Nadine Billone v Experts 2010 Company Ltd

• Jurisdiction: Jamaica
• Judge: Anderson, K., J.
• Judgment Date: 31 July 2013
• Neutral Citation: [2013] JMSC Civ 150
• Docket Number: CLAIM NO. 2011 HCV 1140
• Court: Supreme Court (Jamaica)
• Date: 31 July 2013

[2013] JMSC Civ 150

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV 1140

Between

Nadine Billone

Claimant

and

Experts 2010 Company Ltd.

Defendant

Marvalyn Taylor-Wright instructed by Marvalyn Taylor-Wright & Co. , for the Claimant

Zavia Mayne instructed by Zavia Mayne & Co. , for the Defendant

APPLICATION TO SET ASIDE DEFAULT JUDGMENT — WHETHER GOOD REASON FOR FAILING TO FILE A DEFENCE SHOWN — WHETHER DEFENDANT ACTED PROMPTLY UPON HAVING BECOME AWARE THAT A DEFAULT JUDGMENT WAS ENTERED AGAINST IT — WHETHER PROPOSED DEFENCE HAS A REAL/REALISTIC PROSPECT OF SUCCESS

Anderson, K., J.

1 The claimant in this claim filed her claim on March 11, 2011 and thereafter, filed an amended claim form on March 30, 2012. In her claim, she has claimed for the sum of $16,775,144.28 which she has claimed, constituted principal and interest up until the date of filing, arising from payments made towards the purchase of Lot 30 Discovery Pointe Estate, Discovery Bay, in the parish of St. Ann.

2 The defendant, in response through its attorney at that time, filed an acknowledgement of service or amended claim form, in which it acknowledged that it had been served with the claimant's amended claim form and particulars of claim on April 10, 2012. That acknowledgement of service was promptly filed, insofar as it was filed the next day, that being, April 11, 2012.

3 Up until April 11, 2012, the claimant was being represented, for the purposes of this claim, by the law firm — Sheldon Codner & Company, whereas the defendant was then being represented by attorney — Arnaldo Brown. By virtue of respective notices of change of attorney, the claimant changed her legal representation, as of July 22, 2011, such that, since then and until now, she has been and is being represented by attorney Marvalyn Taylor-Wright. Equally too, the defendant has, subsequent to the filing of its acknowledgement of service, been represented by Zavia Mayne & Company, as of May 21, 2012.

4 By virtue of rule 10.3(1) of the Civil Procedure Rules (CPR) , as this is a claim form proceeding, as distinct from a fixed date claim form proceeding, the defendant was legally required to file its defence within 42 clear days of receipt from the claimant, of the claim form and particulars of claim. The defendant did not comply with that legal requirement. As a consequence, the claimant, pursuant to the provisions of rule 12.7 of the CPR, filed, on June 6, 2011, a request for default judgment. In that request, the claimant contended that she was owed by the defendant, principal and interest calculated up to June 30, 2011, in the sum of $10,852,158.52, plus costs and court fees amounting to $29,547.23. A modified request for default judgment was filed by the claimant on June 4, 2012 and in that modified request document, sought modified sums as principal and interest (up to June 4, 2012) and attorneys-at-law fixed costs together with interest, which when aggregated with attorneys-at-law fixed costs on entering judgment and court fees on claim, totalled — $11,796,353.41 — this being the precise sum claimed by the claimant in her modified request for default judgment.

5 Following on the filing of that modified request for default judgment, the claimant was awarded a default judgment against the defendant and that judgment was, as of October 17, 2012, entered by a Deputy Registrar of this court, in judgment binder 755, folio 206. Thereafter, the defendant filed an application to this court, to set aside that default judgment. That application to set aside was filed on November 6, 2012 and of course, seeks to have the said default judgment set aside and to have, in the alternative, the defendant being permitted by this court to file its defence within seven days of the making by this court, of its orders on the application. The grounds set out for the making of the orders applied for by the defendant, are “(1) That the defendant has a real prospect of successfully defending the claim,” and “(2) That the granting of the orders being sought herein will be prejudicial to the claimant.”

6 It is worthy of stating at this juncture that the defendant's contention as per one of its grounds for the application, that the granting of the orders sought by it, would not be prejudicial to the claimant, is untenable and of no merit whatsoever. Clearly, since the claimant is in receipt from this court, of a regularly issued judgment, it inexorably follows that if that judgment were, for whatever reason, to be set aside, there would be prejudice to the claimant, insofar as she would likely then incur far more costs and utilize far more time in trying to regain that judgment and will thereafter, likely only be able to do so, after a contested trial, if even she can regain the same at all.

7 This is why our rules of court make it clear that an application to set aside a default judgment cannot properly be granted as a matter of right. It is instead, entirely a matter for this court's discretion, as to whether a regularly entered default judgment should be set aside or not and that discretion is circumscribed by the provision in our rules of court, that there are certain specific considerations which this court must bear in mind in deciding on whether or not a default judgment is to be set aside.

8 Accordingly, rule 13.3(1) of the CPR provides that —“the court may set aside or vary a judgment entered under Part 12 if the defendant has a real prospect of successfully defending the claim.?” Rule 13.3(2) of the CPR provides:

“In considering whether to set aside or vary a judgment under this rule, the court must consider whether the defendant has :

• (a) Applied to the court as soon as is reasonably practicable after finding out that judgment has been entered .

• (b) Given a good explanation for the failure to file an acknowledgement of service or a defence, as the case may be.”

9 Thus, it is clear to this court, that the pre-eminent consideration for this court, when deciding on whether or not to set aside a default judgment, is whether or not the defendant's proposed defence has, “a real prospect of success,” since if so, then the defendant would have, as required by rule 13.3(1) of the CPR—“… a real prospect of successfully defending the claim.” Whilst this is this court's pre-eminent consideration for the purposes of the defendant's application to set aside though, it is not the only consideration. The matters as set out in rule 13.3(2) must conjunctively be considered along with whether the proposed defence has a reasonable prospect of success, in order for this court to properly rule on the defendant's application for a completed enunciation of the law in this regard and as look at how Jamaica's rules of court have evolved in respect of matters to be considered by this court in deciding on applications to set aside regularly issued default judgments, see: Marcia Jarrett and South East Regional Health Authority and Robert Wan v The Attorney General— Claim No. 2006 HCV 00816, in which the judgment of this court, was delivered by McDonald-Bishop J. (Ag.) (as she then was).

10 Who has the burden of proving that she or it has met or not met the requirements of rule 13.3 of the CPR, in respect of an application to set aside default judgment? The general rule in law, is that, “he who asserts, must prove.” Thus, upon applications to set aside default judgment, the burden of proof rests squarely on the defendant's shoulders. See the judgment of Potter, LJ in the case — ED and F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, esp. at para 9, in this regard. In that same judgment, the Court of Appeal of England made it clear that the test of whether the defence has “a real prospect of success,' is the same as that to be addressed if a party seeks summary judgment. See also, in this regard — Swain v Hillman [2001] 1 All ER 91. It is not enough to show a merely arguable defence. The court's judgment which first established this and which has been expressly adopted by rule 13.3(1) of Jamaica's rules of court, is — Alpine Bulk Transport Co. Inc. v Saudi Eagle Shipping Co. Inc. The test of “reasonable prospect of success” was addressed in great detail by England's Court of Appeal, in the case — Swain v Hillman [2001] 1 All ER 91. In that judgment as reported, Lord Woolf, M.R. (as he then was) stated that the word “real” directed the court to the need to see whether there was a realistic, as opposed to a fanciful prospect of success. It is important to note, that as clearly set out by the judgment of England's Court of Appeal in the case — Three Rivers District Council v Bank of England (No. 3)— [2003] 2 AC 1, a claim may be fanciful where it is entirely without substance, or where it is clear beyond question that the statement of case is contradicted by all the documents or other material on which it is based. Equally too, if the proposed defence, in an application to set aside default judgment, is clearly undermined by virtue of relevant documentation, the purport of which is/are not being disputed by the defendant for the purposes of the application to set aside. See in that regard, an extract from the text — Civil Litigation , as authored by Craig Osborne, as recorded by the judge that rendered judgment in the Marcia Jarrett case (op.cit), which I approve of and adopt.

11 Jamaica's courts have, time and time again, adopted all of the aforementioned legal principles, in respect of applications to set aside default judgments. See in that regard: Eunice Holding v Yvonne Williams— Claim No. C.L.H227/1995; and Andrew Robertson and Toyojam Ltd v Ewen Haughton— Claim No. 2006 HCV 2311 and C Braxton Moncure v Doris DeLisser— [1997] 34 JLR 423.

12 What evidence has been placed before this court by the defendant, in support of its application to set aside the default...