Rachael Graham v Erica Graham
| Jurisdiction | Jamaica |
| Judge | F Williams JA,G Fraser JA (AG),V Harris JA |
| Judgment Date | 10 December 2021 |
| Neutral Citation | JM 2021 CA 134 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2020CV00034 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 51
IN THE COURT OF APPEAL
The Hon Mr Justice F Williams
The Hon Mrs Justice V Harris JA
The Hon Mrs Justice G Fraser JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2020CV00034
and
Written submissions filed by Livingston, Alexander & Levy for the appellant
Written submissions filed by Lambie-Thomas & Co
I have read in draft the judgment of G Fraser JA (Ag). I agree with her reasoning and conclusion and have nothing to add.
I, too, have read in draft the judgment of G Fraser JA (Ag) and agree with her reasoning and conclusion. There is nothing I could usefully add.
On 12 June 2019, Ms Rachael Graham (‘the appellant’), claimant in the court below, filed a without notice application for court orders in the Supreme Court where she sought the following orders:
“1. That the Claimant/Applicant be granted leave to effect service of the Fixed Date Claim Form and Affidavit of Rachael Graham in support along with exhibits and all subsequent process filed in the Registry of the Supreme Court on the Defendants, ERICA GRAHAM and WINNIFRED XAVIER by substituting personal service by service on Lambie-Thomas & Co, Attorneys-at-Law of suite 4 &5, 11 Barrett Street, Spanish Town, Saint Catherine.
2. Alternatively, that the Claimant /Applicant be granted leave to serve the Fixed Date Claim Form and the Affidavit of Rachael Graham along with exhibits on the 2 nd Defendant in London, England.”
The grounds on which the appellant relied were that pursuant to rule 5.14(2) of the Civil Procedure Rules 2002 (‘CPR’), the court is empowered to make an order permitting service by a specified method that is likely to bring the contents of the documents to the attention of the defendants. Further, pursuant to rule 7.5 of the CPR, the court is empowered to grant permission to serve the claim form out of the jurisdiction.
On 19 July 2019, Master Hart-Hines (as she then was) (‘the learned Master’) heard the application. The learned Master made an order permitting the appellant to effect service on the defendants of the fixed date claim form, supporting affidavit, exhibits and all subsequent process filed in the registry of the Supreme Court, by way of service on Lambie-Thomas & Co.
On 14 August 2019, Lambie-Thomas & Co filed an application in the Supreme Court to set aside the orders of the learned Master and the service of the fixed date claim form and supporting affidavit previously served on them. The grounds of the application were that: (1) the appellant had not established that personal service on the defendants is not possible; and (2) the orders as granted are not in compliance with the CPR and/or the law generally.
The notice of application to set aside court orders was heard on 9 October 2019, by Brown J (‘the learned judge’) who granted the application, thus setting aside the orders of the learned Master made on 19 March 2019.
The appellant applied for, and was granted, leave by the court below to appeal against the decision of the learned judge and accordingly, on 6 May 2020, filed a notice of appeal seeking, an order to set aside the order of the learned judge and for the orders made by the learned Master to be re-instated. The grounds, as stated in the notice of appeal, are as follows:
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“a. The learned judge erred in finding that an Attorney-at-Law can only be served, alternative to personally serving a defendant, under the of [sic] Rule 5.6 and that Rule 5.14 does not permit alternative or substituted service on Attorneys-at-Law. The learned judge misdirected himself, since Rule 5.6 applies to service on attorneys where they have received authorization from their client to accept same. That rule does not stipulate that this is the only method by substituted service on an attorney-at-law is permissible [sic].
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b. The learned judge failed to consider that Rule 5.14 of the CPR permits the court to sanction service by an alternative method of service where it is shown on affidavit evidence that the claim form is likely to come to the attention of the defendant by the method of service chosen. The rule is satisfied by a demonstration of the likelihood of the contents of the documents coming to the attention of the defendant. All that is required of a party on whom documents are served pursuant to an order for alternative service is to make reasonable efforts to bring the contents of the documents to the attention of the Defendants.
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c. The learned judge erred in focusing on the fact that Lambie-Thomas & Co is a firm of Attorneys-at-Law. Lambie-Thomas & Co were not being served qua attorneys-at-law; in fact, they were served as a person or means by which the contents of the documents could be brought to the Defendants' attention. This was satisfied by the Respondent's affidavit evidence, which confirmed that the Defendants are their clients who they represent in a related matter in the Parish Court. It has further been confirmed that Lambie-Thomas & Co is in or has been in contact with at least the 1 st Defendant and has specifically had contact with the 1 st Defendant about the Fixed Date Claim Form and Supporting Affidavit filed herein. Lambie-Thomas & Co, is therefore in a position to bring the contents of the documents to the attention of the Defendants.
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d. The learned trial judge erred in failing to apply the correct test in considering the Respondent's application to set aside the order for substituted service. The grounds on which an order for alternative service can be set aside are:
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a. the Order was obtained because the respondent concealed something important from the Court
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b. it was based on a misunderstanding of the law;
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c. it was based on a misunderstanding of the evidence before the judge or it was based on an inference that particular facts existed or did not exist which can be shown to be demonstrably wrong
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d. it is not in contact with the defendant.
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e. Had the learned trial judge applied the correct principles, he would have refused the Respondent's application, given that Lambie-Thomas & Co. did not show that they have made all reasonable efforts to bring the contents of the Fixed Date Claim Form and Affidavit in Support to the attention of the Defendants but have been unable to do so and therefore substituted service on them should be set aside.
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f. The learned judge erred ruling that an Attorney-at-Law cannot be compelled to bring statement of case served on them under Rule 5. 14 to the attention of the Defendants if they are not retained in the said matter. The issue is not whether Lambie-Thomas & Co. was or will be retained to act for the Defendants in this lawsuit. What is relevant is that Lambie-Thomas & Co as the Defendants' attorneys-at—law in a related matter and being in contact with the Defendants is in a position to bring the contents of the said documents to their attention, as is required by Rule 5.14 of the CPR.”
The grounds as filed are somewhat concentric, and they overlap considerably and so, for ease of reference, I have condensed these grounds into three main issues:
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(1) whether the learned judge erred in finding that rule 5.14 of the CPR does not permit alternative service of a claim form on an attorney-at-law and that such service is permitted only by rule 5.6 of the CPR (grounds a., c., and f.);
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(2) whether the appellant had satisfied the test for service by specified method to be permitted under rule 5.14 of the CPR (ground b.); and
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(3) whether the learned judge failed to apply the correct test in setting aside an order for alternative service (grounds d. and e.).
It is perhaps helpful to note at this point that although the defendants in the court below are cited as respondents herein, they are not parties to this appeal and are not represented by Lambie-Thomas & Co in relation to this matter. My understanding of the dynamics involved in this appeal is that the submissions filed by Lambie-Thomas & Co are filed solely on its behalf as it was the party who sought and obtained the orders made by the learned judge in the court below.
Before addressing the issues arising on this appeal, it is important to register the court's appreciation of the appellate function in a case of this kind. An order arising from a decision by the learned judge below, in relation to the provisions of rule 5.14 of the CPR, is discretionary and based upon an interpretative analysis of relevant facts. Therefore, in deciding whether to interfere with the exercise of the learned judge's discretion, this court must have regard to the principles enunciated in Hadmor Productions Ltd and others v Hamilton and others [1982] 1 All ER 1042 (‘ Hadmor Productions Ltd’) where, at page 1046, Lord Diplock stated that:
“…the function of an appellate court, whether it be the Court of Appeal or your Lordship's House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge's exercise of his discretion on the ground that it was based on a misunderstanding of the law or of the evidence before him or on an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn...
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