Rohan Smith v Elroy Pessoa and Nickeisha Samuels

• Jurisdiction: Jamaica
• Judge: Phillips JA,McIntosh JA,Lawrence-Beswick JA (Ag)
• Judgment Date: 26 September 2014
• Neutral Citation: JM 2014 CA 94,[2014] JMCA App 25
• Docket Number: APPLICATION NO 58/2014
• Court: Court of Appeal (Jamaica)
• Date: 26 September 2014

[2014] JMCA App 25

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McIntosh JA

The Hon Ms Justice Lawrence-Beswick (Ag)

APPLICATION NO 58/2014

Between

Rohan Smith

Applicant

and

Elroy Hector Pessoa

1st Respondent

and

Nickeisha Misty Samuels

2nd Respondent

Richard Reitzin instructed by Reitzin and Hernandez for the applicant

John Givans instructed by Givans and Company for the respondents

CIVIL PROCEDURE - Default judgment - Leave to appeal - Order setting side default judgment - Court of Appeal Rules, Rule 1.8(9) - Whether claim form validly served where it does not have the proper claim reference

Phillips JA

1 This is an application for leave to appeal against the judgment of Edwards J made on 31 March 2014 in which she set aside a default judgment entered against the respondents by the applicant and ordered that the respondents' defence and counterclaim as well as an acknowledgment of service and amended acknowledgment of service filed on their behalf be allowed to stand as filed in time.

Background

2 On or about 30 May 2011, the applicant and the 2 ^nd respondent were involved in a motor vehicle accident along the Constant Spring main road in St Andrew. The applicant was riding a Siski motorcycle while the 2 ^nd respondent, Miss Nickeisha Samuels, was driving a 1988 Honda Civic motor vehicle. As a result of the accident, the applicant sustained injuries and on 19 August 2011, he commenced proceedings against the 1 ^st and 2 ^nd respondents as owner and driver respectively of the Honda Civic motor vehicle, claiming damages, interest and costs.

3 In paras 7 and 8 of his particulars of claim, the applicant gives this account of how the accident happened:

“7. … the claimant was riding the motor cycle in an approximately northerly direction along Constant Spring Road near a shopping plaza (in the direction of Constant Spring). At the same time, the second defendant was driving out of [a] shopping plaza and attempting to make a right-hand turn across the northern-bound lanes of traffic in Constant Spring to begin travelling in an approximately southerly direction along Constant Spring (in the direction of Half Way Tree) whereupon the motor vehicle collided with the motor cycle.

8. The collision was caused by the negligence of the second defendant in and about her care, management and/or control of the motor vehicle.”

4 There is some dispute over the date of service of the claim. According to the respondents, on the one hand, both respondents were served on 6 September 2011, while, on the other hand, the 2 ^nd respondent was served on 6 September and the 1 ^st respondent, Mr Elroy Pessoa, was not served. An acknowledgment of service was filed on behalf of both respondents on 4 October 2011 by Miss Nicosie Dummett, attorney-at-law for the respondents' insurers, NEM Insurance Co Ltd (as it was known then), indicating the date of service to be 6 September 2011, but this acknowledgment of service was subsequently amended and re-filed twice to indicate the non-service of the claim on the 1 ^st respondent. The applicant, however, contends that both respondents were served on 29 August 2011, and on 19 August 2011 notice of the proceedings was served on NEM Insurance Co Ltd. Judgment in default of acknowledgment of service was requested by the applicant and entered on 14 September 2011. A defence and counterclaim was filed on 28 October 2011.

5 On 2 December 2011, the respondents made an application seeking orders that:

1. The claim form and particulars of claim served without the proper claim reference number were not validly served.

2. The acknowledgment of service filed on 4 October 2011 be allowed to stand.

3. The time for filing the defence and counterclaim be enlarged to allow same filed on 28 October 2011 to stand and/or alternatively that the default judgment be set aside.

4. Permission be granted to file and serve the ancillary claim and particulars.

5. The respondents be granted relief from sanctions.

Among the grounds relied on were that the claim form and particulars had been served during the long vacation during which time did not run and that the claim form and particulars were without the claim number and could not be regarded as being properly served until the number was obtained on 27 September 2011. The application was supported by an affidavit filed by both respondents in which they stated that they had received the claim form and particulars on 6 September 2011 but the documents did not have a claim number. They deposed that they had handed the documents over to their insurer, NEM, on 8 September 2011 and that they had been advised by their attorney-at-law that the claim number was received on or about 27 September 2011. They further deposed that they had a good defence as “the long line of vehicles had stopped to allow the vehicle to exit the plaza” and they attached a copy of their draft defence. In the draft defence, several particulars of negligence were alleged against the applicant, which included overtaking a long line of traffic when it was unsafe to do so and travelling at “an excessive rate of speeding”. An affidavit sworn to by Karlene DaCosta, a paralegal employed to NEM, was also filed on the same day on behalf of the respondents. Miss DaCosta confirmed that the claim number was obtained by her on 27 September.

6 The application came on for hearing on 7 May 2012 before Master Bertram-Linton, at which time the matter was adjourned to 13 June 2012, apparently at the instance of the respondents, and the respondents were ordered to file and serve a further affidavit by 11 May 2012. There is no evidence as to what transpired at the hearing of the matter on 13 June 2012, but Mr Reitzin, in his summary of the factual background, indicated that certain objections were raised on behalf of the applicant to the further affidavit of the 2 ^nd respondent filed on behalf of the respondents on 11 May 2012. As a result of the objections, paragraphs of the affidavit were struck out wherein the 2 ^nd respondent deposed that: the motorist who had allowed her to exit the plaza had put on his “four way flasher” and had “fanned down” the vehicles behind to allow her to exit the plaza; the speed at which the applicant's motorcycle had been travelling did not allow him to stop; and a police report, which was exhibited was “a true and correct representation of how this accident occurred”. The hearing of the matter was then adjourned to 2 July 2012, but before that hearing date arrived, two affidavits, one sworn to by Miss Dummett and the other by the 2 ^nd respondent, were filed on behalf of the respondents on 26 June 2012 and 2 July 2012 respectively. When the matter came up before Master Bertram Linton on 2 July 2012, she ruled that the respondents were not allowed to rely on the two affidavits in light of her previous order of 7 May 2012. The matter was adjourned thereafter to 12 July 2012, 24 October 2012 and 28 January 2013, for reasons which are not apparent from the record, and on 28 January 2013, it was dismissed by the Master for want of prosecution.

7 On 21 May 2013, the respondents filed a second application seeking similar orders to those sought in the application made on 2 December 2011, in particular that the default judgment be set aside. The application was supported by an affidavit sworn to by the 1 ^st respondent, stating that he had not been served as the claim had been served on the 2 ^nd respondent at home when he was at work. He deposed that he and the 2 ^nd respondent handed over the documents to his insurer, NEM. An affidavit sworn to by Miss Dummett was also filed on that day. A perusal of her affidavit discloses that there were matters included in this affidavit which had been included in her affidavit that had been disallowed by the Master such as the service of the originating documents without the claim number; the non-inclusion of the claim number on these documents; and the judgment in default which had been granted before the time for the filing of the acknowledgment of service had passed. However, she deposed to certain other facts/information such as her discovery that only one set of the documents had been served and these were on the 2 ^nd respondent. She set out what she regarded as a good defence, which was that, according to the 2 ^nd respondent the applicant had been travelling at a fast speed, and in overtaking the long line of vehicles that had stopped to allow the 2 ^nd respondent to exit onto the road, had driven on the wrong side of the road. She explained that the reason for failing to file the acknowledgment of service in time was occasioned by the applicant's failure to include the claim number and that the application to set aside the default judgment had been filed on 2 December 2011, even though NEM had not received the default judgment until 29 March 2012. She indicated at para 38 of her affidavit that the second application was being “brought to address the apparent deficiencies in the previous application”.

8 An affidavit was also filed by the 2 ^nd respondent on 13 September 2013. It is clear from this affidavit that the 2 ^nd respondent also included evidence that had been included in her affidavit which had been disallowed by the Master: for instance, she deposed to certain observations she had made as to the manner in which and the speed at which the applicant was riding his motorcycle; that he had been engaging in a “manoeuvre fraught with danger” and that he had been warned for prosecution. She referred to and exhibited the police report, which stated that the applicant had been warned for prosecution.

9 The second application came on for hearing before Edwards J, who set aside the default judgment, ordered that the defence and counterclaim filed on 28 October 2011, the...