Oral Williams v Diamond Paints MFG Company Ltd
| Jurisdiction | Jamaica |
| Judge | Justice T Mott Tulloch-Reid |
| Judgment Date | 13 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO 2015 HCV 04408 |
[2022] JMSC Civ 113
CLAIM NO 2015 HCV 04408
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Validity of Claim Form — Whether Amended claim form takes life from the claim form — when service is irregular does that bring the matter to an end — does failure to serve Form Defence with claim form nullify the claim — CPR 8.16
Ms Tamika Jordan and Ms Toni Ann Farquaharson instructed by Barbara Barnaby Attorney-at-law for the Claimant/Applicant
Mr Jerome Spencer and Mr Gilroy English instructed by Gilroy English & Co Attorneys-at-law for the Defendant/Respondent.
On March 3, 2020 the Defendant applied to set aside a default judgment entered against it in favour of the Claimant. The ground on which the application was made is that the conditions for entry of Default Judgment had not been satisfied at the time the request for same was made pursuant to Civil Procedure Rule (“CPR”) 13. 2. CPR 13.3, that the Defendant had a real prospect of successfully defending the claim, was put forward as an alternative ground.
The application was heard on July 15 and 23, 2020 and judgment delivered on August 4, 2020. The Default Judgment was set aside on the basis that it was irregular and had to be set aside as of right. Although the Claim Form and the Particulars were served by facsimile, I found that the service was irregular, because the form defence which was to be attached to the Claim Form did not form a part of the service package as is required by CPR 8.16. No additional orders were made.
That order having been made, the Registrar, on November 30, 2022 scheduled a Case Management Conference. The Claimant filed an application for court orders on March 10, 2022 with Affidavit of Barbara Barnaby in Support. In the application, the Claimant sought the following orders:
“1. The Further Amended Claim Form filed on the 28 th day of January 2019 be permitted to stand.
2. The Defendant shall file a Defence within fourteen (14) days of the date of the Order.
3. The matter shall proceed to mediation and the parties must attend within ninety (90) days of the date of the Order….”
The application has several bases. The ground that is most relevant to the application is ground 4 which states that based on the orders that I made in relation to the Defendant's application to set aside default judgment,
“… the Claimant seeks directions for further action to be taken in his claim given that no Orders were made at the hearing of the application to set aside default judgment on August 4, 2020 in this regard.”
Ms Barnaby in her affidavit in support of the application indicates that since the default judgment was set aside, consequential orders need to be made for the progress of the matter. At paragraph 6 of her affidavit she indicates that the default judgment was set aside as of right on the basis that the form defence was not served. She goes on to say that since the default judgment was not set aside on the basis of any issues pertaining to service, and the defendant had received sufficient notice of these proceedings, the Further Amended Claim Form filed on January 28, 2019 should be permitted to stand. Ms Barnaby's evidence is that the claim became statute barred as at October 26, 2015 and as such the initiating documents cannot be re-served. Service of the Claim Form and Particulars of Claim should be dispensed with in the interest of justice particularly in light of the fact, that I had previously found that they had been served.
Ms Jordan relies on the written submissions prepared by Ms Barnaby included in the Bundle of Submissions filed on May 13, 2022. Ms Barnaby argues at paragraph 15 of the submissions that having concluded in my reasons that the default judgment should be set aside as of right, I gave no further reasoning to state or suggest that the claim was dismissed. She submits that the claim is therefore not dismissed and the matter should proceed to case management conference. She states that without the express statement of the Court that the claim is dismissed the Defendant has no basis to argue that the claim is dismissed. She relies on the case of Vendryes v Keane and anor [2011] JMCA Civ 15 to support her submission that a claim is not dismissed on the setting aside of a default judgment.
Paragraph 18 of the written submissions quotes from paragraph 29 of the judgment of Harris JA in the Vendryes case which reads as follows:
“he had an obligation to have taken into account the non-service of the respondents' amended pleadings. The appellant's right to defend would only arise after service. Consequently, subsequent to the service of these pleadings, the appellant would, then and only then, be required to file a defence. She may do so within 42 days after the date of service as prescribed by rule 10.3(1) of the CPR”.
Paragraph 19 of the written submissions goes on to say that after the setting aside of the default judgment, the court should consider the issue of service of the pleadings and then order the filing of a defence by the Defendant.
Ms Barnaby argues at paragraph 22 of the written submissions that since I was satisfied that the pleadings had been served by fax, the issue of service is not in dispute. The Court was therefore authorised to employ case management powers, and the claim is now at the stage where I should order that a defence be filed.
In her oral submissions, Ms Jordan argued that setting aside in the absence of an attached document does not invalidate the claim and that setting aside for the absence of a document is different from setting aside for service. The claim, she argues, was still valid when the default judgment was set aside because the issue was not non-service but because the defendant had not received the form defence. Ms Jordan further submitted that the Court of Appeal has ruled that if there is no service and the statute of limitation and validity of the claim have expired, the claim falls by the way. That would go to the substance of the claim. However, when a document is not served with the claim form, the issue becomes a procedural one and therefore does not invalidate the original claim form.
Ms Jordan has also made submissions with respect to the re-service of the Claim Form in October 2016. I need not relook on that issue as I already commented on the “re-service” of the Claim Form, in my August 4, 2020 decision.
Ms Jordan has asked me to consider the following cases in coming to my decision:
I have considered all the cases relied on in coming to my decision.
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a. Marsha Salmon v Neville Scott [2019] JMSC Civ 18
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b. Kerry-Ann Barnaby-Stoddart v Renville Barker [2019] JMSC Civ 118
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c. Dorothy Vendryes v Richard Keane and anor [2011] JMCA Civ 15; and
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d. Rohan Smith v Elroy Pessoa and anor [2014] JMCA App 25
Mr Spencer submitted that the attempt by Ms Jordan to draw a distinction between the failure to serve Claim Form and Particulars of Claim on the one hand, and the failure to file the said documents without complying with Part 8.16 of the CPR on the other hand is of no significance for the purposes of setting aside the default judgment. He argues that the Vendryes, Nanco and Pessoa decisions make it clear that the default judgment must be set aside if the claim form is served without the supporting documents required by CPR 8.16. While Vendryes said service without the supporting documents made the claim itself a nullity, Nanco and Pessoa have clearly articulated that the failing in question was an irregularity. He said in this case in which service was irregular, the irregularity could only be cured with a re-service of the Claim Form, Particulars of Claim and all the supporting documents. That is what Morrison JA said at paragraph 37 of the Nanco decision and this was reiterated by Phillips JA at paragraphs 31–32 of Pessoa.
He further submitted that when I made my decision in August 2020, there was no need for me, to order a defence to be filed by a certain time, as service was irregular and the documents had to be re-served and re-service would have to be done during the time that the Claim Form would have to be served pursuant to the CPR. That did not happen. The only recourse is for the Claimant to bring a new claim and he cannot do this now as the limitation period has passed.
Ms Jordan has also asked me to dispense with service. I would not be doing that at this time especially since I have already ruled that there was service. She relied on the Barnaby-Stoddart case to support her submissions. I do not believe that the case is helpful. In that case the claim form was not served at all and the Court, in what was described as “the exceptional circumstances” in that case, exercised its discretion and dispensed with service. I do not have to make that decision now. In 2020, I had already ruled that there was service by fax.
I will begin my analysis of the issues with a review of the Vendryes case on which both the Claimant's and the Defendant's attorneys-at-law rely. In that case the Claim Form and Particulars of Claim were served on the Defendant. They were however served without the Prescribed Notes to the Defendant, Form Acknowledgement of Service and Form Defence. Notwithstanding this shortcoming, a default judgment was entered against the Defendant. The Defendant applied to set aside the Default Judgment on the basis that the judgment was wrongly entered due to the...
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