Mossel (Jamaica) Ltd v Cable & Wireless Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Campbell, J.
• Judgment Date: 24 October 2005
• Judgment citation (vLex): [2005] 10 JJC 2502
• Date: 24 October 2005
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

MOSSEL (JAMAICA) LTD.

CLAIMANT

AND

CABLE & WIRELESS JAMAICA LTD.

DEFENDANT

CIVIL PROCEDURE - Default judgment

Campbell, J

1 Before the Court are two applications for Orders:

• (I) An application by Cable and Wireless (Ja.) Ltd. (Cable & Wireless) that the time for filing of their defence be extended to the 31 ^st January 2005.

• (II) An application by Mossel (Ja.) Ltd. (Digicel) for leave to enter judgment in default of defence.

2 On the 5 ^th May 2005 Cable & Wireless filed an application for extension of time within which to file their defence. When the application was called on the 31 ^st May 2005, the matter was short-served and adjourned to the 19 ^th July 2005. In the interim, on the 28 ^th June 2005, Digicel filed an application to enter judgment in default of Cable & Wireless' defence.

3 The parties are licensees under the Telecommunications Act, 2000. Digicel is provider of public cellular services. Cable & Wireless is a provider of public fixed line, cellular and internet services in the island. The parties have entered into an Interconnection Agreement (ICA), which provides interconnection between their networks, in order to facilitate the making of a telephone call from one licensee network to another network. The parties are the main competitors in the cellular services market.

4 The parties instituted a system of net settlement of invoices, which allows a party making payment to set off invoices in certain circumstances from the party who is to receive the payments.

5 During the month of September 2003, Cable & Wireless deducted the sum of $16,011,640.34 from a payment of J$379,490,786.12 due to Digicel. Digicel demanded that the withheld sum be reimbursed. Cable & Wireless refused. On the 23 ^rd August 2004 Digicel filed a Fixed Date Claim Form seeking declarations inter alia;

A declaration that the Claimant is entitled to be paid the full amount of its interconnection charges invoiced to the Defendants in relation to charges incurred in July 2003 and invoiced for payment in September 2003 in accordance with the Interconnection Agreement dated the 18 ^th day of April 2001, free from set-off, deductions, or other withholding save in specific compliance with clause 9 of the Interconnection Agreement. A Particulars of Claim was filed on 11 ^th October 2004.

6 On the 27 ^th October 2004, Cable & Wireless acknowledged service of the Fixed Date Claim Form. No other step was taken by Cable & Wireless until 31 ^st January 2005 when they filed and served their defence one hour ahead of the scheduled 11:00am hearing.

7 The original date fixed for first hearing of the Fixed Date Claim Form was the 19 ^th April 2005. The attorneys-at-law for Digicel complained to the Registrar of the Supreme Court that such a fixture was not in conformity with Rule 27.2 (2) of CPR, which required that the first hearing be scheduled for a date not less than four (4) weeks or more than eight (8) weeks from the date of filing. The date of first hearing, 10 ^th April 2005, was some eight months later than allowed by the Rules. The Civil Registry fixed a new date which, although not in conformity with the Rules, reduced the period of the breach. The Claimants were duly advised of this new first hearing date of the 31 ^st January 2005.

8 The delay

9 The Claimant computes the delay from the deemed date of service for registered mail as per Rule 6.6, as 13 ^th September 2004 and concludes that on the 25 ^th October 2004 the defence should have been filed. Accordingly, on 12 ^th January 2005, at the time of service of relisted notice of first hearing, a period of 121 days had elapsed and the Defendants were 79 days in default of delivery of defence. The Defendant computes the service as the 11 ^th October, therefore, the period for filing the defence would expire on the 22 ^nd November 2004. The Defendants argue that at that time, the Fixed Date Claim Form in their possession indicated a first hearing date of 19 ^th April 2005. They contend they filed their defence within the time limited for filing their defence to the "amended Fixed Date Claim Form." They further allege there was no evidence before the Court in support of Digicel's application. Ms...