Manning (Donald) v Clifford Edmond

• Jurisdiction: Jamaica
• Judge: Sinclair Haynes J
• Judgment Date: 21 September 2007
• Judgment citation (vLex): [2007] 9 JJC 2101
• Court: Supreme Court (Jamaica)
• Date: 21 September 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

DONALD MANNING

CLAIMANT

AND

CLIFFORD EDMOND

DEFENDANT

CIVIL PROCEDURE - Old proceedings - Application of transitional rules

Sinclair Haynes J

1 On the 18 ^th April 2001 Interlocutory Judgment in Default of Appearance was entered against the defendant. The claimant obtained an order to proceed to Assessment of Damages on the 29 ^th November 2001. The matter was set down for Assessment of Damages on the 2 ^nd of November 2004. On the 9 ^th November, the defendant appeared and the matter was adjourned to the 9 ^th November 2005. The defendant applied to set aside the judgment and has since raised a preliminary objection that the court has no locus standi to deal with this matter because the matter has been automatically struck out by virtue of the claimant's non compliance with rule 73.4 (3).

2 Submissions by Miss Grace Ann Cameron-Small on behalf of Defendant/Applicant

3 Miss Grace Ann Cameron-Small submitted that the defendant's failure to comply with part 73 of the Civil Procedure Rules (CPR) results in the automatic striking out of the matter.

4 The claimant's action falls within the category of actions defined by the CPR as old proceedings since no trial date was set within the time prescribed. The claimant failed to apply for Case Management Conference (CMC) before the 31 ^st December 2003. Consequently, the action was automatically struck out. The claimant relied on the case of Norma McNaughty v Clifton Wright and Others SCCA 20/2005. She further submitted that the claimant's failure to apply for restoration of his action within the prescribed period renders the court funtus officio.

5 Submissions by Mr. D. Adedipe

6 Mr. Adedipe submitted that Rule 73.3 (1) & (4) properly construed, only applies to old proceedings in which a trial date could be expected to be fixed. No trial date would be fixed in a matter where no defence had been filed. In the circumstances those rules do not apply to such matters. This case, he submitted, was one in which the time for filing a defence had long passed. A trial date would not be fixed because a default judgment had already been entered. Only a date was left to be set for Assessment of Damages. Further, he submitted, part 73 of CPR properly construed does not apply to a case in which judgment, whether default or otherwise has already been entered. The effect of the default judgment is to make a final determination between the parties as to liability. Whilst the judgment stands, the issue of liability is res judicata. He relied on the Privy Council decision of Strachan v The Gleaner Co. Ltd. Privy Council Appeal no. 22/2004 delivered on the 25 ^th July 2005 and Rhoden v Construction Developers Association SCCA no. 42/2002 delivered on the 18th March 2005 at pages 9–10.

7 Mr. Adedipe submitted that the claimant has a vested right flowing from the default judgment since liability has been established. He submitted that even if the CPR was a statute passed by Parliament, it could not be construed so as to deprive a party of a vested right.

8 He relied on Craies on Statute Law 7 ^th edition pages 321 and 401. He further submitted that if the transitional provision applies to a matter in which a default judgment had already been entered, the rule would be ultra vires as the effect of the rule would be to set aside a judgment. He submitted that the rules of court have no such power.

9 Ruling

10 Re: Application of Transitional Rule to...