Rhoden (Delroy) (by next friend- Edgar Rhoden) v Construction Developers Associates Ltd and Trevor Reid

JurisdictionJamaica
Judge DOWNER, J.A. , PANTON, J.A. , SMITH, J.A.
Judgment Date18 March 2005
Neutral CitationJM 2005 CA 17
Judgment citation (vLex)[2005] 3 JJC 1807
CourtCourt of Appeal (Jamaica)
Date18 March 2005
IN THE COURT OF APPEAL
BEFORE:
THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE SMITH, J.A
BETWEEN:
DELROY RHODEN (by Next Friend-Edgar Rhoden)
PLAINTIFF/APPELLANT
AND:
CONSTRUCTION DEVELOPERS ASSOCIATES LIMITED
1 ST DEFENDANT/RESPONDENT
AND:
TREVOR REID
2 ND DEFENDANT/RESPONDENT
Earl Witter instructed by Gentles & Willis for the Appellant
Hilary Phillips Q.C., and Andrea Benjamin instructed by Grant, Stewart, Phillips and Co., for the 1 st . Respondent
Dundeen Ferguson instructed by Ferguson Campbell & Co., for the 2 nd Respondent

CIVIL PROCEDURE - Default judgment

DOWNER, J.A.
1

There are two central issues to be determined in this interlocutory appeal. The first is whether the interlocutory judgment in default of defence against the first respondent, Construction Developers Ltd. is effective, so that the appellant Delroy Rhoden may proceed to assessment of damages. The second issue is whether there being no defence served by the second respondent Trevor Reid, on the appellant Rhoden, it is open to Rhoden to enter a judgment in default of defence and thereafter proceed to assessment of damages against the second respondent in the same proceedings. The appellant contends that he ought to succeed on both these issues. There is another issue concerning the dismissal of the appellant's statement of claim for want of prosecution by the order of Hazel Harris J. The appellant seeks to strike out that order as null and void. It was boldly contended by Mr. Earl Witter on behalf of the appellant, that even if the order in the court below was a valid one, it was wrongly decided. If this contention is correct then it has been argued that the appellant should have the costs both here and below.

2

How did the Judgment in Default come about?

3

Here is how the default judgment reads at page 32 of the record:

"NO DEFENCE filed by or on behalf of the first Defendant CONSTRUCTION DEVELOPERS ASSOCIATION LIMITED herein

IT IS THIS DAY ADJUDGED:

The Plaintiff claims against the First Defendant damages to be assessed and costs to be agreed or taxed.

Dated the 8 th day of January 1996 (signed)

ERROL GENTLES PLAINTIFF'S ATTORNEY-AT-LAW.'

4

A true copy of the default judgment from the registrar of the court below, supplied to this court during the course of appeal shows, that it was entered 19 th February, 1996.

5

Judgment in default of defence was only entered against one tort-feaser. At this stage the other defendant Trevor Reid could not be found for service. The entry of appearance was not included in the record so it is necessary to advert to the affidavit of Errol Gentles, the Attorney-at-Law for the appellant for the evidence of it. It states at page 16 of the record:

  • "4. That on the 18 th day of July, 1995, a copy of the Writ of Summons and Statement of Claim was served on the 1 st Defendant, by registered mail.

  • 5. That on the 26 th day of September, 1995 an Appearance was entered on behalf of the 1 st Defendant by Messrs. Grant, Stewart, Phillips & Co. and a copy was served on the Plaintiff's Attorneys-at-Law on the 27 th day of September, 1995."

6

Section 52 of the Judicature (Civil Procedure Code) Law (the Code) has this to say on the entry of appearance:

"52 The time for entering an appearance to a writ of summons shall be fourteen days from the service of the writ, exclusive of the day of service, unless the Court or a Judge shall otherwise direct."

7

Then section 199 of the Code dealing with the filing and delivery of a copy of the defence on the plaintiff states:

"199. Where a defendant has entered an appearance, he shall file his defence, and deliver a copy thereof, within fourteen days from the time limited for appearance or from the delivery of the statement of claim whichever is the later unless:-

  • (a) the time is extended by consent in writing or by the Court or a Judge; or

  • (b) the writ of summons is specially indorsed with or accompanied by a statement of claim under section 14 of this Law and the plaintiff in the meantime serves a summons for judgment under Title 13; or

  • (c) the writ of summons is specially indorsed with or accompanied by a statement of claim under section 14 of this Law and contains a notice that the plaintiff intends to apply under Title 13B for a trial without pleadings."

8

The first respondent, Construction Developers did not comply with Section 199 of the Code, so the appellant Rhoden entered a judgment in default. The serving of a defence by the 1 st respondent Construction Developers Associates Ltd. on 22 nd February 1996 when the default judgment was entered on 19 th February, 1996 does not alter the position as regards compliance.

9

Consequence of failure to comply with section 199 of the Code

10

Once there is an entry for default judgment section 247 of the Code authorized the appellant Rhoden to proceed to interlocutory judgment for damages. It reads:

" Interlocutory judgment for damages. * #3

247. If the plaintiff's claim is, as against any defendant, for unliquidated damages only, and that defendant does not, within the time allowed for that purpose, deliver a defence, the plaintiff may enter interlocutory judgment against him for damages to be assessed and costs, and proceed with the action against the other defendants, if any."

11

At this stage it is necessary to refer to the Statement of Claim. It reads as follows at pages 4-5 of the record:

"BETWEEN DELROY RHODEN (By Next Friend Edgar Rhoden) PLAINTIFF

AND CONSTRUCTION DEVELOPERS ASSOCIATES LIMITED 1st DEFENDANT

AND TREVOR REID 2 ND DEFENDANT

  • 1. The Plaintiff is a schoolboy aged 13 years and is the son of his next friend Edgar Rhoden.

  • 2. The Plaintiff at the material time was attending Excelsior High School at Mountain View Avenue in the parish of St. Andrew.

  • 3. The first Defendant is a registered company incorporated under the Companies Act and has its registered office at 11 Dunrobin Avenue, Kingston 10 in the parish of St. Andrew and the second Defendant was employed to first Defendant as driver.

  • 4. The first Defendant at the material time was the registered owner of motor vehicle licensed 9494AS and the second Defendant was the driver of the said motor vehicle as the servant or agent of the first Defendant.

  • 5. On the 14 th of December 1994 the Plaintiff was standing at a bus stop along Mountain View Avenue in the parish of St. Andrew awaiting the arrival of a bus when the second Defendant so negligently drove the said motor vehicle that it crashed into the bus stop and hit the Plaintiff."

12

Then the particulars of negligence read thus:

"PARTICULARS OF NEGLIGENCE

  • (1) Failing to keep any or any proper look out or to have due regard for other road users.

  • (2) Failing to keep a straight course.

  • (3) Failing to stop, slow down or in any other way so to manage or control the motor vehicle so as to avoid the impact."

13

The following paragraphs complete the Statement of Claim:

"PARTICULARS OF INJURIES

  • (a) Mild contusion to left occipital region.

  • (b) Cerebal concussion

  • (c) Abrasions to left scapula and left hip region

PARTICULARS OF SPECIAL DAMAGE

(a)

Medical Expenses

$2000.00

(b)

Cost of Transportation to doctor

500.00

(c)

Cost of medical report

350.00

Total

$2,850.00

6. The said injuries and damage were occasioned to the Plaintiff by reason of the negligence on the part of the second Defendant

7. The Plaintiff will rely on the principle Res Ipsa Loquitur."

14

So far as the judgment in default is concerned "a prudent commercial lawyer ought to act promptly to set aside the default judgment". It was so stated in Workers Savings & Loan Bank v Winston McKenzie Benros Company Limited et al. S.C.C.A. Nos 102 and 103/96 delivered December 3, 1996. In so ruling, this court was following the classic judgment of Evans v Bartlam [1937] 2 All E.R. 646. Here is how Lord Atkin puts it at page 650:

"I agree that both R.S.C., Ord. 13, r. 10, and R.S.C., Ord. 27, r. 15, give a discretionary power to the judge in chambers to set aside a default judgment. The discretion is in terms unconditional. The courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the applicant must produce to the court evidence that he has a prima facie defence. It was suggested in argument that there is another rule, that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure."

15

The corresponding section to the Rules of the Supreme Court (R.S.C.) cited above in the Code is section 258 which reads:

"258. Any judgment by default, whether under this Title or under any other provisions of this Law, may be set aside by the Court or a Judge upon such terms as to costs or otherwise as such Court or Judge may think fit."

16

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