Trade Board Ltd and Another v Daniel Robinson

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,Brooks JA
• Judgment Date: 06 December 2013
• Neutral Citation: JM 2013 CA 128
• Docket Number: SUPREME COURT CIVIL APPEAL NO 120/2011
• Date: 06 December 2013
• Court: Court of Appeal (Jamaica)

[2013] JMCA Civ 46

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 120/2011

Between

Trade Board Limited

1st Appellant

and

The Attorney General of Jamaica

2nd Appellant

and

Daniel Robinson

Respondent

Ms Carlene Larmond and Harrington McDermott instructed by Director of State Proceedings for the appellant

Glenroy Mellish and Mrs Kerri-Gaye Rushton instructed by Glenroy W Mellish and Co for the respondent

CIVIL PROCEDURE - Default judgment - Leave to set aside default judgment - Defence filed out of time - Whether defendant has a good prospect of succeeding

Morrison JA

1 I have read, in draft, the judgment of Brooks JA. I agree with his reasoning and conclusion and have nothing to add.

Phillips JA

2 I too have read the draft judgment of Brooks JA. I agree and have nothing further to add.

Brooks JA

3 On 21 October 2011, Lawrence-Beswick J (as she then was) delivered a judgment refusing an application by Trade Board Limited and The Attorney General of Jamaica (the appellants) whereby they sought orders to set aside a judgment in default of defence entered against Trade Board and for a defence, in respect of both, which had been filed out of time, to stand. The appellants have appealed against that decision, arguing that the learned judge erred by:

• ‘a. holding that [Trade Board] did not have a good explanation for its failure to file its Defence in time;

• b. holding that [Trade Board] did not have a real prospect of successfully defending the Claim.’

4 Mr Daniel Robinson, the bailiff for the parish of Saint James, filed the claim from which the application had emanated. It was filed on 27 July 2010. In the claim, Mr Robinson asserted that Trade Board delivered a writ of seizure and sale to him instructing him to execute it against the property of Grains Jamaica Limited. The writ was in the sum of $209,860,694.56. He executed the writ on 28 August 2002. He claimed that Trade Board owed him the sum of $24,886,044.00 as fees and expenses incurred as a result of his having done so. His claim against the Attorney General was for the identical sum. He asserted that the Attorney General had, by letter dated 1 February 2007, given him an undertaking to pay his fees and costs in respect of the said writ.

5 The appellants failed to file their defence within the time prescribed by part 10 of the Civil Procedure Rules (the CPR). Consequently, Mr Robinson entered a judgment in default of defence against Trade Board (in respect of which no permission was required) and abandoned the claim against the Attorney General (in respect of which permission would have been required). It is for that reason that the application before Lawrence-Beswick J was not identical for both appellants.

The submissions

6 The appellants contended in this appeal, that they have a defence which has merit as it is based on the fact that, although it is Trade Board that requested Mr Robinson's services, Trade Board is not the creditor that has first priority in benefitting from the execution of the writ against Grains Jamaica Limited. The appellants contended that it is Peppersource Limited that is the creditor that holds first priority and should, therefore, be responsible for Mr Robinson's fees. To hold Trade Board responsible, the appellants argued, would result in the inequitable position whereby Trade Board would be responsible for paying Mr Robinson's fees and expenses, while Peppersource reaps the benefit of his work. The appellants contended that as the writ was issued by the court and it is the court that fixed the order of priority of creditors, the proper course, therefore, is for the court to identify the party that is liable to Mr Robinson.

7 In addition to that position, it was contended that the Attorney General did not give an undertaking to Mr Robinson. The Attorney General asserted that the letter, to which Mr Robinson points as containing an undertaking, cannot properly be construed as so doing.

8 Based on those positions the appellants argued that the learned judge's decision should be set aside and that they should be allowed to defend the claim.

9 Mr Mellish, on behalf of Mr Robinson, argued that the learned judge was correct in finding that the appellants had not satisfied the established requirements for the application that they had filed. He asserted that not only was there no good explanation for the delay in filing the defence but that the defence, as filed, was a bare denial of the claim and, therefore, had no merit.

10 On the merits of the defence, he contended that the law is clearly in Mr Robinson's favour. He asserted that the party who engages the bailiff is responsible for his fees and expenses. There is no basis, Mr Mellish argued, for Mr Robinson to approach any other party in respect of those fees and expenses. For completeness, it must be said that there were other writs of seizure and sale that were issued by the court in respect of Grains Jamaica Limited, but it was the writ that was issued at the request of Trade Board that had been executed.

The analysis

11 In assessing this appeal, the main issue to be decided is whether the learned judge erred in exercising her discretion not to set aside the judgment in default. There are a few subsidiary issues in considering the main issue. They concern the matters to be considered in applications for setting aside a default judgment and for the extension of time for filing a defence. The analysis of the issue of an extension of time to file a defence is closely allied to the issues involved in considering an application to set aside a default judgment and therefore both aspects of the present application will be considered as one. In addition to those issues, the question of the liability of an execution creditor for the bailiff's fees for executing a writ of seizure and sale, also arises for consideration.

12 Two preliminary points should be noted. It will be borne in mind that this court will not lightly set aside a decision made by a judge at first instance in exercise of a discretion given to that judge (see Hadmor Productions Ltd and Others v Hamilton and Another [1983] 1 AC 191 ). Secondly, it should be noted that, initially, there was a complaint that the judgment against Trade Board had not been regularly entered. That complaint has been abandoned. Since there is now no dispute as to the regularity of the default judgment, it is rule 13.3 of the CPR that is relevant to this application.

13 Rule 13.3 requires a party who is applying to set aside a default judgment, to show that it has a real prospect of successfully defending the claim. In assessing the application the court must consider whether the applicant has:

• ‘(a) applied to the court as soon as is reasonably practicable after finding out that judgment has been entered.

• (b) given a good explanation for the failure to file an acknowledgement of service or a defence, as the case may be.’ (rule 13.3(2))

The substantive test is, however, whether the applicant has any real prospect of successfully defending the claim.

14 In assessing the other elements of delay and an explanation it may first be noted that there was no issue of any delay by Trade Board in making its application. The application was filed on 11 March 2011, which was the same day that Trade Board's attorneys-at-law were served with the default judgment. In considering the explanation for the failure to file a defence within the specified time, in the context of rule 13.3, the learned judge outlined the explanation given by Trade Board. She said at paragraph 9 of her judgment:

‘Counsel for the Trade Board argues that it was unable to file a defence because it did not have sufficient instructions and had requested information from Bailiff Robinson which had not been forthcoming in time.’

15 The learned judge was dismissive of the explanation. She noted that not only had a statement of defence been filed on the same day that the request for information was filed, but that all the information requested of Mr Robinson was already in the possession of the attorneys-at-law who had conduct of the matter for Trade Board. Those very attorneys-at-law had, in other proceedings concerning Grains Jamaica Limited, collaborated with Mr Robinson about the details of the writ of seizure and sale as well as related matters. Indeed, it was through those attorneys-at-law that the writ in question was requested. The learned judge, at paragraph 10 of her judgment, noted the connection between the respective proceedings. She said:

‘…The Counsel who signed the Draft Defence and the Request for Information was the same counsel who appeared for the Trade Board in that related appellate matter [involving Mr Robinson's application to intervene in a dispute over the priority of interests in the proceeds of sale of the assets of Grains Jamaica Limited].’

She futher noted that the records indicated that those very attorneys-at-law, ‘had initially represented Bailiff Robinson in the related matter of Pepper Source v Trade Board and Grains Jamaica Limited CL 2002/T031, and…[had] filed Bailiff Robinson's affidavits, on his behalf, based on the existence of the Writ of Seizure and Sale and an acceptance of its attendant circumstances’. The learned judge was quite correct in her approach to that explanation.

16 Although the learned judge properly rejected the reason given for the failure to file a defence in time, the authorities show that the absence of a good reason is not, by itself, fatal to an application of this type. Finnegan v Parkside Health Authority [1998] 1 All ER 595 is one of the authorities that is usually relied upon in support of that principle. In that case, the headnote accurately...