Joseph Nanco v Anthony Lugg and B & J Equipment Rental Ltd

• Jurisdiction: Jamaica
• Judge: Mcdonald-Bishop, J
• Judgment Date: 02 July 2012
• Neutral Citation: [2012] JMSC Civ 81
• Docket Number: CLAIM NO. 2009 HCV 3449
• Court: Supreme Court (Jamaica)
• Date: 02 July 2012

Between

Joseph Nanco

Claimant

and

Anthony Lugg

1st Defendant

and

B & J Equipment Rental Limited

2nd Defendant

[2012] JMSC Civ 81

CLAIM NO. 2009 HCV 3449

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Default Judgment — Application to set aside judgment entered in default of defence — Prescribed notes to the defendant and form of defence not served with claim form — Acknowledgment of service filed with notice of intention to defend — No defence filed — Whether defendant submitted to jurisdiction of the Court — Whether waiver of irregularity in service of claim — Whether default judgment irregularly or regularly obtained -Conditions to be satisfied for setting aside default judgment — CPR, 8.16(1); 9.6; 12. 5; 13.2 (1) (b); 13.3; 26.9; 30.3

IN CHAMBERS

Mcdonald-Bishop, J

1 B & J Equipment Rental Limited, the 2 ^nd defendant and applicant in these proceedings, seeks an order by way of Notice of Application for Court Orders that Interlocutory Judgment in Default of Defence entered against it on November 17, 2009 be set aside.

2 The grounds on which the order is being sought are set out in the following terms:

(1) A condition in rule 12.5 of the Civil Procedure Rules, 2002 (‘CPR’) was not satisfied and as such there was a failure to file a defence by the 2 ^nd defendant.

(2) The 2 ^nd defendant was not served with the Prescribed Notes to the Defendant and a Form of Defence with the claim form in accordance with CPR, 8.16(1).

(3) Alternatively, the 2 ^nd defendant has a real prospect of successfully defending the claim.

(4) Alternatively, the 2 ^nd defendant has a good explanation for the failure to file a defence.

(5) Alternatively, the 2 ^nd defendant has applied to the court as soon as reasonably practicable after finding out that judgment had been entered.

BACKGROUND FACTS

3 In or around August, 2004, Mr. Joseph Nanco, the claimant, was employed as a Cat Scraper Operator to the 2 ^nd defendant. Mr. Anthony Lugg, the 1 ^st defendant, was also employed to the 2 ^nd defendant as a Cat Scraper Operator. On August 21, 2004, the 1 ^st defendant was assigned duties to operate a bull dozer to anchor the Cat Scraper being operated by the claimant at Harmans, Manchester. During the operation, the Cat Scraper crashed resulting in bodily injuries to the claimant.

4 In 2009, following failed negotiations, the claimant initiated proceedings against the 1 ^st and 2 ^nd defendants for damages for negligence and against the 2 ^nd defendant for breach of statutory and common law duties as his employer. He alleges that he is now a paraplegic as a result of the incident.

5 The claim form, particulars of claim along with an acknowledgment of service form were served on the 2 ^nd defendant by registered post. The 2 ^nd defendant, through its attorneys—at—law, Pearson & Company, subsequently filed an acknowledgment of service of the claim. On that acknowledgement of service, it was indicated that there was an intention to defend the claim. No defence, however, was eventually filed and no request for an extension of time to do so was made.

6 On November 17, 2009, the claimant obtained judgment in default of defence against the 2 ^nd defendant. On August 10, 2010 Brooks, J (as he then was) awarded the claimant interim payment of six million dollars ($6,000,000) on account of damages and also ordered that the matter proceeded to hearing of assessment of damages on October 27, 2010. Mr. Anthony Pearson of Pearson & Company appeared for the 2 ^nd defendant at that hearing.

7 On November 12, 2010, damages were assessed and final judgment entered for the claimant. Mr. Pearson was present for the 2 ^nd defendant at the assessment hearing where judgment was reserved but was absent when the final judgment was entered. The record reveals, however, that the final judgment was mailed to the 2 ^nd defendant by registered post and on January 20, 2011, an order for seizure and sale was made. On January 25, 2011, the bailiff for the Corporate Area executed the order for seizure and sale on the 2nd defendant. It is the action of the bailiff that had spurred the 2 ^nd defendant into action to seek to set aside the default judgment and for permission to defend the claim.

The evidence in support of the application

8 The main evidence in support of the application to set aside the judgment comes from Miss Tricia Bennett, the 2 ^nd defendant's managing director. In so far as is immediately relevant, she stated the following: On or around July 16, 2009, the 2 ^nd defendant was served only with a claim form, a notice to the defendant, an acknowledgment of service form and particulars of claim. Upon receiving these documents, she immediately contacted the 2 ^nd defendant's attorneys-at-law, Pearson & Company, and sent all the documents served on her for Mr. Anthony Pearson to represent the company in the matter.

9 Mr. Pearson had already been involved in the matter from the stage of negotiations and had previously been sent a letter by the claimant's attorneys-at-lawrelating to a claim by the claimant. The 2 ^nd defendant had also sent a letter to the claimant's attorneys advising them to deal with Mr. Pearson in relation to the matter and that all relevant information had been forwarded to him. Mr. Pearson was aware at all material times that the 2 ^nd defendant intended to challenge any claim filed by the claimant and an investigators report dated March 9, 2005 was provided setting out the defence in the matter, among other things. The instruction of the 2 ^nd defendant, at all times, was to defend the claim in the light of the investigators findings.

10 The 2 ^nd defendant was repeatedly assured by Mr. Pearson that the matter was being dealt with and that it would have had its day in court. The company was not aware of the court's procedural requirements apart from the duty to acknowledge service (which was included in the limited information in the documents served in July, 2009), that a judgment had been entered in the matter, or of the fact that there were hearings in the matter.

11 The default judgment entered against the 2 ^nd defendant was discovered when the bailiff visited its office on January 25, 2011 and marked items for seizure and sale. It was then that it came to the attention of Miss Bennett that a judgment had been entered in the claim and that the bailiff was executing an order for seizure and sale. Mr. Pearson was contacted immediately and a meeting scheduled for the same day where he insisted that the document the bailiff had was a claim form and not a judgment. She was later advised that the matter had actually gone as far as assessment of damages.

12 The 2 ^nd defendant's business has been tremendously affected by the recession since December 2008 as it relies entirely on the bauxite industry which has suffered tremendously since the global meltdown. The 2 ^nd defendant is not in a financial position at this time to replace the items marked for seizure and the effect of seizure and sale would ruin the company. She has been advised by the 2 ^nd defendant's attorney-at—law that it has a defence with real prospect of succeeding, a draft of which is exhibited to her affidavit.

13 The 2 ^nd defendant also relies on the affidavit evidence of Jason Jones, an associate in the offices of the 2 ^nd defendant's attorneys-at-law in these proceedings. His evidence is to the effect that a search of the records of the court revealed that the prescribed notes for the defendant and the form of defence did not accompany the claim form as required by the rules. The purpose of his evidence is to confirm that the 2 ^nd defendant was not served with the documents claimed by the 2 ^nd defendant to have been omitted from service.

The claimant's response

14 The claimant has strongly resisted the application and through his affidavit evidence and of that of counsel, Mr. Pierre Rogers, he seeks to show, among other things, that the 2 ^nd defendant knew of the judgment and the procedural requirements because it was served at all points throughout by service on its attorneys-at-law as well as by service by registered post to its registered office. Furthermore, that the requirement for the 2 ^nd defendant to file a defence would have been brought to its attention by the notice to defendant that was served with the claim form. He also produced evidence to make the suggestion that the 2 ^nd defendant's averment of financial ruin ought not to be accepted as true. In the end, the case for the claimant is that there is no proper basis, in fact or in law, on which the application to set aside should be granted.

DISCUSSION AND FINDINGS

Whether the judgment is irregular

15 The first ground proffered by the 2 ^nd defendant, as a basis for the judgment to be set aside, is that the judgment is irregular due to non-compliance with rule 12.5. By way of reminder rule 12.5 provides, in part:

12.5 the registry must enter judgment at the request of the claimant against a defendant for failure to defend if-

• (a) the claimant proves service of the claim form and particulars of claim on the defendant; or

• (b) an acknowledgment of service has been filed by the defendant against whom judgment is sought; and

• (c) The period for filing a defence and any extension agreed by the parties or ordered by the court has expired;

• (d) that defendant has not-

  • (i) filed a defence within time to the claim or any part of it (or such defence has been struck out or is deemed to have been struck out under rule 22.2(6));

  • (ii) …

  • (iii) …

• (e) there is no pending application for an extension of time to file the defence.

16 Mr. Jones' contention, on behalf of the 2 ^nd defendant, is that the 2 ^nd defendant was not served in accordance with CPR 8.16 (1). He contended that the claimant had failed to serve with the claim form, the...