Mark Brown v Attorney General of Jamaica and Det. Cons Wayne Wellington

• Jurisdiction: Jamaica
• Judgment Date: 29 March 2001
• Judgment citation (vLex): [2001] 4 JJC 0101
• Date: 29 March 2001
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

MARK BROWN

PLAINTIFF

AND

THE ATTORNEY GENERAL OF JAMAICA

1 ^ST DEFENDANT

AND

DET. CONS. WAYNE WELLINGTON

2 ^ND DEFENDANT

^st

CIVIL PROCEDURE - Interlocutory judgment - Leave to set aside judgment - Assessment of damages

1 IN CHAMBERS

2 This matter came on for hearing in Chambers on the 29 ^th day of March, 2001, by way of cross summonses, one on the part of the Plaintiff for an Order to proceed to assessment of damages, and the other hand, one on the part of the 1 ^st Defendant, to set aside the interlocutory Judgment in default of defence which had been secured by the Plaintiff. It was decided that the application to set aside and grant leave to file defence out of time should be heard first as, depending upon the outcome of that Summons, it might not be necessary for the other summons to be pursued. This course is consistent with that suggested as the appropriate one by Campbell J.A in Jamaica Record, Ricketts, Mayne, et al v Western Storage Limited [19901 27 J.L.R. 55 at page 57 Para H. After the hearing on March 29, 2000, I stated that in deference to the arguments advanced and the authorities cited by the parties, I would reserve judgment and hand down a written judgment. In furtherance of that undertaking, I now provide this decision.

3 This is yet another case where a citizen sues the state and for whatever reasons, a defence is not filed within the time limited for such filing and the plaintiff seeks to proceed to assess his damages. For the purposes of the summons, the history of the matter may be briefly stated.

4 On January 20, 2000, the Plaintiff filed a Writ of Summons against the defendants to recover damages for assault and battery, and for negligence, in relation to an incident which had purportedly occurred in Old Harbour on the 27 ^th day of October, 1998. The writ, together with the statement of claim, was served by the Plaintiff on the 1 ^st defendant on the 21 ^st day of January, 2000. Attempts to serve the second defendant appear to have been unsuccessful, and in the result, an Order had been made granting renewal of the writ, in the hope of serving the second defendant. The 1 ^st defendant entered an appearance on the 27 ^th day of January 2000, but thereafter failed or neglected to file a defence within the time allowed. Leave to enter interlocutory judgment against the first defendant was granted by the acting Master on October 2, 2000, and entered in the Judgment Binder at binder No: 725, Folio 453. It was pursuant to this Order that, on November 16, 2000, the Plaintiff filed a summons for order to proceed to assessment of damages. Meanwhile, on the 31 ^st day of October 2000, the first defendant had filed a summons to set aside interlocutory judgment. After some abortive attempts to have the matter heard, it finally came on for hearing before me on March 29, 2001.

5 The affidavit in support of the summons to set aside the interlocutory injunction was sworn by Yolande Lloyd-Alexander, Assistant Crown Counsel in the Attorney General's Chambers. The affiant in her affidavit admitted that the Director of State Proceedings had been served with the writ, that an appearance had indeed been entered on behalf of the Director of State Proceedings, but "that a defence had not been filed within time due to administrative difficulties in obtaining instructions in this matter". In light of comments which I make later, I wish to say that I accept that it is a reasonable inference from the passage quoted, that the failure to file the appropriate defence was not deliberate. The affidavit also contained the following paragraphs, to which I will also return later.

• 6. That a file has now been obtained and a defence drafted upon the instructions contained therein. A copy of the proposed defence is exhibited hereto and marked "YLA1".

• 7. That I am informed by the second-named defendant and verily believe that the first-named defendant has a good defence to this action.

• 8. That I am informed by the Second-named Defendant and do verily believe that the Defendant (sic) actions were reasonable and justified in the circumstance for the following reasons: -

  • a. The second-named defendant was in pursuit of the known gunmen;

  • b. The gunmen opened fire in the direction of the Second-named Defendant and the Second-named Defendant returned the fire.

  • c. The Plaintiff was an innocent bystander who received an injury as a result of the cross-fire.

6 A draft of a proposed defence was attached to the affidavit and this appeared to be consistent with the affidavit.

7 Similar circumstances, though not identical, were faced and considered by Karl Harrison J. (Acting, as he then was), in the case, Clyde Graham v The Attorney General and Donovan Mason, Suit No. C.L 1993/G110. As was stated by Harrison J. (Ag), in that case: "In relation to default of pleadings, section 258 of the Civil Procedure Code states:

"Any judgment by default, whether under this Title or under any other provisions of this law, may be set aside by the Court or Judge upon such terms as to costs or otherwise as such Court or Judge may think fit."

8 This section therefore gives the Court or Judge a discretion when it comes to setting aside of default judgments".

9 The learned judge referred to the leading case on this question, Evans v Bartlam (1937) 2 AER 646, and in particular, the judgment of Lord Atkin, the relevant and often-quoted portion of which is set out below.

"I agree that both RSC Order 13 r 10 and RSC Order 27 r 15 give a discretionary power to a judge in Chambers to set aside a default judgment. The discretion is in terms unconditional. The Courts have, however, laid down for...