Yvonne Virgo v Granvin Graham

• Jurisdiction: Jamaica
• Judge: P Williams JA,Foster-Pusey JA,Simmons JA
• Judgment Date: 19 May 2023
• Neutral Citation: JM 2023 CA 59
• Docket Number: SUPREME COURT CIVIL APPEAL NO COA2022CV00066
• Court: Court of Appeal (Jamaica)

Between

Yvonne Virgo

Appellant

and

Granvin Graham

1 ^st Defendant

and

Uton Page

2 ^nd Defendant

and

Advantage General Insurance Company Limited

Respondent

[2023] JMCA Civ 31

Before:

THE HON Miss Justice P Williams JA

THE HON Mrs Justice Foster-Pusey JA

THE HON Miss Justice Simmons JA

SUPREME COURT CIVIL APPEAL NO COA2022CV00066

IN THE COURT OF APPEAL

Civil Procedure — Negligence — Motor vehicle collision — Service of originating documents — Order to dispense with personal service — Service by registered post — Default Judgment entered — Procedure for Insurer's application to intervene in proceedings — Whether the learned judge erred in setting aside the default judgment and in granting the insurer's application to intervene in the proceedings below

PROCEDURAL APPEAL (Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)

Written submissions filed by Oraine Nelson for the appellant

Written submissions filed by Ms Racquel Dunbar instructed by Dunbar & Co for the respondent

P Williams JA

1 I have read in draft the judgment of my sister Foster-Pusey JA. I agree with her reasoning and conclusion and have nothing further to add.

Foster-Pusey JA

Introduction

2 On 9 June 2022 the appellant, Ms Yvonne Virgo, filed a notice of appeal in this court to challenge the decision that Tie Powell J (‘the learned judge’) made on 2 June 2022 in favour of the respondent, Advantage General Insurance Company Limited. The learned judge made the following orders:

• “1. Permission is granted for [the respondent] to be an intervener in this proceeding.

• 2. The default judgement [sic] entered on May 31, 2017 (dated the 7 ^th day of July 2016 and filed on February 7, 2017) is set aside.

• 3. There is a stay of execution of the Final Judgement [sic] entered on the 16 ^th of January 2016, and filed on the 16 ^th of January 2018.

• 4. Costs to [the respondent]

• 5. Leave to appeal.”

Proceedings in the court below

3 In the reasons for her decision, the learned judge outlined the history of the matter in a concise manner, which I will gratefully adopt and supplement as required (see paras. [4]–[7] of her reasons).

4 The appellant alleged that, on 13 April 2013, she was injured in a motor vehicle accident while travelling in a motor vehicle owned by the 1 ^st defendant, Mr Granvin Graham, and driven by the 2 ^nd defendant, Mr Uton Page. She filed a claim against the defendants in the Supreme Court on 26 February 2014. Her attorney-at-law's efforts to personally serve the defendants failed. As a result, on 16 February 2015, the appellant obtained an order to dispense with personal service, and for service to be effected on the defendants by way of registered post addressed to the 1 ^st defendant at Toll Gate District, Toll Gate in the parish of Clarendon and the 2 ^nd Defendant at Gimme-Mi-Bit District, Clarendon. The appellant's counsel swore to the affidavit filed on 24 November 2014 in support of the application. One of the exhibits to counsel's affidavit was a signed but unfiled affidavit of Dave Quest, a bailiff at the time serving at the May Pen Resident Magistrates' Court in the parish of Clarendon. Mr Quest stated that on several occasions between June and July 2014he visited the May Pen bus park in search of the defendants, who together operated a public passenger vehicle,. He also visited the post office in the respective communities of Toll Gate and Gimme-Mi-Bit to ascertain information to assist in serving the defendants, however, his efforts proved futile. At para. 2 of his affidavit Mr Quest also stated:

“That I visited the bus park and the post office as aforesaid because the communities of Toll Gate and Gimme-Mi-Bit in which the defendants reside cover a wide geographical area very general in terms and without any specific lot or street number which impeded my ascertaining the precise whereabouts of the defendants in the respective communities … in the circumstances I verily do believe that personal service of the Claim Form and Particulars of Claim on the defendants isn't practicable …”

5 The appellant relied on a number of grounds in the application including that:

The appellant applied for and, on 16 December 2015, received an extension of time for the service of the originating documents.

• “i. The stated addresses were given by the defendants, as their true place of abode, to the police;

• ii. The bailiff of the Clarendon Resident Magistrate's Court has attempted to effect service on diverse dates and has been unsuccessful; and

• iii. The method of service is likely to enable the defendants to ascertain the contents of the claim form and particulars of claim.”

6 On 7 February 2017, counsel for the appellant applied for judgment in default of acknowledgement for service against both defendants. The application was supported by an affidavit of service sworn by the appellant's counsel and filed 9 June 2016. Counsel exhibited the certificates of posting of registered articles for the letters sent to the defendants in proof of service. Counsel did not mention in the affidavit that the packages had been returned uncollected.

7 Interlocutory judgment in default of acknowledgement of service was entered on 31 May 2017.

8 The matter proceeded to an undefended assessment of damages before the learned judge. A formal judgment was entered on 16 January 2016 and filed on 16 January 2018. Damages were awarded as follows:

• “1. General Damages of $1,900,000.00 is awarded to [the appellant] with interest at 3% per annum from the 20 ^th day of May, 2016 to the 16 ^th day of January, 2018;

• 2. Special Damages of $144,360.00 is awarded to [the appellant] with interest at 3% per annum from the 13 ^th April, 2013 to the 16 ^th day of January, 2018.

• 3. Costs to [the appellant] to be agreed or taxed.” (Emphasis as in the original)

9 On 4 October 2019, the respondent filed a notice of application for court orders seeking permission to intervene in the proceeding, for the default judgment and all subsequent proceedings to be set aside and for a stay of execution of the final judgment. The grounds on which the respondent relied were as follows:

• “1. That this application is made pursuant to Rule 9.6 and 13.2 of the Civil Procedure Rules;

• 2. [The respondent] seeks to be added subject to Rule 19.3(3) (b) of the Civil Procedure Rules and its right to subrogation under a contract of indemnity between [the respondent] and 1 ^st Defendant.

• 3. That the Defendants were not served with the Claim Form & Particulars of Claim as [the appellant's] Attorney, Oraine Nelson attempted to serve the Defendants with the said documents by registered mail but they were returned to the sender.

• 4. That subsequently, [the respondent] was served with Final Judgment in June 2018.

• 5. That the first time [the respondent] became aware of the Judgment against the Defendants was about in June 2018 when they were served with the said Judgment;

• 6. The said [respondent] instructed Dunbar & Co. Attorneys-at-Law to act for and on behalf of Granvin Graham;

• 7. That the said Dunbar & Co. attempted to contact the said Granvin Graham by way of telephone but this proved futile and letters sent to the address on record at his insurer, [the respondent] but this proved futile;

• 8. That subject to Rule 5.1 and 5.2 of the Civil Procedure Rules which speaks to the issue of the service of the Claim Form and Particulars of Claim, it was invalid as personal service was not effected;

• 9. That there is no order of the court for Alternate service as required by Rule 5.14(2) of the Civil Procedure Rules;

• 10. That [the respondent] is the party to which [the appellant] will look to pay damages awarded, if any;

• 11. It is in these circumstances [the respondent] now seek the court's permission to intervene and setting aside the Judgment.”

10 The application was supported by an affidavit of urgency and the affidavit of Ruthann Morrison-Anderson filed on 5 August 2021. Mrs Morrison-Anderson deposed that the respondent was served with the final judgment on or about 25 June 2018. However, a search of the court records revealed that the appellant did not attempt to serve the originating documents until 2016 when she obtained two extensions of time and an order to serve the documents by registered post. She further deposed that checks were made with the post master general and, a copy of the post master general's letter dated 22 June 2018 was exhibited.

11 The letter dated 22 June 2018 from the Post and Telecommunications Department revealed useful information that follows. On 29 April 2016, counsel for the appellant posted the documents to the 1 ^st defendant at the address “Toll Gate District, Toll Gate, Clarendon”, and to the 2 ^nd defendant at the address “Gimmi-Mi-Bit District, Gimme-Mi-Bit, Clarendon”. On 2 May 2016, the registered article addressed to the 1 ^st defendant arrived at the Toll Gate Post Office and the article addressed to the 2 ^nd defendant arrived at May Pen Post Office. Both letters were returned uncollected. Counsel for the appellant retrieved the packages on 12 July 2016 in relation to the 1 ^st defendant, and on 4 October 2016, in respect of the package sent to the 2 ^nd defendant.

12 On 21 December 2017, another registered article was sent to the 1 ^st defendant at Toll Gate District, Toll Gate, Clarendon. It arrived at the Toll Gate Post Office on 22 December 2017, and a notice was sent to the addressee on the same date. The 1 ^st defendant collected the registered article on 2 January 2018. The registered article sent to the 2 ^nd defendant was not collected and was again returned to counsel for the appellant.

13 Mrs Morrison-Anderson stated that efforts were made to contact the defendants to obtain their instructions but those efforts proved futile. She also asserted that the respondent should be allowed to intervene and set aside the default judgment and all...