Verona Coley Banton v Marcia Coley, Nancy Tulloch-Darby & Derrick Darby

• Jurisdiction: Jamaica
• Judge: Sykes J (Ag)
• Judgment Date: 03 May 2002
• Judgment citation (vLex): [2002] 5 JJC 0302
• Docket Number: SUIT NO. C.L. 2001/B-201
• Court: Supreme Court (Jamaica)
• Date: 03 May 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 2001/B-201

BETWEEN

VERONA COLEY BANTON

1 ^ST PLAINTIFF

AND

MARCIA COLEY

2 ^ND PLAINTIFF

AND

NANCY TULLOCH-DARBY

1 ^ST DEFENDANT

AND

DERRICK DARBY

2 ^ND DEFENDANT

APPLICATION TO SET ASIDE ORDER FOR SUBSTITUTED SERVICE

CIVIL PROCEDURE - Substituted service - Application to set aside - Judicature (Civil Procedure Code) Law, s. 35

Sykes J (Ag)

1 The respondent to this summons is the first plaintiff in this matter. She issued a writ of summons, for service within the jurisdiction, against the two defendants. She cannot find the first defendant to effect personal service on her. She needs to serve her writ.

2 Section 35 of the Civil Procedure Code states:

When service is required the writ shall wherever it is practicable be served by delivering to the defendant a copy of such writ under the seal of the Court; but if it be made to appear to the Court or a Judge that the plaintiff is from any cause unable to promptly to effect service in manner aforesaid, the Court or Judge may make such order for substituted service or other service, or for the substitution for service of notice by advertisement or otherwise as may be just.

3 It is clear that the court has the power to order substituted service whenever personal service "from any cause" cannot be effected. However before the court can do this the applicant for substituted service must satisfy the court that there are good grounds for granting the order. This is set out in section 44 of the Code which states:

Every application to the Court or a Judge for an order for substituted or other service, or for the substitution of notice for serice, shall be supported by an affidavit, setting for the the grounds upon which the application is made.

4 The respondent prayed in aid these two sections when she filed her summons dated the 8 ^th of October 2001 applying for substituted service supported by her affidavit. The master heard the application on December 3, 2001 and granted the application.

5 The order was to the effect that the writ of summons and statement of claim could be served on the applicant on the summons before me, Horace Tulloch, who is the father of the first defendant. He now seeks to have that order set aside. He says in his affidavit dated March 27, 2002 that on March 15, 2002 he was served with an ex parte order for substituted service, an "undated affidavit of Verona Coley Banton", a copy of a writ of summons and a statement of claim.

6 Mr. Tulloch says at paragraph 10 of his affidavit that he has no knowledge of the whereabouts of the first defendant. He adds that the relationship between himself and his daughter have deteriorated to such an extent they do not communicate with each other. In effect, he is saying that there is no reasonable probability that the writ and statement of claim will come to the knowledge of the first defendant. I have deliberately summarised Mr. Tulloch's affidavit in his way for reasons which will become quite clear.

7 Mr. Terrelonge has asked me to dismiss the summons on a number of grounds which will now be examined. He submits that the court has no power at this stage to set aside the order unless there has been some material non-disclosure or deception practiced on the court or the court was mislead.

8 Mr. Terrelonge's submission seems to have overlooked the nature of an ex parte order. Whilst it is true that the court can set aside an ex parte order on the bases mentioned, the law as I understand it does not say that those are the bases. Lord Denning M. R. in the case of Becker v Noel and Another [1971] W.L.R. 803 had this to say about ex parte orders at 803:

Not only may the court set aside an order made ex parte, but where leave is given ex parte it is always within the inherent jufisdiction of the court to revoke that leave if it feels that it gave its original leave under a misapprehension upon new matters being drawn to its attention.

9 Lord Denning M.R. was saying that once new information comes before the court then it has an inherent power to revoke any order that it had made. I dO not understand the Master of the Rolls to be saying that only a material non-disclosure, deception or misleading of the court by the applicant could be the bases of discharging an ex parte order. The Master of the Rolls used the word "misapprehension". This word is sufficiently neutral to cover the bases identified by Mr. Terrelonge as well as just simply new information that was not before the court. No one needs be at fault. In the instant case the respondent could not be accused of not making full disclosure.

10 A few years later another Master of the Rolls dealt with the nature of an ex parte order. In WEA Records Ltd. v Visions Channel 4 Ltd. [1983] W.L.R. 721 Lord Donaldson M.R. said at page 727

As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, -whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibitedfrom...