Thorpe (Merlene) v United Estates Ltd

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 20 June 2006
• Judgment citation (vLex): [2006] 6 JJC 2001
• Court: Supreme Court (Jamaica)
• Date: 20 June 2006
• Docket Number: CLAIM NO. 2005 HCV 00257

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2005 HCV 00257

BETWEEN

MERLENE THORPE

CLAIMANT

AND

UNITED ESTATES LIMITED

DEFENDANT

CIVIL PROCEDURE - Default judgment - Setting aside

BROOKS, J

1 United Estates Ltd. has good reason to apply to set aside a default judgment entered against it in this claim. It however wants more; it wants the court to find that the default judgment was irregularly entered, and it wants a wasted costs order against the Attorneys-at-Law acting for the Claimant Miss Merlene Thorpe. It seeks these remedies despite the fact that it filed its defence out of time.

2 Background

3 Miss Thorpe was employed to pick oranges at a citrus grove in Bog Walk in the parish of Saint Catherine. She alleges that she was in the course of carrying out her duties, when a limb of an orange tree hit her on the eye. She says that as a result she has lost sight in that eye. She alleges that United Estates was her employer at the time, and that it was that company's negligence which caused her misfortune. She has filed this claim against it to recover compensation for her injuries. United Estates, for its part, seeks to defend the claim on the basis that it was not Ms. Thorpe's employer and owed her no duty of care.

4 The chronology of events relevant to this application is as follows.

1

16-2-2005 - Claim Form and Particulars of Claim served on United Estates. 2. 7-3-2005 - Acknowledgement of Service of Claim Form filed 3. 7-3-2005 - Dyoll Insurance Company Ltd, (insurer for United Estates, and which instructed Attorneys-at-Law for it), placed under the control of a Temporary Manager. 4. 20-6-2005 - United Estates retained new Attorneys-at-Law: Messrs Myers Fletcher and Gordon (MFG). 5. 21-6-2005 - Notice of Change of Attorney filed by MFG. 6. 22-6-2005 - MFG wrote to Ms. Thorpe's Attorneys-at-Law, Messrs Kinghorn and Kinghorn, (Kh & Kh) requesting further time in which to file a defence. 7. 29-6-2005 - Kh & Kh wrote to MFG refusing to accede to the request. 8. 5-7-2005 - MFG wrote to Kh & Kh sending, by fax, a copy of the proposed defence and indicating an intention io file it that day. 9. 6-7-2005 - Document entitled "Defence" filed. 10. 12-7-2005 - Request for Judgment in Default of Defence filed 11. 17-8-2005 - Judgment in Default of Defence entered. 12. 14-12-2005 - Judgment in Default of Defence served on United Estates, and notice of Assessment of Damages served on MFG. 13. 28-12-2005 - Application to set aside Default Judgment filed.

5 Have the requirements of Rule 13.3 been satisfied?

6 The question at this stage is whether that chronology would have demonstrated that the three requirements of Rule 13.3 (1) of the Civil Procedure Rules 2002 (CPR) have been satisfied. That rule allows the court to exercise a discretion whether or not to set aside the default judgment and to give leave to defendant/applicants to defend actions. It says as follows:

• "13.3 (1) Where rule 13.2 does not apply, the court may set aside a judgment entered under Part 12 only if the defendant-

  • a) applies to the court as soon as reasonably practicable after finding out that judgment has been entered;

  • (b) gives a good explanation for the failure to file an acknowledgement of service or a defence as the case may be; and

  • (c) has a real prospect of successfully defending the claim." (Emphasis supplied)

7 It is now well established that the court has no discretion to set aside the default judgment unless the defendant meets all aspects of the triple test laid down by rule 13.3 (1). See Caribbean Depot Ltd. v. International Seasoning & Spice Ltd . S CCA 48/2004 (delivered 7 th June 2004).

8 The evidence to be considered comes from Mr. David McConnell, the Manager for United Estates, in an affidavit sworn to on 22 ^nd December 2005 and filed in support of the application. For the first limb of the rule, Mr. McConnell does not depose as to the reason for the fourteen day delay in filing this application to set aside the Default Judgment. It is noted however that the application was filed during the court's Christmas break. I am prepared to find that although there was that lapse after the discovery of the entry of the default judgment, the intervening Christmas holiday made the application one which was filed as soon as was "reasonably practicable".

9 In respect of the second limb, I find that United Estates has demonstrated that it has a good explanation for its failure to file the defence in time. Mr. McConnell deposed that it was by letter dated 17 ^th June 2005 that United Estates' insurance brokers advised it that the retainer of its previous Attorneys-at-Law had been terminated by the Temporary Manager for Dyoll Insurance. The intervention of the Temporary Manager can be inferred as being the reason for the previous Attorneys-at-Law not preparing a defence as they ought to have done. This omission would not have been the fault of United Estates.

10 Finally, United Estates would have a real prospect of succeeding on the Defence which it alleges that it has, if evidence in support, to the requisite standard, were placed before a judge at trial.

11 I find therefore that United Estates would have satisfied the triple test set out by rule 13.3(1).

12 Does Rule 13.2 apply?

13 Despite the situation where the court would grant an order in favour of United Estates pursuant to Rule 13.3, Mr. Kelman for United Estates asserts, that United Estates is entitled to an order pursuant to Rule 13.2 of the CPR. The relevant part of the latter rule states:

13.2. Cases where court must set aside...