Marks (Veronica) and Nicholas A. Brown v Loxley Thompson, Ernest Allen anad N&N Investment Ltd

• Jurisdiction: Jamaica
• Judge: Brooks J.
• Judgment Date: 22 March 2006
• Judgment citation (vLex): [2006] 3 JJC 2203
• Date: 22 March 2006
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. HCV0847 of 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV0847 of 2003

BETWEEN

VERONICA MARKS

1 ^ST CLAIMANT

AND

NICHOLAS A. BROWN

2 ^ND CLAIMANT

AND

LOXLEY THOMPSON

1 ^ST DEFENDANT

AND

ERNEST ALLEN

2 ^ND DEFENDANT

AND

N & N INVESTMENT LTD.

3 ^RD DEFENDANT

^st

^{nd rd}

Application to set aside Judgment in default of Defence Application to strike out statement of case

CIVIL PROCEDURE - Default judgment - Setting aside

CIVIL PROCEDURE - Judgment in default of defence - Striking out

Brooks J

1 The claimants Veronica Marks and Nicholas Brown have had their real property, situated in St. Ann, sold by the mortgagee thereof under powers of sale contained in a mortgage. Mr. Loxley Thompson was the mortgagee. The claimants have sued him, the purchaser N & N Investment Ltd, and its principal Ernest Allen. The Claimants allege that the sale was illegal. Their claim is that the Defendants pay damages to compensate them for financial loss incurred.

2 When the claim came on for case management the Defendants made two applications; Mr. Thompson applied to set aside a default judgment against him and the 2 ^nd and 3 ^rd defendants applied to strike out the claim as against them. I shall deal with each application in turn.

3 Mr. Thompson's application:

4 The court's file reveals that the judgment in default of defence was entered on 30 ^th December 2004. Miss Vassall, on Mr. Thompson's behalf, acknowledges that the formal document was served on his attorneys-at-law on 29 ^th June, 2005. The application to set aside the judgment was however not filed until 8 ^th November, 2005.

5 For this application the main issue to be determined is whether Mr. Thompson has complied with the requirements of rule 13.3 (1) of the Civil Procedure Rules. Miss Vassall spent a significant amount of time on the merits of Mr. Thompson's case. The court however anxiously considered the matter of whether the application to set aside was made as soon as was reasonably practicable after discovery that the default judgment had been entered. The requirements of the rule are such that unless the defendant clears this first hurdle there is no need to consider the merits of the defence.

6 Rule 13.3 (1) stipulates:

"Where rule 13.2 does not apply, the court may set aside a judgment entered under Part 12 only if the defendant-

• (a) applies to the court as soon as reasonably practicable after finding out that judgment has been entered;

• (b) gives a good explanation for the failure to file an acknowledgement of service or a defence as the case may be; and

• (c) has a real prospect of successfully defending the claim."(emphasis supplied)

7 It is now well established that the court has no discretion to set aside the default judgment unless the defendant meets all aspects of the triple test laid down by rule 13.3 (1). See Caribbean Depot Ltd. v. International Seasoning & Spice Ltd. SCCA 48/2004 (delivered 7 ^th June 2004).

8 The affidavits filed in support of the application all concentrated on the reason for the failure to file the defence in time, the demerits of the Claimants' case and the merits of Mr. Thompson's defence. The issue of delay is only addressed in the context of the failure to file a defence in time. For instance, at paragraph 12 of Mr. Thompson's affidavit sworn to on 14 ^th November, 2005, he deposed:

"That the delay in filing the defence results from the tardiness of instructing Counsel and not from me but from the Attorney-at-Law having carriage of sale in this matter."

9 The affidavit of Carol Marcia Vassall sworn to on January 28, 2005 contained a paragraph with very similar terms. Is this explanation sufficient to allow for the discretion of the court to be exercised?

10 Mr. Johnson, on behalf of the Claimants, submitted that the rule had not been satisfied at all, as the application was not made promptly. He submitted that the length of the delay precluded allowing the...