Malcolm, Sydney v Metropolitan Management Transport Holdings Ltd & Glenford Dickson

• Jurisdiction: Jamaica
• Judge: Mangatal.J.(Ag)
• Judgment Date: 21 May 2003
• Judgment citation (vLex): [2003] 5 JJC 2102
• Date: 21 May 2003
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. C.L. 2002/M225

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 2002/M225

BETWEEN

SYDNEY MALCOLM

PLAINTIFF

AND

METROPOLITAN MANAGEMENT TRANSPORT HOLDINGS LIMITED

1 ^st DEFENDANT

AND

GLENFORD DICKSON

2 ^nd DEFENDANT

CIVIL PROCEDURE - Interlocutory judgment - Setting aside - Leave to file and deliver defence - Whether defendants have a good defence

Mangatal.J.(Ag)

1 The application before me is by way of Notice dated 22nd April 2003, seeking the following orders:

• 1. The Interlocutory Judgment entered herein against the Defendants and all subsequent proceedings be set aside; and

• 2. For Leave to be granted to the Defendants to file and deliver their Defence within 14 days.

2 The grounds stated as the basis for the orders are as follows:

• (i) The Defendants have a good Defence upon the merits of the Plaintiff's claim and have a real prospect of successfully defending the claim;

• (ii) There has been no delay in law in applying to set aside the Default Judgment and filing a Defence or any inordinate delay therefore which has been prejudicial to the Plaintiff and inexcusable; and

• (iii) In the interest of justice and public policy leave should be granted to the Defendants to defend the claim.

3 The Application was supported by 3 Affidavits, viz. the Affidavit of Glenford Dickson the Supplemental Affidavit of Glenford Dickson and the Affidavit of Dawn Roberts, sworn to on the 22 ^nd April, 6 ^th May, and 24 ^th April 2003 respectively.

4 The Plaintiff s claim is in respect of personal injuries arising out of an accident on the 1 ^st October 2001, which he alleges was caused by the negligence of the Second Defendant, servant or agent of the owner of motor vehicle registration number PA 0205.

5 The Defence that is being raised by the Defendants is either that the collision was caused by an inevitable accident in that on the day in question, while the Second Defendant was lawfully driving, he was attacked frontally by several men, and in the peril and ordeal thereby created, he took evasive action by reversing. However, notwithstanding all reasonable care and skill, in the dilemna created the Second Defendant was unable to avoid the accident. In the alternative, the Defendants allege that the collision was caused or contributed to by the driver of the other vehicle in which the Plaintiff was traveling.

6 Counsel for the Respondent Miss Thomas opposed the application on the basis that the requirements of the Civil Procedure Code 2002, in particular Part 13.3 have not been satisfied. She submitted firstly that no good explanation for the failure to file a Defence has been provided. Secondly, although she accepted that the Court ought not to embark on a trial of the issues, the Court ought nevertheless to look at the proposed Defence. She submitted that a Defence with a good prospect of success is different from a Defence on the merits or an arguable defence.

7 Counsel referred to Butterworths Motor Claims Cases, 10th Edition, page 41 and to Charlesworth and Percy, 8th edition, paragraph 3-115 as to the meaning of inevitable accident. It was submitted that the Affidavit evidence of the Defendants did not disclose that other courses available could not have been utilized, which Counsel submitted is necessary for the defence of inevitable accident to be successfully raised

8 The...