Jarrett (Marcia) (Administratrix of the estate of Dale Jarrett, deceased) v South East Regional Health Authority and Others
| Jurisdiction | Jamaica |
| Judge | McDONALD-BISHOP, J (Ag.) |
| Judgment Date | 03 November 2006 |
| Judgment citation (vLex) | [2006] 11 JJC 0302 |
| Court | Supreme Court (Jamaica) |
| Date | 03 November 2006 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
CIVIL PROCEDURE - Default judgment - Setting aside
Default judgment - Application to set aside default judgment - test to be applied for setting aside default judgment - Whether application for default judgment should have been served on Crown - Whether leave of Court required to enter default judgment against the Crown - Judicature (Rules of Court) Act, s. 4(8)- Crown Proceedings Act, s. 29 - Civil Procedure (Amendment) Rules, (2006), r. 13. 3.
1. By this application, the defendants are seeking an order that judgment in default entered against them on the 8 th day of June, 2006 be set aside and that they be permitted to file their defence out of time.
2. The defendants have cited twelve grounds on which the application to set aside the default judgment is based. The kernel of the grounds are distilled for these purposes and condensed and outlined in the terms following.
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(i) The default judgment against the defendants was entered on 8 th June, 2006. However, none of the defendants was served with an application by the claimant to enter the judgment.
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(ii) The application to set aside the default judgment is made promptly and the claimant will, therefore, not be prejudiced as her claim is for an unspecified sum of money that is yet to be submitted or quantified.
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(iii) The defendants were not able to file an appropriate defence within the prescribed time of 42 days allowed by the Civil Procedure Rules (2002) (CPR) because the defendants require adequate instructions and also further information from the claimant in order to do so.
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(iv) There is a defence on the merits to include the fact that the claimant's claim pursuant to the Fatal Accidents Act is statute barred.
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(v) All the grounds considered in light of the overriding objective of the CPR deem it just and equitable in the circumstances to set aside the judgment and for permission to be granted to the defendants to file their defence.
3. The evidential support advanced in respect of these grounds is contained in the affidavit of Miss Annaliesa Lindsay to which a draft defence is exhibited. To this application, the claimant stands in strong opposition. The evidence in response and in opposition to this application is contained in the affidavit of Miss Taneisha Brown to which a draft affidavit of the claimant is exhibited. Before proceeding to a contemplation of the instant application, I deem it useful to provide a synopsis of the facts of the case and a brief chronology of the proceedings.
FACTUAL BACKGROUND
4. In or about March, 1999, the claimant's husband, Dale Jarrett, deceased, was admitted to the Kingston Public Hospital (KPH) to undergo a surgical procedure for removal of a tumour that had been diagnosed in his left kidney. The KPH falls under the management and control of the 1 st defendant. The 2 nd defendant was the doctor entrusted with the responsibility of the care, management and treatment of the deceased from 1998 when the deceased was referred to him in his private practice. The surgery at the KPH was performed on March 12, 1999 by the 2 nd defendant. The deceased's left kidney was removed during the surgery for testing.
5. A biopsy was to be performed on the tumour removed from the deceased's kidney to determine and to guide the future care, management and treatment of the deceased as well as to ensure that the proper diagnosis was made. The kidney with the tumour went missing after the operation. It was, therefore, not subject to the testing intended. The deceased continued to suffer pain in the same region of his body as before the operation. The pain increased in intensity.
6. By July, 1999, another diagnosis was made of a tumour in his T12 vertebrae. The deceased was advised to do further treatment in light of the presence of this tumour and the loss of the kidney specimen. The deceased did not do so as recommended. On March 8, 2000, he died. The immediate cause of death remains undisclosed in the statement of case.
7. The claimant, by claim form dated March 7, 2006, brought an action against the defendants pursuant to the Law Reform ( Miscellaneous Provisions) Act and the Fatal Accidents Act in her capacity as administratrix of the estate of her late husband. She has alleged in her statement of case that her husband died on 8 th March, 2000 "as a result of the negligent attention, treatment, care and/or diagnosis which the deceased received from the 1 st and/or 2 nd Defendant/ and or other servants and/or agents of the 1 st Defendant who are unknown" to her. It is her claim that this negligence caused the deceased's normal expectation of life to be shortened thereby resulting in his estate and near relations suffering loss and damage and incurring expenses.
CHRONOLOGY
8. The records and the undisputed evidence have revealed the following facts relative to these proceedings:
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(i) The claimant filed her claim form with accompanying particulars of claim on 7 th March, 2006.
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(ii) On 20 th March, 2006, the claim form with particulars of claim was served on the 3 rd defendant.
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(iii) On the 7 th April, 2006, the 3 rd defendant filed an acknowledgment of service on behalf of all the defendants.
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(iv) This acknowledgment of service was served on the claimant's attorneys-at-law on 7 th April, 2006.
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(v) On 8 th June, 2006, judgment in default of defence was entered for the claimant against the defendants.
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(vi) On 20 th June, 2006, the 3 rd defendant was served with an attested copy of a judgment against the three defendants in default of defence.
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(vii) On 23 rd June, 2006, the defendants applied by a notice of application for court orders to set aside this judgment.
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(viii) On 6 th July, 2006, the defendants were served with a notice of hearing of assessment of damages from the Supreme Court Registry dated the 27 th June, 2006 for hearing of assessment on 9 th November, 2006.
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(ix) On 13 th July, 2006, the defendants were served with an amended particulars of claim that included items of special damages not included in the original particulars of claim. The claimant has indicated in that amended particulars of claim that she intends to make further amendments to the particulars of claim as she is in the process of collating further details in relation to special damages. This would see an increase in the sum claimed for special damages.
THE LAW
9. The right of the defendants to make this application in the circumstances of this case and the power of the court to entertain it inhere in the provisions of the Civil Procedure (Amendment) Rules, 2006, r. 13.3 (1) that came into effect on September 18, 2006. It provides that the CPR (2002) has been amended to read:
"The court may set aside or vary a judgment entered under Part 12 if the defendant has a real prospect of successfully defending the claim"
Further, the said amended CPR (2006) at rule 13.3 (2) provides:
"In considering whether to set aside or vary a judgment under this rule, the court must consider whether the defendant has:
(a) applied to the court as soon as is reasonably practicable after finding out that judgment has been entered;
(b) given a good explanation for the failure to file an acknowledgment of service or a defence, as the case may be."
10. It is thus the principle that the primary test for setting aside a default judgment regularly obtained is whether the defendant has a real prospect of successfully defending the claim. The defence must be more than arguable to be such as to show a real prospect of success. This is a restatement of the principle in case law under the leading case of Alpine Bulk Transport Co. Inc v. Saudi Eagle Shipping Co. Inc. [1986] 2 Lloyd's Rep 22. It was also stated in that case that by this test, the court, in order to arrive at a reasoned assessment of the justice of the case, must form a provisional view of the likely outcome of the case if the judgment were set aside and the defence developed.
11. Since the test for summary judgment is in the same terms, I would adopt too the meaning ascribed to the words 'real prospect of success' in the context of summary judgment proceedings and say that the defence must have a 'real' as opposed to a 'fanciful' prospect of success and that 'real' is to be taken in its natural and ordinary meaning and so does not warrant any clarification or amplification: Swain v Hillman and another [2001] 1 All ER 91 applied. In fact, my adoption of this principle is by no means original as In E.D. and F. Man Liquid Products Ltd v Patel [2003] EWCA Civ. 472, the Times 18 April, 2003, the U.K. Court of Appeal confirmed that the tests for setting aside a default judgment is the same as the test for summary judgment.
12. From the provisions of the CPR and the relevant case law, I think it would be safe to argue that the considerations for the court, before setting aside a judgment regularly obtained, should involve an assessment of the nature and quality of the defence; the period of delay between the judgment and the application made to set it aside; the reasons for the defendants' failure to comply with the provisions of the rules as to filing of a defence and the overriding objective which would necessitate a consideration as to any prejudice the claimant is likely to suffer if the default judgment is set aside. Before proceeding to examine these issues...
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