21 st February 2003 the Administrator General filed a notice of application to set aside the judgment entered on 13th September 2002. By affidavit dated 20 th February 2003, Mrs. Lona Brown, the Administrator General for Jamaica stated that she was told by Mr. Andrew Gyles, that the reason why no defence was filed was that:

  • (a) he assumed that the defence of the first defendant (Hyman) would "cover both the driver and owner of the vehicle," and

  • (b) he was unaware of the availability of a defence or the necessity to have explored the availability of a good defence.

16

On 17 th July 2003 D. Mcintosh, J heard both the application of the appellant Hyman filed on 22 nd October 2002 and the application of the appellant the Administrator General filed on 21 st February 2003 to set aside each default judgment and to extend time to file the defence and in the case of the appellant Hyman, in addition, to grant relief from the sanction and to treat the interrogatories as filed in time. The learned judge dismissed both applications and refused leave to appeal.

17

Leave to appeal was granted to the appellant Hyman by P. Harrison, J.A. (as he then was) on 8 th October 2003 and to the appellant the Administrator General by Cooke, J.A. on 29 th September 2003.

18

First Appellant Hyman

19

Mr. Batts for the appellant Hyman argued before us that the learned judge failed to consider that the appellant's delay in complying with the "unless" order to file the answers to the interrogatories was not intentional, that they were in fact filed by 31 st July 2002, albeit thirty (30) days late, that the late filing did not prejudice nor delay the trial fixed for 10 th February 2003 and that the appellant had a good defence to the action. The learned judge consequently, he concluded, did not give effect to the overriding objective of the Civil Procedure Rules 2002, and ought to have granted relief from sanctions and set aside the default judgment.

20

The writ and statement of claim having been filed on 16 th January 2001, and served, the appellant Hyman entered his appearance on 15 th February 2001 and filed his defence on 27 th February 2001. He was thereby quite prompt in satisfying the other procedural requirements that far.

21

His defence, denying liability, that the driver Walsh Anderson was not at the relevant time, driving as his servant or his agent, relied on the well known case of Avis Rent-a-Car Ltd v Maitland (1980) 32 W.I.R. 294 following Launchbury v Morgan [1971] 1 All E.R. 642. This if proven, is undoubtedly a good defence to the action.

22

The interrogatories delivered by the respondents and requiring answers thereto, all concerned the use by Anderson of the appellant Hyman's motor vehicle. The answers were ordered to be supplied by 2 nd July 2002 but were not filed until 31 st July 2002. The defence having been struck out on 2 nd July 2002 and a default judgment entered, the appellant Hyman, on 22 nd October 2002 applied to set aside the said judgment.

23

It is of significance to note, that the appellant Hyman's application on 22 nd October 2002 to set aside the default judgment, would have been governed by the old rules, the Judicature Civil Procedure Code Law ("the CPC") and not the current Civil Procedure Rules, 2002, which came into force on 1 st January 2003. That application, if heard then, would have been governed by section 676 of the CPC which permitted a court to enlarge time:

"... although, the application for the same is not made until after the expiration of the time appointed or allowed."

24

The said application would have been influenced by the approach of the discretion of the court then to "unless" orders in cases such as Samuel v Linzc Dresses Ltd [1980] 1 All E.R. 802, in which Roskill, L.J. at page 812, said:

"... the law today is that a court has power to extend the time where an 'unless' order has been made but not complied with; but that is a power which should be exercised cautiously... orders are made to be complied with..."

25

This Court in Dunscombe v Seaton [1989] 26 JLR 224, recognized the penalty that may arise, in default of such an order but, at page 227, said:

"... the clear policy of the law as evidenced by section 676 ... is that a litigant should be afforded every reasonable opportunity to come in to file documents and to be heard in any pending action."

26

In Hytec Ltd v Coventry City Council [1997] 1 WLR 1666, Ward, L.J. observed that the unless order was one of last resort failure to observe it would attract a sanction, "a necessary forensic weapon," and a defaulter would have to satisfy a court that such failure was...

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