Shtern (Adele) v Villa Mora Cottages Ltd, Monica Cummings and Keith Black

• Jurisdiction: Jamaica
• Judge: McDonald J. Ag.
• Judgment Date: 09 June 2006
• Judgment citation (vLex): [2006] 6 JJC 0901
• Date: 09 June 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. C.L. S. 224 OF 1999

BETWEEN

ADELE SHTERN

CLAIMANT/REPONDENT

AND

VILLA MORA COTTAGES LIMITED

1 ^ST DEFENDANT/APPLICANT

AND

MONICA CUMMINGS

2 ^ND DEFENDANT/APPLICANT

AND

KEITH BLACK

3 ^RD DEFENDANT/APPLICANT

Miss Carol Davis for Claimant/Respondent

Mr. Eric Frater and Miss Latoya Stephenson for 1 ^st , 2 ^nd and ^rd Defendants/Applicants

CIVIL PROCEDURE - Extension of time - Application

CIVIL PROCEDURE - Restoration of defence - Application

McDonald J. Ag

1 On April 20, 2006, the Applicants issued a Notice of Application for Court orders seeking:-

• i) an extension of time to file witness statements out of time

• ii) that their Defence be restored and trial proceed on the merit

2 Chronology of Facts

3 The Claimant filed a Writ of Summons and Statement of Claim on October 26, 1999.

4 The Defendants filed a Defence on March 20, 2000 (claimant's consent obtained to file out of time).

5 Claimant's reply to Defence filed on May 11,2000

6 (Defendants' consent obtained to file out of time)

7 Summons for Directions filed on June 27, 2000 and consent order on Summons for Directions granted on September 26, 2000. Matter came up for trial on July 22, 2002 and November 25, 2002 respectively and on each occasion adjourned sine die.

8 Case Management Conference held on July 9, 2004. Amended Statement of Claim filed July 9, 2004.

9 Amended Defence filed July 13, 2004

10 Pretrial Review held on June 6, 2005 and adjourned to December 6, 2005.

11 Defence struck out at adjourned Pre-Trail review on December 6, 2005.

12 Judgment entered for the Claimant on December 13, 2005 with damages to be assessed on May 3, 2006.

13 Assessment of Damages set for May 3, 2006 adjourned to June 13, 2006 pending the application to set aside fixed for hearing on May 9,2006.

14 Case Management Conference

15 Jones, J made a number of orders at the Case Management Conference on July 9, 2004, the most relevant being:-

• i) All expert reports to be filed and served on the Defendants on or before 14 ^th July, 2004

• ii) The Defendant to be given permission to file and serve an amended Defence on or before 14 ^th July, 2004.

• iii) That both parties give to the other Standard Disclosure of documents on or before 16 ^th September, 2004; Inspection of documents by 23 ^rd September, 2004.

• iv) Witness statements to be exchanged by each witness that the parties intend to call by 30 ^th November 2004.

• v) Trial to be set for three (3) days - 26 ^th , 27 ^th , and 28 ^th February, 2007.

16 Pre-Trial Review

17 I will only list orders made by Mangatal J on June 6, 2005 which I deem relevant. They are as follows :-

• 1) Permission is granted to the Claimant to call and put into evidence the report of Mr. Levi Somerville, Professional Engineer at the trial.

• 2) The Defendants to file and serve a list of Documents by July 29, 2005 failing which the Defence stands struck out.

• 3) Time for exchange of witness statements be extended to November 25, 2005.

18 On December 6, 2005 the Defence was struck out by Gayle J. (Ag.) and on December 13, 2006 Judgment entered for the claimant with assessment of damages set for hearing on May 3, 2006.

19 There is no contest that the Defence was struck out pursuant to orders of June 6, 2006 and December 6, 2005; and that the right to enter judgment had arisen because the Defendants failed to comply with the "unless" order of June 6, 2005.

20 In summary there is no dispute.

• 1. that the Defence was properly struck out

• 2. that judgment was properly entered under rule 26.5

• 3. that the claimant can apply to set aside the judgment under rule 26. 6 CPR 2002.

21 Rule 26.6 states that:-

• (1). A party against whom the Court has entered judgment under rule 26.5 when the right to enter judgment has not arisen may apply to the Court to set it aside.

• (2) An application under paragraph (1) must be made not more than 14 days after the judgment has been served on the party making the application.

• (3) Where the right to enter judgment has not arisen at the time when judgment was entered, the Court must set aside judgment.

• (4) When the application to set aside is made for any other reason, rule 26.8 (relief from sanctions) applies.

22 In the present case, the right to judgment has properly arisen under rule 26.5, therefore this application is to be considered under rule 26.6(4). This rule points the Court to rule 26.8. It is evident that rule 26.6(1) and (2) are not applicable to the instant case.

23 Relief from Sanctions

24 Rule 26.8 states: -

• "(1) An application for relief...