Omobowale Thomas v Rohan Gardner
| Jurisdiction | Jamaica |
| Judge | Jarrett, J. |
| Judgment Date | 28 July 2022 |
| Year | 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2019CV03954 |
and
[2022] JMSC Civ. 144
CLAIM NO. SU2019CV03954
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Setting Aside Default Judgment — CPR 13.3 — Whether the defence is one with a real prospect of success — Whether the defendant applied to set aside the defence as soon as reasonably practicable — Whether there is a good explanation for failing to file an acknowledgement of service within the time stipulated by the CPR — Whether the claim form was served
Mr Christopher O. Honeywell instructed by Christopher O. Honeywell & Co for the claimant.
Miss Houston Thompson, instructed by Dunbar & Co. for the 2 nd defendant.
CORAM: Jarrett, J. (Ag).
The Civil Procedure Rules ( CPR) 13.3 provides that a court has the discretion to set aside a default judgment if the defendant has a real prospect of successfully defending the claim. The burden is on a defendant to prove that his defence meets this test. It is settled law that if a court finds that the defence meets this threshold test, it must go on to consider whether the defendant applied to set aside the default judgment as soon as reasonably practicable and whether he has a good explanation for not filing an acknowledgment of service or defence (as the case may be) within the time stipulated by the CPR. I have before me for determination, the 2 nd defendant, Marlon Webb's application to set aside default judgment pursuant to CPR 13.3. The primary issue therefore is whether his proposed defence meets the threshold test of having a real prospect of success. A satellite, but important issue that also arises is whether he was in fact served with the claim form and particulars of claim. Interestingly, he raises this latter issue not as a basis to set aside the default judgment under CPR 13.2, but as one of the matters that I should take into account when considering whether he has a good explanation for not filing an acknowledgment of service on time.
The background to the application is a judgment in default of acknowledgment of service, which the claimant obtained against the 2 nd defendant on October 16, 2020. The default judgment is in respect of a claim filed on October 4, 2019, in which the claimant sought damages for negligence against the defendants, arising from a motor vehicular accident which took place on the Hart Hill Main Road in Portland on August 1, 2018. On that day, the 2 nd defendant was the driver of a Toyota Succeed motor car which was involved in a collision with the claimant's Nissan Bluebird. The Toyota Succeed was owned by the 1 st defendant, Rohan Gardner, but the claim form was never served on him.
The claimant alleges in his claim that on the day in question, he was driving along the Hart Hill Main Road in an easterly direction when on reaching a section of the roadway, the 2 nd defendant who was travelling in the opposite direction, negligently failed to keep to his left lane and thereby collided into his motor car. He claims to have suffered whiplash injury, neck and back pain.
In support of his application, the 2 nd defendant relies on his affidavit filed on February 18, 2022. He says in that affidavit that he has a good defence to the claim which has a real prospect of success. He is a driver and on the day of the accident he was on his left lane travelling towards Annotto Bay on the Hart Hill Main Road, when in the vicinity of the Buff Bay Cemetery, the claimant who was travelling in the opposite direction, encroached into his lane. Instinctively he swerved away from the claimant's car towards the right to try to avoid a collision, but at the same time, the claimant swerved “back to his left”, and both vehicles collided in the middle of the road. He was travelling uphill while the claimant was travelling downhill around a corner, and it was the claimant who caused the accident.
He was served with a Notice of Assessment of Damages in April 2021 at which time he contacted the 1 st defendant and gave him the documents. He believed, based on information from the 1 st defendant, that Advantage General Insurance Company Limited (AGIC), the 1 st defendant's insurers, were responsible for providing legal representation in such matters and, the 1 st defendant had taken the documents to them. In January 2022, he was advised by the 1 st defendant to contact Dunbar & Co, and he did. He received another Notice of Assessment of Damages and the default judgment in early January 2022 and he took those documents to Dunbar & Co when he met with them. He told the attorneys that he did not receive any other documents and gave them instructions to set aside the default judgment and to challenge service in respect of the claim form and the particulars of claim.
Dunbar & Co filed an acknowledgement of service on his behalf on February 1, 2022, and served it on February 2, 2022. In February 2022, upon being made aware by Dunbar & Co, of the affidavits of service of the process server Leon Brown, he recalled, belatedly, that he was served “sometime ago” with documents in Buff Bay, Portland, but he cannot remember the exact date. He does not know what these documents were as he did not look at them but took them to the 1 st defendant. He thought the matter was being dealt with until January 26, 2022, when he met with Dunbar & Co. He would be prejudiced if the default judgment is not set aside. He fully intends to defend the claim and would have filed an acknowledgement of service and a defence if he had understood that that is what he was to do.
On March 29, 2022, the claimant filed an affidavit in opposition to the 2 nd defendant's application. In that affidavit he says that the collision occurred at the elbow of a blind corner. He was negotiating a left-hand corner, going slightly uphill and had no reason to encroach on his right lane. The 2 nd defendant would not have been able to see his vehicle until he was about 30 to 40 feet away from him and the manoeuvres which he describes in his affidavit were not plausible within such a distance. He exhibits photographs of the accident scene which he alleges he took immediately after the collision, using the camera on his telephone. The photographs indicate that his car was positioned close to the extreme left, with his rear wheel almost on the soft shoulder, while the 2 nd defendant's vehicle was completely on his side of the road with the front of his vehicle pointing in the direction it was moving, just prior to the collision. Also exhibited to his affidavit is a police report dated October 9, 2018, with a sketch of the positions of both motor vehicles after the accident, which mirrors the photographs he took.
Given the 2 nd defendant's prevarication on whether he was served with the claim form, I allowed Mr Leon Brown the process server and the 2 nd defendant to give viva voce evidence and to be cross examined. Mr Leon Brown testified that he first served what he described as a “pile” of documents on the 2 nd defendant in Buff Bay Portland. The documents were for the assessment of damages, and service was on October 18, 2019. He explained to the 2 nd defendant what the documents were, that he had been sued in relation to an accident and that the documents were for him to go to court. Mr Brown said that he enquired of the whereabouts of the 1 st defendant, and the 2 nd defendant said he would take the documents to him.
When asked if he knows the names of the documents he served on the 2 nd defendant, Mr Brown said that he knows they were: “the assessment of damages”. He did not read them in detail but he thinks the documents were: “the filing of what the claim was for.” Questioned if he was familiar with the claim form and the particulars of claim, Mr Brown said that he was familiar with them. Asked whether any of these documents was in the “pile” of documents he served on the 1 st defendant on that day in Buff Bay, Mr Brown said that he was not sure what was inside of the documents. He read the first paragraph which indicated who sued the 2 nd defendant and “what the suing was about”. The 2 nd defendant had been known to him before as “Ziggy”, but he did not know his last name was “Webb”. Mr Brown said that he made the connection between the 2 nd defendant and the names “Ziggy” and “Webb”, by the licence plate number on the car. When he asked the 2 nd defendant if” Webb” was his last name, he said yes.
Mr Brown said that one month later, he had another occasion to serve the 2 nd defendant with documents. This time, he did not read the documents. Service was at a garage on the main road between Annotto Bay and Buff Bay. At that time, he said he told the 2 nd defendant to take the documents to his lawyer and let them deal with them, because if his boss does not deal with the documents, he should. After this occasion, he served the 2 nd defendant additional documents in Buff Bay, St Mary. That was around April 2021. He said that at that time, the document he served had the court date on it, and he thinks that that document was the default judgment. He said he asked the 2 nd defendant what was going on and why a default judgment: “had reached you guys”. Mr Brown said he encouraged the 2 nd defendant to show up in court on the court date. According to him, this was the last time he served the 2 nd defendant with documents. Asked whether apart from seeing the 2 nd defendant in Buff Bay and along the road, he had seen him anywhere else before, Mr Brown said he grew up in Windsor Castle, Portland, the same community in which the 2 nd defendant lived.
In relation to a supplemental affidavit filed on February 1, 2022, in which he deponed that it was the 1 st...
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