Loveleen Morgan-Taylor v Metropolitan Management Transport Holdings Ltd

• Jurisdiction: Jamaica
• Judge: Lawrence-Beswick J
• Judgment Date: 24 November 2011
• Judgment citation (vLex): [2011] 11 JJC 2401
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. HCV 0938/2007
• Date: 24 November 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 0938/2007

BETWEEN

LOVELEEN MORGAN-TAYLOR

CLAIMANT

AND

METROPOLITAN MANAGEMENT TRANSPORT HOLDINGS LIMITED

DEFENDANT

S. Campbell instructed by Campbell & Campbell for Applicant /Defendant

O. Nelson instructed by K.C. Neita & Co. for Respondent/Claimant

Setting aside Judgment in Default of Acknowledgement of Service – Service on limited company at Registered Office

Lawrence-Beswick J

1 Mrs. Loveleen Morgan-Taylor (Mrs. Taylor) alleges that she suffered injury in a bus operated by Metropolitan Management Transport Holdings Limited (Metro). The quantum of damages due to her was assessed. She sought to recover the amount but Metro has not paid. The bus was insured by United General Insurance Company Limited, now Advantage General Insurance Company (AGI) and AGI pursuant to its right of subrogation has filed a Notice of Application on behalf of Metro seeking:

• a. to set aside the default judgment which was entered in this matter;

• b. to set aside all proceedings which flowed from it; and

• c. to stay execution of the final judgment dated May 4, 2009.

2 The ground of the application is that there was no service on Metro of the Claim Form and Particulars of Claim.

Background

3 Mrs. Taylor filed suit on February 26, 2007 against Metro claiming that on November 16, 2003, she had been a passenger in a bus driven negligently by Metro's agent and/or servant and had been injured as a result of his sharp application of the bus' brakes.

4 The Court documents filed to commence proceedings were sent by registered post on March 2, 2007 to the registered office of Metro at 36 Trafalgar Road, Kingston 10.

Metro filed no Acknowledgement of Service or Defence. On June 13, 2007, Interlocutory Judgment in Default of Acknowledgement of Service was entered. Damages were assessed on May 4, 2009.

5 Mrs. Taylor attempted to enforce her judgment against Metro's insurers, AGI. AGI now seeks to set aside the judgment alleging that Metro had been denied the opportunity to defend the claim as the Claim Form had never been served on it, and it had intended to defend the claim.

Service at Registered Office

6 The first limb of the argument of AGI is that the address of 36 Trafalgar Road, Kingston 10 to which the court documents were allegedly sent, at the time of posting was no longer the registered office of Metro and therefore Metro was not served.

7 Affidavits indicate that on March 29, 2004, Cabinet decided that proceedings should start to wind up Metro, and therefore Metro no longer occupied premises at 36 Trafalgar Road.

8 However, it is undisputed that up to January 2011 Metro continued to appear on the Register of the Registrar of Companies as an active registered company having its registered office at 36 Trafalgar Road, Kingston 10.

It would follow therefore that service on Metro could be properly done if documents were sent to that address.

The Civil Procedure Rules 2002 (CPR) provides:

‘5.7 Service on a limited company may be effected -

a. by sending the claim form by …. prepaid registered post …. addressed to the registered office of the company ….’ and further that

‘5.19(1) A claim form that has been served within the jurisdiction by prepaid registered post is deemed to be served, unless the contrary is shown, on [21] days after the date indicated on the Post Office receipt.’

The initial ground filed that the service on Metro was incorrect because Metro no longer...