Lloyd Kerr (T/A Empire Supermarket) v Christene Myers
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Sinclair-Haynes JA,P Williams JA (AG) |
| Judgment Date | 25 November 2016 |
| Neutral Citation | JM 2016 CA 102 |
| Docket Number | APPLICATION NO 47/2016 |
| Court | Court of Appeal (Jamaica) |
| Date | 25 November 2016 |
[2016] JMCA App 31
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Brooks JA
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Miss Justice P Williams JA (AG)
APPLICATION NO 47/2016
And
Kevin Williams and Mrs Kimberley McDowell instructed by Grant, Stewart, Phillips & Co for the applicants
Joseph Jarrett instructed by Joseph Jarrett & Company for the respondent
In 2002, with the introduction of the Civil Procedure Rules, a regime was established whereby it was envisaged that civil cases originating in the Supreme Court would be dealt with justly. Several cases since that time have emphasised that cases compete for the scarce resources of the court and therefore litigants should be mindful not to abuse the time offered to them by the court for the just disposal of their respective cases (see for example Commissioner of Lands v Homeway Foods Ltd and Another [2016] JMCA Civ 21 at paragraphs [50] and [119]).
The present case is one in which the applicants, Mr Lloyd Kerr and Chrisryon Limited have not been mindful of that restriction. The circumstances leading to their present application for permission to appeal a judgment of Master Harris, which is dated 15 February 2016, is an example of their disregard.
On 30 March 2012, Ms Christine Myers was injured at a supermarket at Portmore Pines, in the parish of Saint Catherine. She was employed at the supermarket. The name of the supermarket is Empire Supermarket. Curiously, that name has been used by both of the applicants as a trading name. Mr Kerr first registered that name in 1981 (paragraph 5 of the affidavit of Christene Myers filed on 13 December 2013). Chrisryon Limited (hereafter called Chrisryon), although registered as a limited liability company in 1982, also registered Empire Supermarket as a trading name in 2010 (pages 107 and 108 of the record of appeal). Mr Kerr is the managing director of Chrisryon.
In October 2012, Ms Myers filed a claim in the Supreme Court, naming both Mr Kerr and Chrisryon as defendants thereto. The applicants failed to file an acknowledgement of service within the stipulated time and in October 2013 a judgment in default of acknowledgement of service (dated 11 December 2012) was entered against them.
Although they do not dispute that Ms Myers is entitled to recover damages for her injuries, the applicants have sought to set aside the default judgment. They applied, in an application for court orders filed on 18 May 2015, to be allowed to enter a defence as to quantum. They now assert that Mr Kerr is not a proper party to the claim and that Chrisryon, although admitting liability, would like to be able to test Ms Myers' claim with respect to the quantum of damages to which she is entitled.
They have, however, not been diligent in their approach. At least three applications were made in the Supreme Court with respect to the setting aside of the judgment. In two of them, the applicants failed to attend at the allotted time and a decision, adverse to them, was made in their absence. Their application to set aside the default judgment finally came on before Master Harris, who, after hearing both parties, dismissed the application and refused leave to appeal. The orders made by the learned Master are:
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“1. The Application to Set Aside Default Judgment is refused
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2. The Application to enter judgment on admission is refused.
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3. Permission to enter Defence as to quantum is refused.
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4. Permission to remove the 1 st Defendant as a party to the proceedings is refused.
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5. Matter to proceed to assessment of damages.
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6. Leave to appeal refused
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7. Costs of this application to the claimant to be taxed, if not agreed.
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8. Applicant's Attorneys-at-Law to prepare, file and serve this order.”
It is from that decision that the applicants now seek permission to appeal.
Counsel for Ms Myers, Mr Jarrett, submitted that the application for leave to appeal was filed out of time and therefore the application was not properly before the court. He accepted that although the document containing the written reasons for judgment of Master Harris is dated 15 February 2016, it was in fact handed down to the parties on 16 February 2016. Nonetheless, he argued, the present application, having been filed on 2 March 2016, was filed out of time. He submitted that the last date for filing the application was 1 March 2016.
Mr Williams, on behalf of the applicants, submitted that the application had been filed within the time specified by rule 1.8(1) of the Court of Appeal Rules 2002 (CAR).
The issue raised by Mr Jarrett turns on an interpretation of the term “within 14 days of the order” as used in rule 1.8(1) of the CAR. The rule states:
“Where an appeal may be made only with the permission of the court below or the court, a party wishing to appeal must apply for permission within 14 days of the order against which permission to appeal is sought.” (Emphasis supplied)
The issue was recently analysed in Royal Caribbean Cruises Ltd and Another v Access to Information Appeal Tribunal [2016] JMCA App 19. Although, in that case, the court was considering rule 56.4(12) of the Civil Procedure Rules 2002 (CPR), the relevant part of that rule is materially indistinguishable from rule 1.8(1) of the CAR. Rule 56.4(12) states:
“Leave is conditional on the applicant making a claim for judicial review within 14 days of receipt of the order granting leave.” (Emphasis supplied)
By a majority, the court decided in Royal Caribbean Cruises that when the rule stipulated that an act should be done “within” a number of days, under the principle guiding “clear days” as used in the CPR and CAR, it was only the first day that ought not to be counted for the purposes of calculating the time for performing the act, so that the act ought to be done no later than the 14 th day after the triggering event. In this case, the triggering event was the handing down of Master Harris' judgment. That was done on 16 February 2016. Starting counting on 17 February 2016, the 14 th and last day for complying with rule 1.8(1) of the CAR was 1 March 2016. The applicants had therefore filed their application out of time. Having been filed out of time, it is therefore ineffective (see Evanscourt Estate Company Limited v National Commercial Bank Jamaica Limited SCCA No 109/2007 Application No 166/2007 (delivered 26 September 2008 at page 5)). There is no application for an extension of time and therefore that should be the end of the matter, and the present application should fail.
Despite the procedural defect, there is another basis on which the applicants ought not to be granted permission to appeal. The test for determining whether permission to appeal should be granted is whether the applicant has a real chance of success in the proposed appeal. Rule 1.8(7) of the CAR stipulates the test:
“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.” (Emphasis supplied)
The CPR does not provide, as does the Civil Procedure Rules of England and Wales, for setting aside a default judgment for “some other good reason” (rule 13.3(1)(b)).
The issue to be determined in the proposed appeal is whether the learned Master can be faulted in the exercise of her discretion in the application that was before her. In undertaking the task of convincing this court that the learned Master was in default of her duty, the applicants have an uphill task. This court has, on a number of occasions, pointed out that it will not lightly disturb a decision in which the tribunal in the court below was exercising its discretion. In The Attorney General of Jamaica v John Mackay [2012] JMCA App 1, Morrison JA (as he then was) set out this court's approach at paragraph [20] of his judgment (with which the other members of the panel agreed). He said:
“This court will therefore only set aside the exercise of a discretion by a judge on an interlocutory application on the ground that it was based on a misunderstanding by the judge of the law or of the evidence before him, or on an inference — that particular facts existed or did not exist — which can be shown to be demonstrably wrong, or where the judge's decision ‘is so aberrant that it must be set aside on the ground that no judge regardful of his duty to act judicially could have reached it’.”
In taking that approach, the court adopted, as being valid in our jurisdiction, the position taken by the House of Lords in Hadmor Productions Ltd and others v Hamilton and others [1982] 1 All ER 1042. Morrison JA said at paragraph [19] of his judgment:
“…the proposed appeal will naturally attract Lord Diplock's well-known caution in Hadmor Productions Ltd v Hamilton [1982] 1 All ER 1042, 1046 (which, although originally given in the context of an appeal from the grant of an interlocutory injunction, has since been taken to be of general application):
‘[The appellate court] must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently.’”
In The Attorney General v John Mackay the court was considering an application for permission to appeal.
In this case the learned Master was asked to set aside a regularly entered judgment in default of appearance. The other major requests in the application, which was filed on 18 May 2015, was for the applicants to be allowed to enter a defence as to quantum and that Mr Kerr be removed as a party to the proceedings.
The learned Master set out the...
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Westmoreland Parish Council, Charles Beharie and Opal Beharie v Errol Bacchas
...and warranted the court's refusal to extend time. In Lloyd Kerr (T/A Empire Supermarket) and Chrisryon Limited v Christene Myers [2016] JMCA App 31, I pointed out at paragraph [115] that: “The case, The Commissioner of Lands v Homeways [sic] Food[s] Ltd and Stephanie [sic] Muir [2016] JMCA ......