Jephtah Davis v Roy Marshall

• Jurisdiction: Jamaica
• Judge: Master A. Thomas
• Judgment Date: 24 October 2017
• Neutral Citation: [2017] JMSC Civ 161
• Docket Number: CLAIM NO. 2012 HCV03802
• Court: Supreme Court (Jamaica)
• Date: 24 October 2017

Between

Jephtah Davis

Claimant

and

Roy Marshall

Defendant

[2017] JMSC Civ 161

Master A. Thomas (AG)

CLAIM NO. 2012 HCV03802

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

SUBSTITUTED SERVICE — APPLICATION TO SET ASIDE SUBSTITUTED SERVICE — DEFAULT JUDGMENT — INSURER SAYING THEY ARE UNABLE TO CONTACT INSURED — TESTS TO BE APPLIED

Cases Mentioned:

Moranda Clarke v. Gibson and Ranger [2015] JMSC Civ 48 – Insurance Company of the West Indies Ltd. and Allen v. Mervis Nash and Ors [2011] JMCA Civ. 33.

Legislation:

CPR 5.13, 5.19, 11.16 and 26.1.

Ms. Suzette Burton-Campbell instructed by Burton-Campbell & Associates for the Applicant.

Ms. Sudine Riley instructed by Kinghorn & Kinghorn for the Respondent.

Background

1 This is an application by Advantage General Insurance Company to set aside an order for substituted service and default judgment. The Claimant, Mr. Jephtah Davis, claims against the Defendant, Roy Marshall, damages in negligence for personal injuries. The substance of his claim is that on the 28 ^th of August 2006 he was a passenger in a motor vehicle registered 7775 (EK) travelling along the Spanish Town By Pass when motor vehicle registered PB 6031, owned by the Defendant, crashed in the rear of the motor vehicle in which he was travelling.

2 He alleges that he received injuries to his head, moderate pain in his neck, tenderness in his left shoulder, moderate spasm and tenderness in his lower back.

3 On the 20 ^th of May 2013, the Claimant made an application for substituted service for service to be effected on Advantage General Insurance Company, who was the insurer of the Defendant at the time of the accident. The grounds of application state:

• (i) The Claimant could not locate the Defendant in order to effect personal service on him.

• (ii) Service on Advantage General Insurance Company was likely to bring the contents of the Claim Form and Particulars of Claim to the attention of the Defendant.

4 On the 8 ^th of December 2014, an order for substituted service on Advantage General was made by Master Bertram Linton (as she was then). On the 14 ^th of April 2015, service was effected on Advantage General in accordance with the order for substituted service made on the 8 ^th of December 2014. On the 22 ^nd of May 2015, this application was filed by the Applicant, Advantage General. The hearing was set for the 13 ^th of April 2016. On the 8 ^th of July 2015, Judgment in Default was entered in favour of the Claimant.

5 On the 27 ^th of August 2015, another application was filed along with an Acknowledgment of Service essentially asking for the same relief. No hearing date was indicated in the notice of that application.

6 On the 13 ^th of April 2016, the matter that was filed on the 22 ^nd of May came up for consideration on the scheduled date. There were several adjournments. The matter is now being heard.

7 The Applicant is seeking the following orders;

• (i) Permission to be heard.

• (ii) Extension of time to file this application.

• (iii) The Order for substituted service made by Master Bertram Linton on 8 ^th December 2014 be set aside.

• (iv) Service of the Claim Form and Particulars of Claim under the order for substituted service be set aside.

• (v) That all proceedings flowing from the service of the document be set aside.

• (vi) Cost of the application be granted to the Applicant.

The main ground of their application is that they are unable to locate the Defendant to bring the Claim Form and Particulars of Claim to his attention.

Submission by Ms Suzette Campbell on behalf of the Applicant

• (i) The essence of the order for substituted service is that the Claimant was permitted to serve the Claim Form and Particulars of Claim on the insurers.

• (ii) The basis of the grant of that application is that the insurers were in a position to bring the documents to the attention of the Defendant.

• (iii) The affidavit of Ms Nesbeth sets out the efforts made and indicates to the court that the Defendant has not been found.

• (iv) The Applicant employed an investigator to locate the Defendant and the last thing he was told was that the Defendant is off the island. The essence of the application is that the Claim Form and Particulars of Claim have not been brought to the attention of the Defendant.

• (v) Once it is shown that the insurers took reasonable steps to locate the Defendant without success then the order should be set aside. (In support of this point, she relies on the authority of the Insurance Company of The West Indies Ltd and Shelton Allen v Mervis Nash and Ors [2011] JMCA Civ 3.)

• (vi) The issue of service is crucial. The matter ought not to go further if it is shown that the person was not served. Service should be personal service unless there is good reason not to do so. It is unfair for the matter to proceed when it has not been brought to the attention of the Defendant. (She relies on Taylor v. Metropolitan Management [in the Supreme Court of Jamaica] 2007 HCV 0938; and Tarzan Mighty v Michael Wilson and Ors. [In the Supreme Court of Jamaica] CL 1999 M188.)

• (vii) The delay was based on the steps the Applicant had to take to locate the Defendant.

Submissions

Submission by Ms Suzette Campbell on behalf of the Applicant

Submissions on behalf of the Respondent

8 Ms Riley gave very lengthy written submissions. However, I will seek to highlight those that are relevant to the issues that I must determine.

• (i) The Applicant was made aware of this Claim since 2012; it is now unreasonable to advance the position that they now cannot locate the Defendant.

• (ii) The fact that the insurers upon whom an order was validly made cannot find their client does not render the order in itself invalid. The Applicant must satisfy the court that the efforts made to locate the insured have been so comprehensive that there is no way that the contents of the Claim Form and Particulars of Claim can be brought to the attention of the Defendant.

• (iii) The investigator visited the known address of the Defendant and was advised by a person who identified herself as the Defendant's wife that the Defendant was out of the jurisdiction without a specific date of return.

• (iv) The court must therefore look carefully at what it means to bring a Claim to the attention of a Defendant or in the alternative what reasonable steps could be taken to follow up on the information garnered on the visits made.

• (v) The Affidavit of Ms. Nesbeth is wanting at the least and insufficient at the most. The information that was obtained could have permitted the investigators to explore other methods of locating the Defendant such as asking persons in and around that address.

• (vi) Having ascertained from the Defendant's wife that he was out of the jurisdiction at the very least, further follow up visits could have been made.

• (vii) In all the circumstances, the efforts made by the Applicant were grossly insufficient.

• (viii) Delay in such proceedings breeds prejudice. The application to set aside an order, for which notice of the application was not given to the Respondent as required by Rule 11.16 (2) must be filed 14 days after the date on which the order was served on the Respondent. The nature of this Rule is mandatory. The application ought to be refused. (She refers to Moranda Clarke v Dion Marie Godson and Donald Ranger Claim No. 2013 HCV 03117.) These timelines are critical in determining the instant application. Particularly in the context of the claim being statute barred as at August 2012.

• (ix) To allow such an application to succeed cannot be in the best interest of justice and the furtherance of the overriding objective of the Rules. No explanation or evidence has been provided for the delay in the filing of the application. This is a further basis for the denial of the application.

• (x) This application should be refused in the interest of justice. AGIC has failed to satisfy the requirement outlined in the Shelton Allen case.

• (xi) Having been served with the Formal Order, the Claim Form and Particulars of Claim in April 2015, AGIC has done nothing for a period of one year. No explanation has been given for this inordinate delay. This delay will result in irreparable damage to the Claimant, if the court were to accede to this very late application, as not only would the Claim Form have expired but the limitation period to pursue this matter would also have expired.

Issue

9 The issues which I have to address are:

• (i) Whether the failure of the Applicant to file this application within the time mandated by the rules is a bar to them being heard.

• (ii) Whether service of the Claim Form and Particulars of Claim on the Applicant was likely to enable the Defendant to ascertain the contents of the documents.

The Law

The Civil Procedure Rules (hereinafter referred to as the Rules) set out the procedure for applying for the setting aside of an order made on an application without notice. The procedure is governed by Rule 11.16.

Rule 11.16 (1) states ,

“A respondent to whom notice of an application was not given may apply to the court for any order made on the application to be set aside or varied and for the application to be dealt with again.”

Rule 11.16 (2) states,

“A respondent must make such an application not more than 14 days after the date on which the order was served on the respondent.”

Part 5 of the Rules stipulates the conditions to be satisfied in order for service alternative to personal service to be deemed good service.

Rule 5.13 reads:

• “(1) Instead of personal service a party may choose an alternative method of service.

• (2) Where a party —

  • (a) chooses an alternative method of service; and

  • (b) the court is asked to take any step on the basis that the claim form has been served, the party who served the claim form must file evidence on affidavit proving...