Mechanical Services Company Ltd v Clinton Ellis

• Jurisdiction: Jamaica
• Judge: Dukharan JA,Phillips JA,Sinclair-Haynes JA,Dukharan Ja
• Judgment Date: 15 May 2015
• Neutral Citation: [2015] JMCA App 20
• Docket Number: APPLICATION NO 121/2014
• Court: Court of Appeal (Jamaica)
• Date: 15 May 2015

[2015] JMCA App 20

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sinclair-Haynes JA (AG)

APPLICATION NO 121/2014

Between

Mechanical Services Company Limited

Applicant

and

Clinton Ellis

Respondent

Dukharan JA

1 I have read in draft the judgment of my learned sister Phillips JA. I agree with her reasoning and conclusion. There is nothing that I can usefully add.

Phillips JA

2 Mechanical Services Limited, with registered office situated at Shop 125 Princeville Commercial Centre, 95A Constant Spring Road, Kingston 10, St Andrew (the applicant), sought permission to appeal the decision of Master Harris (Ag) made on 2July 2014 whereby its application to set aside a default judgment and to extend time for filing its defence was refused.

Background

3 Sometime in 2008, the respondent Clinton Ellis went to the Turks and Caicos Islands to work on contract service. Mr Patrick Pottinger, a former employee of TC Mechanical Services Limited, Salt Mills Plaza, Grace Bay Providenciales, Turks and Caicos Islands, offered him a ride in a Dodge pick-up truck owned by Mr Russell Garland and registered and insured in the Turks and Caicos Islands. The respondent fell from the pick-up truck and sustained serious personal injury in the Turks and Caicos Islands. There are variations as to how the accident occurred. On one hand, the applicant contends that the accident occurred as a result of Mr Pottinger's attempt to avoid the impending danger of a speeding back-hoe that was coming towards the pickup truck (see paragraph 16 of the affidavit of Neville Glanville, managing director of the applicant, in support of notice of application to set aside default judgment). On the other hand, the respondent, in the medical report of Dr Micas Campbell filed with the particulars of claim, contends that while he was attempting to get into the pick-up truck it drove off causing him to fall backwards resulting in the injury.

4 On 1 June 2009, the respondent filed a claim against the applicant. In his particulars of claim he alleged that: (i) he was at all material times employed to the applicant; (ii) he fell from the pick-up truck and sustained injury and loss while he was in the execution of his duties; (iii) his fall occurred as a result of the applicant'snegligence (by failing to provide a safe system and place of work, competent and sufficient staff of men, and failing to provide the requisite warning notices and special instructions); and (iv) that the applicant breached either an express or implied term of the respondent's contract to take all reasonable care to execute its operations in the course of its trade in such a manner as not to subject the respondent to a reasonably foreseeable risk of injury.

5 The claim form, particulars of claim and a letter addressed to the applicant were sent by registered post on 10 June 2009. Pursuant to Fitzroy Cameron's affidavit filed 16 October 2009, the applicant was deemed to have been served by 1 July 2009. The applicant would have then been required to acknowledge service by 15 July 2009 and to file its defence by 13 August 2009. None of this having been done, a default judgment was entered against the applicant on 15 October 2009.

6 However, the applicant contended that it did not receive these documents until 9 October 2009, after which it filed an acknowledgment of service on 20 October 2009 and a defence on 29 October 2009. On 24 November 2010, an application was filed to strike out the respondent's claim on the grounds that: (i) the claim form and the particulars of claim, for and on behalf of the claimant, failed to comply with the Civil Procedure Rules (CPR), in that, the nature of the claim and the specific remedy being sought was not set out therein; (ii) the particulars of claim were confusing; and (iii) that the court had no jurisdiction to hear the matter because the accident occurred in the Turks and Caicos Islands.

7 A hearing date for the application to strike out the claim was set for 26 March 2012 and went before Lindo J for determination but was adjourned to a date to be fixed by the registrar as neither counsel nor the parties were present. The applicant claimed that it was never advised of this date by its previous attorney-at-law, Mr Lynden Wellesley. The applicant contended that it only discovered that a default judgment had been entered against it on 27 May 2011, and that at all material times, having provided full instructions to Mr Wellesley, it thought that its interests were being protected.

8 The applicant thereafter changed its attorney-at-law who, on 31 October 2012, made an application to set aside the default judgment and sought an extension of time within which to file its defence. This application was made on the grounds that: (i) the applicant had a real prospect of successfully defending the claim; (ii) the application was made as soon as was reasonably practicable after knowledge of the entry of the default judgment; and (iii) the applicant had a good reason for the delay.

Application to set aside default judgment and to extend time to file defence

9 This application was heard by learned Master Harris on 12 May 2014. The applicant in its proposed defence and in the affidavit of Neville Glanville in support of the application to set aside the default judgment set out the following material facts.

• 1. The original documents were not served on it until 9 October 2009 and thereafter it acknowledged service and filed its defence within the times stipulated in the CPR.

• 2. It was not told of the hearing date for the application to strike out the claim.

• 3. The respondent was not employed to the applicant at the material time.

• 4. The accident was caused by the negligence of a back-hoe driver and not the applicant.

• 5. There was no nexus between the medical report of Dr Micas Campbell and the accident.

10 The respondent's affidavit, filed in response to the application, challenged the application on the following grounds.

• 1. The respondent was prejudiced by having to wait from 2009 to 2013 to benefit from the judgment.

• 2. It is highly unlikely that registered mail would take four months to be delivered inland.

• 3. It is not true that the applicant did not receive its file until 29 October 2012 since Mr Wellesley in his affidavit contended that the applicant had severed ties with him in October 2011.

• 4. Since October 2009, the applicant failed to seek permission to file its defence out of time and this was only done on 31 October 2012.

• 5. The applicant had been sent to work with TC Mechanical Services by Neville Glanville who is the chief executive officer of that company.

11 Master Harris denied the application to set aside the default judgment, refused to grant permission to file the defence out of time, and also refused an oral application for permission to appeal. The applicant now seeks permission to appeal relying on the grounds summarized below.

• 1. An oral application for leave to appeal was made pursuant to rule 1.8(3) of the Court of Appeal Rules, to Master Harris on 2 July 2014 and was refused.

• 2. Permission to appeal was sought pursuant to rule 1.8(3) of the CAR.

• 3. Pursuant to rule 1.8(9) of the CAR, the applicant has a real chance of success on the appeal because Master Harris failed to acknowledge certain evidence placed before her as follows:

  • a) Lack of regard to the employer of Mr Pottinger, the driver of the pick-up.

  • b) The accident occurred in an effort to avoid the danger caused by a speeding back-hoe and not as a result of anyone employed to the applicant.

  • c) Lack of medical proof that the injuries were caused directly by the accident.

  • d) There are issues surrounding the jurisdiction of the court.

  • e) Failure to give effect to the overriding objective under the CPR.

• 4. The applicant also has a real prospect of succeeding in the claim because Master Harris erred in making the following findings.

  • a) There were no substantial issues of law and fact from which the court could find that the proposed defence had a real prospect of success since the proposed defence lacks merit.

  • b) The defence proffered was frivolous and vexatious.

  • c) The failure of the applicant's previous attorney-at-law to properly represent it and to inform the applicant of court dates and judgments entered against it was not a good reason for the applicant's failure to file its defence and acknowledgment of service in time.

  • d) The applicant filed an application to set aside its default judgment three years after finding out that a default judgment was entered against it.

  • e) The respondent was employed to the applicant at the material time.

  • f) The applicant was liable for the respondent's injury (without regard to the principles of vicarious liability and the need to establish the duty of care that the applicant owed to the respondent).

Applicant's submissions

12 The applicant's attorney-at-law, Mr Hadrian Christie submitted that the requirement in rule 1.8(9) of CAR, which grants permission to appeal where the appeal has a ‘real chance of success’, simply means that the chance of success must be realistic and not fanciful. He contended that the applicant has surpassed this standard by virtue of the...