Shirley Beecham v Fontana Montego Bay Ltd

• Jurisdiction: Jamaica
• Judge: Anderson, K.
• Judgment Date: 26 May 2014
• Neutral Citation: [2014] JMSC Civ 119
• Docket Number: CLAIM NO. 2012 HCV 02551
• Court: Supreme Court (Jamaica)
• Date: 26 May 2014

[2014] JMSC Civ. 119

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2012 HCV 02551

Between

Shirley Beecham

Claimant

and

Fontana Montego Bay Ltd. t/a Fontana Pharmacy

Defendant

Tamiko Smith , instructed by Frater, Ennis & Gordon for the Claimant

Reiba Harper , of counsel, for the Defendant

APPLICATION TO SET ASIDE DEFAULT JUDGMENT — SERVICE BY REGISTERED POST — PRESUMPTION OF SERVICE — DISPLACEMENT OF PRESUMPTION OF SERVICE — DEFAULT JUDGMENT IRREGULARLY ENTERED — IMPROPER PARTY NAMED AS DEFENDANT — SUBSTITUTION OF DEFENDANT — DEFENCE WITH REALISTIC PROSPECT OF SUCCESS — DUTY OWED BY OCCUPIER TO TRESPASSER

Anderson, K., J

1 The defendant filed on April 15, 2013, an application to set aside default judgment. That application was, with this court's permission, amended at a hearing in Chambers, which was held on July 8, 2014.

2 That application is supported by the affidavit of R. Therrien, which was filed on April 15, 2013.

3 Two affidavits were filed by the claimant in response and both of those affidavits have been deponed to by attorney Tamiko Smith. Those affidavits were respectively filed on January 20, 2014 and February 27, 2014.

4 A further affidavit was deponed to by R. Therrien and filed on June 5, 2014, in response to the affidavit evidence of Tamiko Smith. This court has given careful consideration to the defendant's amended application for court orders and all affidavit evidence both in support as well as in opposition to said amended application.

5 The parties named in this matter, are: Shirley Beecham – claimant and Fontana Montego Bay Ltd. – defendant. The heading of this claim on the claim form states that the defendant is trading as “Fontana Pharmacy.”

6 The defendant has contended that it does not trade as “Fontana Pharmacy” and that instead, it is “Fontana Ltd.” that trades as “Fontana Pharmacy.” It has given evidence of this, via one of the directors of Fontana Ltd. – Mr. Raymond Therrien, who is also a director of Fontana Montego Bay Ltd. The claimant has, essentially, asked this court to draw the inference that the defendant trades as “Fontana Pharmacy,” but has not, as it could have done, brought before this court, any documentary evidence to prove that “Fontana Pharmacy” is a business name registered under the Business Names Act and is a business name being utilized for trading purposes, by the defendant. Not surprisingly therefore, in her most recently filed affidavit evidence, attorney Tamiko Smith has expressly requested that this court substitute the name “Fontana Ltd.” as defendant, trading as “Fontana Pharmacy.” Nonetheless though, the claimant still seeks to obtain the benefit of the default judgment which was entered in her client's favour, as against the only named defendant, via the Registrar. As such, this court must first determine whether or not the default judgment entered against the defendant should be set aside and, it could only be, if that were done, that this court could then even properly be in a position to make an order substituting “Fontana Ltd.” as the defendant, for the only named defendant at present, which is: “Fontana Montego Bay Ltd.”

7 What this court must first determine, in deciding on whether to set aside the default judgment, which was entered against the defendant, by order of the registrar, on January 31, 2013, is whether that judgment was irregularly entered. The view may be held by some, that if so, this court has no discretion and must set it aside. The wording of rule 13.2 (1) of the Civil Procedure Rules (CPR) , which is seemingly framed in mandatory terms, may be viewed by some, as necessitating such an interpretation. In particular, rule 13.2 (1) (a) of the CPR is applicable to this matter at this stage, since the default judgment was entered arising from the defendant's failure to file an acknowledgement of service within the requisite time period of 14 days, following upon that which the claimant has alleged, was the service upon them, via registered post, of the claim form, particulars of claim and other accompanying court documents.

8 One of the conditions to be satisfied, if the registrar is to properly enter a default judgment against a defendant, arising from a failure by that defendant to file an acknowledgement of service within the requisite time period, is that the claimant “ must prove service of the claim form and particulars of claim on that defendant .”

9 Rule 5.7 of the CPR enables service on a limited company, such as is the defendant, via registered post addressed to the registered office of that company.

10 Rule 5.11 of the CPR addresses the matter of proof of postal service. The rules of court cannot be read from segment to segment, or rule to rule, or even from part to part, in isolation. Instead, the rules should always be interpreted in terms of the rules set out therein, in the overall context of other pertinent rules of court. Rule 5.11 (2) (b) of the CPR therefore, when considered contextually, must be taken as requiring, in terms of proof of service upon a limited company, where the means of service utilized, is registered post, that the address to which that registered post was sent, must be shown to the Supreme Court registrar's satisfaction, to have been the registered office address of the defendant.

11 The affidavit of service by registered mail, which was deponed to by a clerk in the law firm of Frater, Ennis & Gordon and filed on August 2, 2012, has stated that the claim form etc. were sent via registered mail and has exhibited thereto, the applicable registration slip, which is dated May 14, 2012. There was though, absolutely no affidavit evidence provided to the registrar as to the registered office address of the defendant having been the address to which said documents were sent via registered post. Accordingly, the prerequisite condition for the entry of a default judgment against the defendant on the ground of failure to file an acknowledgement of service, was not met and as such, based on the evidence which was presented to her by the claimant leading up to the entry of the default judgment, it is apparent to this court, that the registrar erroneously and irregularly entered the default judgment against the defendant.

12 Does this though, in and of itself, oblige this court, in each and every circumstance where that required evidence of service was deficient, in terms of the relevant rules of court, to set aside the default judgment irregularly so obtained? The language used in rule 13.2 of the CPR suggests that this is so. The word “must” though, when used in statutory instruments or in legislation, is not always to be interpreted as being mandatory. See: Charles (Herbert) v Judicial and Legal Service Commission and another– [2002] 61 WIR 471 / [2002] UKPC 34 and Matthews (Charles) v The State– [2000] 60 WIR 390, per de la Bastide CJ. See also: Hoip Gregory v Vincent Armstrong– SCCA No. 80 of 2006 – application No. 81 of 2006 and Hoip Gregory v O'Brien Kennedy– SCCA No. 81 of 2006 – application No. 165/2006.

13 In the present case, the defence counsel has quite properly and laudably, conceded that the registered office address of the defendant is in fact: Fairview Shopping Center, Montego Bay Post Office, in the parish of St. James – this being the address made known to the registrar in the affidavit evidence of Ms. Whytehead, as being the address to which the relevant court documents were sent via registered post and to which the defendant did not respond by filing the requisite court documents within the requisite time period. Surely, such being the case, it would be a manifest injustice for the default judgment to be set aside and would also be a manifest wastage of time and costs, bearing in mind that, such being the case, it would be apparent to this court, that the defendant was presumptively served and thus, if there exists no evidence to displace that presumption, then the failure to have filed an acknowledgement of service within 14 days of the date when the relevant court document were presumptively so served, must mean that this court, as a matter of justice, should take it that the default judgment was properly entered against the defendant. As such therefore, this court does not consider that in all circumstances, the provisions of rule 13.2 (1) (a) of the CPR are mandatory. This court though, does accept that the circumstances are extremely rare, in which the provisions of rule 13.2 (1) (a) of the CPR will not, whenever, in the case of failure to file an acknowledgement of service, any of the conditions of rule 12.4 was not satisfied, result in an application to set aside default judgment being granted by this court, but, this is one of those extremely rare cases.

14 In circumstances wherein a claim form and other court documents have purportedly been served by means of registered post, the same will, in accordance with our rules of court, be deemed to have been served, 21 days after the date indicated on the post office receipt. See rule 5.19 (1) and 6.6 of the CPR in that regard. Rules 5.7 of the CPR provides that service on a limited company – which is what the defendant is, may be effected by sending the claim form by prepaid registered post to the registered office of the company. That is the means of service upon the defendant, which was utilized by the claimant.

15 As such, it is deemed by the court, unless the contrary has been shown, that the pertinent court documents were served on the defendant, as of 21 days after the date indicated on the post office receipt. In the case at hand, the date indicated on the post office receipt is: May 14, 2012. The default judgment was entered against the defendant on January 31, 2013 and was filed on August 28, 2012. As such, there can be no doubt that, in the absence of evidence to the...