Kurt Dunkley v Dwight Levy

• Jurisdiction: Jamaica
• Judge: Hutchinson Shelly, J
• Judgment Date: 13 January 2023
• Docket Number: CLAIM NO. SU2020CV03713
• Court: Supreme Court (Jamaica)

[2023] JMSC Civ 02

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2020CV03713

Between

Kurt Dunkley

Applicant

and

Dwight Levy

Respondent

Ms. Georgia Hamilton instructed by Mrs Kerry-Ann Sewell for the Applicant

Mr. Aon Stewart instructed by Knight, Junor and Samuels for the Respondent

Application for leave to appeal and for stay of proceedings — Relevant considerations — real prospect of success — risk of injustice — factors determining application for leave to apply and grant of stay

Hutchinson Shelly, J

INTRODUCTION

1 On August 30 ^th, 2022 the Applicant filed a notice of application in which he sought the following orders:

• 1. That he be granted leave to appeal the Order made by Ms. Justice A. Jarrett (Ag) on July 26, 2022.

• 2. That there be a stay of execution of the Order made on July 26, 2022, and the Assessment of Damages hearing fixed for September 22, 2022, pending the hearing of the Appeal.

• 3. Any further and other relief as this Honourable Court deems just.

2 The grounds on which the Applicant is seeking the following orders are as follows:

It is in these circumstances that the Defendant now seeks the Court's leave to appeal the order made herein.

• 1. That the learned judge erred when she found that the Defendant had not presented a good reason for permitting the matter to go by way of default.

• 2. The learned judge erred when she found that the Defendant's delay in filing the application to set aside the default judgment severely prejudiced the claimant.

• 3. That the learned judge misguided herself on the issue of prejudice and its application in setting aside default judgment.

• 4. That learned judge erred by failing to give sufficient weight to the fact that the Defendant had a defence with a real prospect of success.

3 The Application was supported by two affidavits sworn to by Kaedeen Davidson. In her affidavits, Ms. Davidson opined that the evidence which had been presented in support of the application to set aside default judgment disclosed a defence with a real prospect of success, as the Defendant alleged that the accident which is the subject of this claim, was caused by the Claimant driving from a minor road onto a major road and colliding with the Defendant's vehicle which was travelling along the major road.

4 She averred that based on the applicant/ defendant's evidence the delay in filing the Application to set aside default judgment was not inordinate and that the defendant had advanced a good reason why the acknowledgement of service was not filed within the time limited for doing so. Ms. Davidson made reference to the Assessment of Damages which had been scheduled for hearing on September 22, 2022 and indicated that it is her firm belief that if damages are assessed, the Defendant will be liable to pay significant damages in circumstances where he has a defence which has a real prospect of succeeding at trial. She also asserted that if the stay of execution of the Order made on July 26, 2022, is not granted and the assessment of damages is heard, the appeal would be rendered nugatory.

APPLICANT'S SUBMISSIONS

5 In very comprehensive submissions, Counsel for the Applicant acknowledged that the application was being made pursuant to Rule 1.8 of the Court of Appeal Rules (CAR), specifically 1.8(9) which states the test to be used by the tribunal when considering whether to grant leave to appeal. Counsel submitted that the rule provides that:

“The general rule is that permission to appeal in civil cases will only be given if the court or the court below considers that an appeal will have a real chance of success.”

6 Counsel made reference to the well-known authorities of Swain v Hillman [2001] 1 All ER 9 and Duke St John-Paul Foote v University of Technology Jamaica (UTECH) and Wallace [2015] JMCA App 27A in which the test stated above was enunciated. Counsel contended that the learned judge had erred when she found that the delay of 109 days (3.6 months) in filing the application to set aside the default judgment was so prejudicial to the claimant that it outweighed the defendant's right to a trial on the merits of the case as disclosed in his defence. It was also asserted that the learned judge erred when she found that the applicant's reason for permitting the entry of the default judgment was “not a good one” and had also misguided herself on the issue of prejudice and its application to the setting aside of default judgments.

7 Counsel highlighted the rules at Rule 13.3 of the CPR and the authorities of Victor Gayle v Jamaica Citrus Growers etal 2008HCV05707 and Administrator General for Jamaica v. Cool Petroleum Limited et al [2019] JMSC Civ 181 which examined the approach that should be taken by a Court to applications to set aside default judgment. Reference was also made to Blossom Edwards v. Rhonda Bedward [2015] JMSC Civ 74 in which the Court opined that a “ judge cannot make a moral judgment on the conduct of the defendant and use that as a basis for refusing to set aside the judgment.

8 Counsel argued that the application to set aside the judgment should only be refused where the delay is so gross or egregious as to result in an injustice to the claimant or to third parties. She again made reference to the Victor Gayle decision and submitted that in that case, the delay in making the application to set aside was more than one year yet despite finding that the defendant had not acted promptly and “ was in fact very tardy in applying to set aside the default judgment” the learned judge found that the “ delay was not so manifestly excessive.”

9 In respect of the relevant timelines, Counsel highlighted that the default judgment was served on the defendant's counsel on December 2, 2021. The matter was fixed for Case Management Conference on March 8, 2022, at which point the defendant indicated his intention to amend his application for extension of time to file its defence to include an application to set aside the default judgment. The defendant's application was subsequently filed on March 21, 2022. Counsel contended that these events occurred in less than a 4-month period and as such the delay was not egregious.

CLAIMANT'S SUBMISSIONS

10 In submissions made on behalf of the Claimant, Mr. Stewart helpfully outlined the chronology of events which he accepted required careful consideration.

• • On the 30 ^th of September 2020, the claimant filed a claim against the defendant seeking damages for negligence. The claim form and particulars of claim along with supporting documentation were served on the defendant on the 3 November 2020 (this date is disputed by the Defendant who states that service occurred on December 23 ^rd, 2020).

• • The claimant thereafter applied for Judgment to be entered against the defendant on the 4 ^th of January 2021. On the 18 ^th of February 2021, the defendant filed an acknowledgement of service indicating an intention to defend the claim.

• • On the 15 ^th of March 2021, the defendant's Attorneys-at-Law filed a Notice of Application for Court Orders to set aside Default Judgment along with an Affidavit in Support.

• • On the 27 ^th of September 2021, the Court refused the defendant's application on the basis that a default judgment had not been entered by the Registrar, therefore the application to set aside the default judgment was premature.

• • The defendant subsequently amended the application on the 21 March 2022 seeking an extension of time to file their defence. The application was supported by affidavit evidence. (This application was not given a date and the matter proceeded to a case management hearing for assessment when it was subsequently listed for the hearing of this application).

• • The application came on for hearing on the 9 June 2022 and 26 July 2022 when it was refused. It is from this ruling that the defendant makes the application before the Court.

11 Mr. Stewart agreed that Court of Appeal Rule (“CAR”) 1 .8 (7) outlines the applicable threshold for permission to appeal in civil cases. He also made reference to the decisions of Donovan Foote v Capital and Credit Merchant Bank [2012] JMCA App 1 and Swain v Hillman (supra) which examined the term, ‘real prospect of success.’

12 On the issue of whether there should be a stay of proceedings, Mr. Stewart submitted that the Court's jurisdiction to stay proceedings can be identified in the Civil Procedure Rule and in particular rule 26. 1 (2) (e) which provides;

26.1 (1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any enactment

(e) stay the whole or part of any proceedings generally or until a specified date or event;

13 Counsel made reference to the decision of Watersports Enterprises Limited v Jamaica Grande Limited, Grand Resort Limited and Urban Development Corporation, (unreported), Court of Appeal, SCCA No. 1 10/2008 Application No. 1 59/2008, delivered 4 February 2009, where Harrison J.A at para. [7] restated the established principle that unless the appellant can show that the appeal has some prospect of success, the Court should not grant a stay of execution pending the hearing of an appeal.

14 Mr. Stewart argued that in deciding whether to grant or refuse a stay the Court must consider, where the interests of justice lie, and that the holder of a judgment must not be lightly deprived of the fruits of his judgment. On the question of where the interests of justice lies, Counsel contended that the court must consider the real risks of injustice to one or both parties in recovering or enforcing the judgment at the determination of the appeal and the financial hardship to be suffered by the applicant if the judgment is to be enforced per the dicta of Brooks JA at paras [19]-[21] in United General Insurance Company v. Marilyn Hamilton [2018] JMCA App 5 and Phillips JA in Peter Hartigay...