Moranda Clarke v Dion Marie Godson and Another

• Jurisdiction: Jamaica
• Judge: Bertram-Linton
• Judgment Date: 20 March 2015
• Neutral Citation: [2015] JMSC Civ 48
• Docket Number: CLAIM NO. 2013 HCV 03117
• Court: Supreme Court (Jamaica)
• Date: 20 March 2015

Between

Moranda Clarke

Claimant

and

Dion Marie Godson

1st Defendant

and

Donald Ranger

2nd Defendant

[2015] JMSC Civ 48

CLAIM NO. 2013 HCV 03117

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Substituted service — Application to set aside substituted service by Insurer — Insurer saying they are unable to contact insured — Default judgment — Application to set aside default judgment — Test to be applied for setting aside default judgment — Extension of time to file defence.

Ms. Channa Ormsby instructed by Campbell & Campbell for the applicant

Mr. Paul Edwards instructed by Bignal Law for the claimant/respondent

Bertram-Linton

Master-in-Chambers

1 The Claimant Moranda Clarke was a passenger in a public passenger vehicle PP264V which collided with the motor car 8201 FS owned by both the 1 ^st defendant Dion Godson and the 2 ^nd defendant Donald Ranger. The 2 ^nd defendant was driving at the time of the collision.

2 Miss Clarke filed her claim on 22 ^nd May 2013 but was unsuccessful in serving the documents. Thereafter a successful application was made to serve their insurance company Advantage General Insurance Company Limited.

Interlocutory Judgment in default was subsequently entered and the matter slated to proceed to Assessment of Damages.

3 Advantage General now applies to be heard in the claim and by their Amended Notice of Application filed on 29 ^th October 2014 requests inter alia.

• ‘(1) That permission be granted to the applicant to be heard in the claim.

• (2) That there be an extension of time for filing of the Notice of Application for Court Orders and Affidavit in Support and that the documents be allowed to stand.

• (3) That the Order for substituted service made herein on the 11 ^th December 2013 to effect substituted service of Claim on Advantage General Insurance Company Limited in lieu of personal service of the personal service on the 2 ^nd Defendant be set aside.

• (4) That service of the Claim Form and Particulars of Claim pursuant to the order for substituted service in respect of the 2 ^nd Defendant be set aside.

• (5) That all proceedings flowing from the service of the documents to be set aside.

• (6) That the default judgment entered in Binder 761 Folio 454 be set aside.

• (7) That the Acknowledgment of Service filed on behalf of the 1 ^st Defendant be permitted to stand.

• (8) That there be an extension of time within which the 1 ^st defendant (type amended on 23 ^rd February 2015) is to file a defence to the claim within 14 days of the hearing of the application herein.

• (9) …

• (10) …’

The Application is supported by two (2) affidavits that of the 1 ^st defendant Dian Godson and Ruthann Morrison Legal Officer at Advantage General both filed on 3 ^rd November 2014.

The Case for the 1 ^st Defendant

4 Miss Ormsby sought to move the court in respect of the 1 ^st defendant for the default judgment to be set aside and extension of time to file a defence. In her Affidavit the 1 ^st defendant asserts that the 2 ^nd defendant who was a joint owner of the vehicle and her former spouse had gone to visit relatives and only informed her that he met into an accident. It was when the Investigator sent by the insurance company came to her home in August 2014 that she became aware of the suit. She had moved from her previous address and had not informed her insurance company of the new one.

5 She said Mr. Ranger had been about his own business when the accident occurred and she should not be held liable for it. They ended their relationship sometime after the accident. He left Jamaica in January 2012 and she has not seen or heard from him since.

An Acknowledgement of Service was filed on her behalf on 4 ^th November 2014 and this was as a result of contact being made by the attorneys now representing her.

Submissions for 1 ^st defendant

6 Ms. Ormsby says Ms. Godson's defence deserves to be heard since she was a co-owner of the vehicle and not to be held liable for the other co-owner's independent actions. There would be no issue she contends as to vicarious liability. When she was informed of the claim she contacted her insurers and thereafter made every effort to co-operate and involve herself in the defence of the action which she now feels has a real prospect of success. The default judgment had been served on the 8 ^th September 2014 which meant there was a delay of about one (1) month and twenty (20) days to when the Amended Notice requesting the setting aside of the default judgment was filed.

7 She concedes that the Acknowledgment of Service was filed after the Application but asked the court to view this as non-compliance with a formality that should not prove fatal. She asserts that what was important was that the deficiency has been corrected and the 1 ^st defendant's application should be given standing by the court which has the discretion under Rule 26.1 to abridge the time.

8 Mr. Edwards says in opposition to the 1 ^st defendant's application that she has come with her application after an unreasonably lengthy period of time. Even if she only became aware of the suit in August 2014, the first hint that she had a defence only came in October 2014 a good two (2) months after. Her insurance company's actions must be attributed to her, they knew that they had problems contacting their insured from as far back as January 2013 when other claimants had filed their actions.

9 Having found her in August 2014 and served with the default judgment in 8 ^th September 2014 it was unreasonable that they waited until 29 ^th October to represent her position through the Amendment to the application Mr. Edwards submits as well that rule 11.16(2) has been breached since this application to set aside the substituted is outside the requisite fourteen (14) days from the date of service of the order. The default judgment was served on 8 ^th September 2014 so the defendant had until 23 ^rd September 2014 to approach the court.

10 The Rule says of an application to set aside or vary order made on application made without notice. Rule 11.16

• ‘(1) A respondent to whom notice of an application was not given may apply to the court for any order made on the application to be set aside or varied and for the application to be dealt with again.

• (2) A respondent must make such an application not more than 14 days after the date on which the order was served on the respondent.

• (3) An order made on an application for which notice was not given must contain a statement telling the respondent of the right to make an application under this rule.’

11 He disagrees with Ms. Ormsby that just as in Austin v Public Service Commission & AG 2013 JMSC Civ 26 where Managatal J, found rule 11.16(3) to be directory rather than mandatory, rule 11.16 (2) was to be interpreted as mandatory and in keeping with the general thrust of the rules to observe and enforce timelines for the efficient conduct of litigation.

Analysis of 1 ^st defendant case

12 The court must of necessity deal with this issue first since it hinges on whether this application can move forward at all.

13 In the Austin case as cited above, the reasoning concerned rule 11.16(3) and whether this was applicable to a matter which was pursuant to part 56 of the Civil Procedure Rules. Even though finding that the rule was not applicable in Administrative Law proceedings Managatal J, went on to examine the meaning of ‘must’ in Rule 11.16(2) and 11.16(3) at paragraph 17 of that judgment. She was careful to separate the various contexts in which the word had been seen, as either a mandatory requirement or a permissive/directory one.

14 She concluded that in the case of Rule 11.16(3) the language was such that

‘It does not speak of the judge directing or being mandated to direct anything at all. Rather it states that the order ‘must contain a statement telling the respondent of the right…’ to challenge the order made ex parte (my emphasis). This language does not correspond to that used in respect of orders required to be made by the judge. The notice or statement, whilst important, is therefore a procedural formality. It does not go to the substance of the order itself. Consequently where it is absent, it is not a defect which will render the order void. Rule 11.16(3) is in my judgment directed at the formal order and not the adjudicating decision in the substantive order.’

and later at paragraph 27 she concludes

‘In my judgment, the situation regarding Rule 11.16(3) is analogous to one where an injunction was ordered requiring a party to do a particular act within a specified time but the formal order did not contain the penal notice. The fact that the penal notice was not contained in the order does not mean that the substantive of the order would be invalid.’

Based on the reasoning in relation to Rule 11.16(3) Mangatal J, cannot be faulted for coming to the conclusion outlined. Notable though is that even though the section is headed in relation to both Rule 11.16(2) and 11.16(3) the clarity in reasoning focuses only on Rule 11.16(3).

15 In my judgment the CPR Rule 11.16(2) is meant to be mandatory and is distinguishable from the one in Rule 11.16(3) as to when the application to set aside or vary an order made on application made without notice is to be made.

This is so because in keeping with the stated thrust of the Civil Procedure Rules a specific time frame is being laid down not as a directory or permissive one as in the case of a notice corollary to the order of the court but as a structure to prevent protracted litigation on an issue – that of the decision to grant an ex parte order.

16 I am persuaded to this view as time...