Louise Thomas v Janet Thomas et al

SAINT VINCENT AND THE GRENADINES THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CIVIL) CLAIM NO SVGHCV 2005/0253 BETWEEN: LOUISE THOMAS Applicant/2nd Defendant and JANET THOMAS 1st Respondent/Claimant and NATIONAL PROPERTIES LIMITED 2nd Respondent/1st Defendant Appearances On the written representations submitted by Mr Sten Sargeant for the Applicant/2nd Defendant Mr Carlyle Dougan QC for the 1st Respondent/Claimant Mr Duane Daniel for the 2nd Respondent/1st Defendant …………………………………………………………………………….. 2014: November 2014; 2015: June 5 ……………………………………………………….. DECISION Introduction

[1]LANNS, J.[Ag]: In this three-fold application, the applicant/second defendant Louise Thomas is valiantly seeking to extricate herself from a judgment entered against her and the first named defendant, National Properties Limited (NPL) over six years ago, which judgment has already been implemented.

[2]The applicant/second defendant and the 1st respondent/claimant are sisters of the whole blood.

[3]NPL is a limited liability company registered in Saint Vincent and the Grenadines. It is wholly owned by the Government of Saint Vincent and the Grenadines, and manages real property on its behalf.

[4]The applicant/second defendant first seeks an order striking out the claimant’s amended statement of claim for failure to certify that she believes that the contents of the statement of claim are true.

[5]In the event that that order is denied, the applicant/second defendant seeks secondly, an order setting aside the order of Master Cottle dated 7th February 2007, wherein the learned master entered judgment in default of defence against the applicant/second defendant and NPL for failure to file a defence. Integral to that application, the applicant/second defendant seeks to set aside the order of Bruce-Lyle J dated the 11th March 2009, wherein the learned judge fixed the terms of the default judgment entered by Master Cottle.

[6]The third limb of the application is to the effect that, if the court grants the orders sought for on the first and second limbs, then the court must of necessity order the cancellation of deed numbered 1815 of 2009 vested in the sole name of the respondent/claimant.

Procedural History

[7]On the 25th May 2005, the claimant started an action against NPL by way of a regular claim form (Form1) seeking various reliefs summarised as follows: (1) A declaration that the claimant is, and has been in, possession of a lot of land situate at Montabella, Ottley Hall with concrete dwelling house thereon for a period in excess of 12 years and by virtue of the Limitation Act Cap 90, is entitled to legal title to the said land; (2) Specific performance of an agreement made between the claimant and NPL, for the sale of the subject land to the claimant. (3) An injunction to restrain NPL from conveying the land to any other person or persons, company or organisation. (4) An order compelling NPL to convey the said land to the claimant within 14 days; (5) On refusal to convey the land, an order that the Registrar of the High Court convey the land to the claimant. (6) Further or other reliefs; and (7) Costs.

[8]According to the affidavit of service of Rodwell Alexander, a bailiff of the High Court, he “did on the 27th May 2005 at 11:15 am personally served on the Defendant at Kingstown, true copies of Claim Form/Statement of Claim, Acknowledgement of Service and Certificate of Truth in the above mentioned Suit…” That service, Mr Alexander deposed, was logged in his notebook and signed by one Pamela Cozier. a clerk at NPL

[9]NPL did not file any acknowledgment of service or defence.

[10]By order dated the 24th March 2006, a judge of the High Court permitted the claimant to add Louise Thomas as a defendant in the matter. The learned judge also ordered that Louise Thomas be served with all documents pertaining to the claim out of the jurisdiction. The order did not specify the method of service to be used, nor did it stipulate the period within which Louise Thomas must file an acknowledgement of service or a defence. Nothing turns on that omission.

[11]On the 29th May 2006, the claimant filed an amended claim form and statement of claim against NPL, and the second defendant. The claim form was amended in its heading to include ‘Louise Thomas’ as the second defendant, and the prayer for relief was amended by inserting paragraph 5 (a) which prayed for cancellation of deed of conveyance numbered 717 of 2005 in favour of Louise Thomas, the second defendant. As to the statement of claim which accompanied the claim form, two paragraphs were added thereto, being paragraphs 13 and 14. In paragraph 13, the claimant asserted that NPL, on the 8th March 2005, conveyed to the second defendant the disputed lot of land with building thereon. And by paragraph 14, the claimant pleaded in essence that she has been prejudiced by the action taken by NPL to convey the land to the second defendant. She contended that the NPL and the second defendant knew that she had built the house on the land and thus, they are estopped from denying that the land belonged to the claimant.

[12]On the 7th July 2006, Marilyn Joseph, a clerk in the law firm of Dougan, York & Co, swore to an affidavit of service, wherein she stated essentially, that she did, on the 6th June 2006 serve on the second defendant, the amended claim form, statement of claim, acknowledgement of service, certificate of truth, affidavit by the claimant, and certificate of exhibits, by way of registered mail at a specified address in Canada. And on the 7th February, 2007, the claimant filed the affidavit of service of Marvin Mulcaire, High Court bailiff to prove that he did on the 6th June 2006 personally serve NPL, at Diamond with the same documents as those served on the second defendant via registered post. The affidavit of service does not mention the name of the person on whom service was effected.

[13]On the 14th July 2006, the second defendant, through her legal practitioners Hughes & Cummings, filed an acknowledgement of service indicating, among other things that a) she received the amended claim form and statement of claim on the 16th June 2006; b) that she does not admit any part of the claim; and c) that she intends to defend the claim. To date, no defence has been filed.

[14]No defence having been filed or served, on the 25th January 2007, the claimant filed an application pursuant to CPR 12.10 (5) for judgment to be entered against the defendants for their failure to file their respective defenses.

[15]That application came before Master Cottle on the 7th February 2007, and the learned master ordered that “Judgment is entered for the Claimant in default of Defence and that the Claimant apply to have the terms of Judgment fixed.”

[16]Subsequently, the claimant on the 28th January 2009, filed an application without notice to have the judgment fixed pursuant to the order of Master Cottle.

[17]That application came before Bruce-Lyle J. in chambers on the 11th March 2009. After hearing Mr Carlyle Dougan QC, and after reading the affidavit in support of the application, the learned judge made an order in the following terms: "IT IS ORDERED that the terms of the judgment be fixed as follows:- That the Claimant be granted a Declaration that [she] is and has been in possession of 1 Lot piece or parcel of land situate at Montabella, Ottley Hall with concrete dwelling house situate thereon (built and occupied by the Claimant) for a period in excess of 12 years and by virtue of the Limitation Act Cap 90 is entitled to legal title to the said land. Specific performance of an Agreement to sell the said 1 Lot piece or parcel of land situate at Montabella, Ottley Hall with concrete dwelling house situate thereon made between the Claimant and the Development Corporation the predecessor of the Defendant to convey the said land to the Claimant within 14 days and on refusal, an order that the Registrar of the High Court convey same to the Claimant. That the Claimant be granted an injunction restraining the Defendant its servants and/or agents from conveying the said lands to any other person/persons, company or organisation whatsoever or otherwise dealing with the said 1 Lot piece or parcel of land situate at Montabella, Ottley Hall with concrete dwelling house situate thereon contrary to the rights and interests of the Claimant. 4. It is further ordered that Deed of Conveyance Number 717/2005 be cancelled. 5. That the Registrar be ordered to convey the said land to the Claimant within 14 days thereof. 6. Costs to the Claimant to be taxed."

[18]There is no indication from the court’s file that a copy of the order was served on the Defendants.

[19]However, it is apparent that the registrar, pursuant to the order of the learned judge, cancelled Deed of Conveyance 717 of 2005 which was vested in the name of the second defendant, and executed a deed of conveyance in favour of the claimant, bearing registration number 1815 of 2009.

[20]Comes now the second named defendant, through her new attorney-at-law, seven years after the judgment of Cottle M., and five years after Bruce-Lyle J.’s Order fixing the terms of that judgment, for an order setting aside the default judgment entered by Cottle, M. dated 7th February 2007 and order of Bruce-Lyle J. dated 11th March 2009, fixing the terms of the judgment.

[21]Let me say at the outset, that the court is wholly unimpressed with the timing of the application coming as it does five years after the terms of the judgment have been fixed and implemented. To my mind, the orders sought for should never be granted in the absence of something approaching fraud on the part of the claimant. There is no allegation of fraud in the application.

[22]To grant the orders sought for, the court would be sanctioning a form of abuse of its own process, thereby opening up the floodgates for similar applications, involving inordinate delays, which would not in my view be furthering the overriding objective of the rules to deal with cases expeditiously. Nor will it accord with the principle of finality in litigation.

[23]Let me say too that the court has doubts as to whether it has jurisdiction to entertain or proceed with the application. This will depend on whether the decision of the judge was a final decision. The court is of the view that the judgment of Bruce-Lyle J. was a final adjudication of the rights and interest of the claimant in the disputed land, and is best challenged on appeal. This, to my mind is the effect of those parts of the judgment which effectively a) granted specific performance of an agreement made between NPL and the claimant to sell the subject land to the claimant, b) granted a permanent injunction restraining NPL, “its servants and /or agents from conveying the said land to any other person, company or organisation whatsoever, or otherwise dealing with the said lot, piece or parcel of land … contrary to the rights and interest of the claimant.”; and c) ordering the Registrar to convey the said land to the claimant within 14 days of the date of the order. If I am right in saying that the order was a final order which determined the rights of the claimant to the subject land, then it is arguable that the second defendant is estopped from pursing an application in respect of the same land, other than by way of an appeal.

[24]It is now seven years since the default judgment of Cottle M. was pronounced. Its terms have already been defined and implemented. Clearly, the time to appeal has long expired. And no doubt new counsel for the applicant/second defendant is aware of the hurdles which he would have to surmount before he could succeed in filing an appeal. The application before the court may very well be a tactical device to get to the Court of Appeal. Whatever the case, I view the application as one which is asking me to reconsider and reverse the master’s and judge’s decisions. I do not view it as an application which requires me to consider it under the court’s coordinate jurisdiction.

[25]It is well settled, that it is open to a judge who has given a judgment to reconsider his conclusion and, in effect, to reverse his own decision, provided that the order recording his earlier decision has not been drawn up. In Preston Banking Co. William Allsup & Sons [1895] 1 Ch 141, 143-145, AL. Smith L.J. said: “So long as the order has not been perfected, the judge has the power of reviewing the matter, but once the order has been completed the jurisdiction of the judge over it has come to an end.”

[26]In the premises, the application is denied for want of jurisdiction.

[27]However, just in case I am found to be wrong in saying that I have no jurisdiction to entertain the application, I go on to consider the second defendant’s application to strike out the amended statement of claim.

The application

[28]The application was filed on the 5th April 2014. As previously stated, the applicant/second defendant seeks the following orders: a) That the Amended Statement of Claim be struck out pursuant to CPR 3.13 (1) for failure to comply with rule 20.1(4) (as amended); b) That the order of the court dated 7th February 2007 entered on 8th January 2009, entering judgment for the claimant be set aside; c) That the order of the Court dated the 11th March 2009 granting the claimant judgment in terms of the statement of claim be set aside; d) That, as a consequence of (a) and (b) above, Deed number 1815 of 2009 in favour of the 1st respondent/claimant, be cancelled.

[29]The grounds of the application are summarised as follows: (A) The claimant failed to comply with CPR 3.12 (5) to verify the amended claim form and amended statement of claim with a certificate of truth. This failure is fatal and cannot be cured by CPR 26.9. (B) (i) The claim form was for amongst other reliefs, a declaration and for possession of land, and ought to have been commenced by fixed date claim form in accordance with CPR 8.1 (5); (ii) By reason of (i), and contrary to CPR 12. 2 (b), the order of court dated 7th February 2007 allowing judgment in default of defence is an irregular order and must be set aside; (iii) The order of court dated 11th March 2009 made pursuant to a without notice application under CPR 12.10 (4) and (5) is also irregular and must be set aside for irregularity in accordance with 13.3 (2) (as amended) and/or in breach of natural justice. (C) Alternatively, the orders must be set aside pursuant to CPR 13.3 (1) in that (i) the applicant/second defendant has applied to the court as soon as reasonably practicable after finding out that judgment had been entered: (ii) the second defendant has a good reason for the failure to file a defence; (iii) the second defendant has a real prospect of successfully defending the claim; (D) With respect to the assessment of costs under CPR 65.5, the value of the claim is $250,000.00 being the amount claimed by the claimant in her statement of claim as an alternative to the other reliefs prayed for.

[30]Sylvonne R. John, a barrister at law in the law chambers of Williams & Williams, on the 15th April 2014, swore to an affidavit in support of the application with seven documents exhibited thereto including a draft of the proposed defence and counterclaim.

[31]The claimant has not filed any answering or opposing affidavit. Instead, learned Queen’s Counsel, Mr Dougan on the 27th May 2014, on behalf of the claimant, filed a document entitled “SUBMISSIONS AND AUTHORITIES IN RESPONSE TO THE SECOND DEFENDANT’S APPLICATION FILED ON THE 15TH APRIL 2014”. The authorities listed were: '1. CPR 2000; and 2. Caribbean Civil Court Practice - ECCPR'.

[32]Learned Queen’s Counsel certainly cannot have intended to be referring to the whole of the CPR nor to the entire two editions of The Caribbean Civil Court Practice.

[33]At hearings before Master Actie on the 7th May 2014, and 3rd June 2014, the learned master ordered the applicant/second defendant to serve NPL with the application, supporting affidavit and exhibits. The 1st respondent/claimant was to file and serve submissions with authorities in response to the application of the applicant/second defendant. The applicant/second defendant was to file and serve submissions in reply if necessary, and NPL was ordered to file and serve submissions in response to the applicant/second defendant’s application. The applicant/second defendant was in turn ordered to file submissions in reply to the submissions of NPL.

[34]On the 18th June 2014, without leave, or court order, Ingrid Quammie, legal secretary in the law chambers of Duane Daniel swore to, and filed an affidavit which she said she was giving in support of the application by the applicant/second defendant. In it, Ms Quammie seeks to impeach the affidavits of service of bailiffs Alexander and Mulcaire. The thrust of Ms Quammie’s affidavit is that, based on their affidavits of service, the bailiffs effected service on NPL at an incorrect address and thus, service of the claim form and statement of claim on NPL was either improper, defective, or not effected at all, and thus, the judgment was irregularly obtained. Interestingly, at paragraph 7 of her affidavit, Ms Quammie stated: “This affidavit joins with the Application of the 2nd Defendant/Applicant filed on the 15th day of April 2014, and I humbly request that the order prayed be granted in favour of the 1st Defendant.” (Underline added).

[35]It will be readily apparent that the affidavit does not say that NPL has not been served with, the documents. The court observes too that NPL has not applied to set aside the judgments. In fact, it has never acknowledged service or filed a defence, although on the 3rd June 2014, Mr Duane Daniel filed a notice of acting on behalf of NPL., and appeared for NPL on the said 3rd June 2014, when the application to strike came back before Master Actie. In the circumstances, I attach little or no weight to the affidavit of Ingrid Quammie as it was filed without leave of the court. I regard it as an abuse of the court’s process.

[36]On the 18th June 2006, NPL filed its submissions in response to the applicant’s/second defendant’s application, and on 26th June 2014, the applicant/second defendant filed its submissions and list of authorities, supplemented by additional submissions filed on 4th September 2014. Subsequently, the claimant/1st respondent filed her response to the submissions of the applicant/second defendant.

[37]The application came on for hearing before a master on the 23rd July 2014, but the master opined that she had no jurisdiction to entertain an application to set aside the order of a judge, whereupon the master remitted the application to the court office to be set down for hearing by a judge.

[38]The application eventually came before me for hearing on the 20th November 2014. Mr Sten Sargeant appeared for the applicant/second defendant, Mr Cecil Williams appeared holding for Mr Carlyle Dougan QC for the respondent/respondent, and Mr Duane Daniel appeared for NPL. It must be remembered that the judgment in question is against both NPL and the applicant/second defendant, but the application is made by the second defendant only.

[39]Ms Sylvonne John who was ordered to attend for cross-examination was visibly absent. However, counsel Mr Sargeant informed the court that Mr Dougan QC is no longer interested in cross- examining Ms John. That being the case, counsel agreed that the court could determine the application on the written representations submitted by the parties. The judgment was reserved.

Issue

[40]The issues for determination under the application are: Whether the court has jurisdiction to entertain the application to strike out the claimant’s amended statement of claim on the basis that the amended statement of claim was not verified by a certificate of truth. If the court has no jurisdiction to entertain the application to strike out the amended statement of claim, whether the order of Cottle, M. dated 7th February 2007, and that of Bruce-Lyle J. dated 11th March 2009 should be set aside for irregularity under CPR 13.2. by reason that that the proceedings ought to have commenced by a fixed date claim form. If the judgment of Cottle M, and the order of Bruce-Lyle J defining the terms of the judgment are not set aside as being irregularly obtained, whether they should be set aside under CPR 13.3. Whether the court has jurisdiction to entertain the application to strike out the claimant’s amended statement of claim for failure to include a statement of truth

[41]The court has observed that indeed, the record does not reflect a certificate of truth in respect of the amended statement of claim. However, the original statement of claim was verified by a certificate of truth. It is on a page by itself on the court’s file The court has also observed that the affidavits of the bailiffs/process servers state that they served the defendants with a certificate of truth in relation to the amended statement of claim. Ordinarily, proof of service is contained in an affidavit of service pursuant to CPR 5. 5, and, if there are any doubts as to service, these are usually cleared by oral evidence at the hearing. The defendants did not put the wheel in motion to trigger these concerns, for they did not file any defence which would have triggered a case management conference at which time the court could have dealt with any concerns raised, or application made. The rules contemplate that applications to strike out be dealt with at a case management conference, while proceedings are on foot; that is, before judgment is entered, not after judgment has been entered and implemented or enforced for so many years.

[42]That said, the court is of the opinion that it has no jurisdiction to entertain the application to strike out the amended claim in light of the subsisting judgments granted by Cottle M. and Bruce-Lyle J. years ago in February 2007 and in March 2009 respectively. The effect of the judgments is that they continue to subsist and stand until they are reversed by the Court of Appeal, or set aside by a judge of the High Court (See the case of Marie Clarke-John v Evariste Ambrose [SLUHCV2008/438] in which Georges J [Ag] cited with approval the case of Isaacs v Robertson (1984) 3 All ER 140.

[43]When a judgment is obtained, the cause of action is merged in the judgment and the claim ceases to exist, and its place is taken by the rights created by the judgment. (Sandra George v Clement Samuel et al, ANUHCV2004/293.

[44]It follows that the judgment against the applicant/second defendant and NPL is a complete bar to an application to strike out the amended statement of claim, for there is no longer any statement of claim that is capable of being struck out. In light of the subsisting judgments, the issue of striking out the amended statement of claim does not arise, as there is no claim in existence which can be ordered to be struck out.

[45]In the result, whilst I agree that it appears from the court’s file that the amended statement of claim was not verified by a certificate of truth, for the reasons given, the application by the applicant/second defendant for an order that “The Amended Statement of Claim be struck out pursuant to rule 3.13 (1) for failure to comply with rule 20.1 (4) (as amended), fails. Whether the judgment order/judgment of Cottle M. and Bruce-Lyle J should be set aside for irregularity under CPR 13.2

[46]There are two bases upon which a default judgment can be set aside. The first is where judgment is irregularly obtained, for example, where the defendant can establish that the correct procedures have not been followed in obtaining judgment, in which case the defendant can have judgment set aside as of right without the requirement of establishing a defence to the claimant’s claim. Here the court may set aside judgment on or without an application. (Royal Trust Corporation of Canada v Dunn 60 OR 3rd 468) ; ( CPR 13.2 (2).

[47]On the other hand, if the judgment is regularly obtained, and the defendant is asking the court to exercise its discretion under CPR 13.3 to set aside the default judgment and allow the defendant to defend the claimant’s claim, certain conditions must be satisfied.

[48]The application to set aside the judgment of Cottle M. and the order of Bruce-Lyle J. was made pursuant to CPR 13.2; and in the alternative, under CPR 13.3. If the judgment is found to have been irregularly obtained, in the context of CR 13.2, there will be no need to proceed under 13.3. Accordingly, I first consider whether the judgment was irregularly obtained.

[49]In the context of CPR 13.2, the complaint of the applicant/second defendant is that the judgment must be set aside because the claim ought to have been commenced by way of a fixed date claim form, and that by virtue of CPR 12.2 (b) a claimant may not obtain judgment if the claim is a fixed date claim. Counsel developed that point in his written submissions, by stating that the situations listed under CPR 13.2 under which the court may set aside default judgment are not exhaustive and that certain cases may arise which may require the court to take account of the overriding objective to deal with cases justly and exercise its discretion widely.

[50]It is true that a judge may not enter default judgment on a fixed date claim. However, there was no fixed date claim before the master nor the judge when judgment was pronounced, nor when the terms of the judgment were being fixed. For this reason alone, that ground fails.

[51]CPR 8.1 (5) provides that a Form 2 (fixed date claim form) must be used in four circumstances, one of which is “in proceedings for possession of land”. Counsel for the applicant submits, that the claimant has claimed a declaration that she has been in possession of land, and has claimed entitlement to adverse possession, and thus, her claim ought to have been brought by way of fixed date claim form. I do not agree that the claim is strictly a claim for possession of land. As I see it, the claims in the amended statement of claim are not limited to a declaration of possession; or adverse possession. The claims included a claim for specific performance of an agreement for the sale of land; a claim for injunctive relief, a claim for an order directing the registrar to convey the disputed land to her; along with a claim for cancellation of deed 717 of 2005. It is a mixed claim which to my mind can go either way.

[52]However, assuming that the claim ought to have begun by fixed date claim form (Form 2) as opposed to a regular claim form (Form 1), I find it difficult to see how, after such inordinate delay in making the application, and, more importantly, coupled with the failure to file a defence to the claim, the failure to commence the claim by way of a fixed date claim should be a ground to set aside the judgments.

[53]I am aware of situations where, at a case management conference, a defendant applies to strike out the claim on the ground that the matter should have begun by way of fixed date claim form, or the court, having reviewed the file, observes that, based on the nature of the proceedings, the matter ought to have commenced with a fixed date claim form. However, it is not the practice for the court to strike out a matter begun on the wrong form. Normally, the court would exercise its case management powers and put things right so that the case can proceed, thus furthering the overriding objective of ensuring that the case is dealt with expeditiously.

[54]The case of Hannigan v Hannigan (2000) ILR 3 is judicial authority for the practice that the court will not strike out a statement of case, as long as the failure is capable of being rectified or cured. In Hannigan v Hannigan a party started proceedings on the wrong form and committed many other breaches of the rules in presenting his case. The Court of Appeal held that the defendants knew precisely what was being claimed, and the administration of justice would have been better served if the defendant had pointed out the procedural defects to the claimant in accordance with the duty of the parties to help the court to further the overriding objective. In the case at bar, the fulsome draft defence lodged by the applicant/second defendant shows that she knew precisely what was being claimed, and failed to defend, even though she said intended to do so, hence, the application for the entry of judgment.

[55]Obviously, I am not inclined to the view that because the claim was not brought by way of fixed date claim, an irregularity has occurred which merits setting aside the judgments. The second defendant was represented by experienced learned QC. Had a defence been filed, the matter would have proceeded to first case management conference, at which time it would have been open to learned Queen’s Counsel to put forward his concerns about how the proceedings were commenced. And the court would have made an appropriate order to the effect that the matter is to continue as a fixed date claim form. In my opinion, it is now too late in the day to do that. In the premises, I am of the view that there is no basis for holding the judgment in default was irregularly obtained by reason that the claim ought to have begun by a fixed date clam form. This ground fails.

[56]The alternative complaint of the applicant/second defendant is that the judgment was irregularly obtained because there was a breach of the rules of natural justice. Counsel did not in the submissions, elaborate on this point; so I need not address it. It suffices to say that although the applicant stated she was also making her application under CPR 11, she did not specify any particular rule so as to assist the court. Assuming that she was referring to rule 11.16, this rule must be read in light of, or together with rule 12.10 (5) which says that “An application for the court to determine the terms of the judgment … need not be on notice but must be supported by evidence on affidavit and rule 11.15 does not apply.”

[57]It bears repeating, however, that the applicant has made no application under CPR 11.16, and nothing pertaining to the rules of natural justice was canvassed before me, nor was any argument advanced in the written submissions on this point. Therefore, I make no finding as to whether there was a breach of natural justice so as to render the judgments irregularly obtained.

[58]CPR 13.2 provides: “13.2 (1) The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because in the case of (a) …” (b) judgment for failure to defend, any of the conditions in rule 12.5 was not satisfied. (2) The court may set aside judgment under this rule with or without an application.”

[59]CPR 12.5 provides: “12.5 … The court office at the request of the claimant must enter judgment for failure to defend if — (a) (i) the claimant proves service of the claim form and statement of claim; or (ii) an acknowledgement of service has been filed by the defendant against whom judgment is sought; (b) the period for filing a defence and any extension agreed by the parties or ordered by the court has expired; (c) the defendant has not — (i) filed a defence to the claim or any part of it … (ii) (if the only claim is for a specified sum of money) filed or served on the claimant an admission of liability to pay all of the money claimed, together with a request for time to pay it; or (iii) satisfied the claim on which the claimant seeks judgment; and (d) …”

[60]CPR 12.5 must be read in light of 12.10 (1) which defines the nature of a default judgment. In the case of a claim for ‘some other remedy’ CPR 12.10 (4) and CPR 12.10 (5) are triggered. These sub-rules provide: “(4) Default judgment where the claim is for some other remedy shall be in such term as the court considers the claimant to be entitled to on the statement of claim. (5) An application for the court to determine the terms of the judgment under paragraph (4) need not be on notice but must be supported by evidence on affidavit and rule 11.15 does not apply”

[61]Given the various reliefs prayed for, this was a claim for ‘some other remedy’ brought by a regular claim, and the claimant would have been well within her right to apply to the court under CPR 12. 10 (5) to have judgment entered up in her favour against the defendants, so long as the conditions under CPR 12.5 were satisfied, and so long as the application was accompanied by affidavit evidence which was satisfactory to the court. When the matter came before the master, no defence had been filed; there were affidavits of service in proof that the defendants had been served with the claim form and statement of claim; the first defendant had not filed an acknowledgement of service or defence; the second defendant had not filed a defence; the time for filing an acknowledgment of service or a defence had expired; there was an application and supporting affidavit pursuant to CPR 12.10 (5). There being no apparent irregularity identified, Cottle M. must be taken to have been satisfied that the application was in order, and that the claimant was entitled to have the default judgment entered. Similarly, Bruce-Lyle J. must be taken to have been satisfied, based on the material before him, that the claimant was entitled to have the terms of the judgment defined. I am of the opinion, based on the material before me that neither the judge nor the master was wrong.

[62]As stated before, the applicant/second defendant has relied alternatively on CPR 13.3. Therefore, I look to see if the conjunctive requirements of that rule have been met.

As soon as reasonably practicable

[63]Ms Sylvonne John, in her affidavit of information and belief, and Mr Sargeant in his written submissions seem to be saying that the applicant/second defendant has applied to the court as soon as reasonably practicable after finding out that judgment had been entered. As stated before, the judgment was entered firstly, on the 7th February 2007, and its terms were decided on 11th March 2009. There is no evidence on file that the judgments were served on the defendants. And there is no plausible evidence as to when the second defendant became aware of the judgment. The affidavit of Ms John seems to be suggesting that the second defendant became aware of the judgment on the 5th April 2014, when her brother noticed a mobile phone number on the subject land, and subsequently had the court file copied. Ms John has further stated that it was after the file was copied that the second defendant was advised by her new counsel that judgment had been entered.

[64]Significantly, Ms John’s affidavit is silent as to the date when she had the file copied. However, based on the date when the brother discovered the mobile number on the land, (5th April 2014), and the date she swore her affidavit (15th April 2014), the logical inference is that the file was copied on a date between the 5th and 15th April 2014.

[65]Mr Dougan QC has responded to the allegation of non-service of the judgments by referring to CPR 6.1 which is to the effect that the court has a duty at times to serve a judgment on a defendant. Regard must also be had to CPR 42.5 (1) which says in part that subject to certain exceptions, “Every … order must be drawn by the court, unless …”. While it is true to say that the court is fixed with the task of serving a judgment, this is no excuse for Mr Dougan QC not to have been proactive to ensure that the judgments were served on the defendants. This is the usual practice, given the limited resources at the court office to police judgments entered up against litigants. It is the duty of the parties to help the court and the court office to further the overriding objective.

[66]That being said, on the material before the court, the court finds that the judgment was never served personally on the second defendant or her legal practitioner, and that she became aware of it on a date between the 5th April 2014 and the 15th April 2014. The application was made on the 15th April 2014. In the circumstances, I am content to find that the second defendant has met the threshold requirement of CPR13.3 (1) (a).

[67]Before I proceed to address the next requirement, I observed that counsel for the applicant/second defendant has without leave, filed supplemental submissions (out of time) wherein he seeks to rely on the decision of Mitchell J.A. in the case of Rabess v National Bank of Dominica, DOMHCVAP2011/030, wherein Mitchell J.A. stated among other things that if a judgment or order has not been served personally, all proceedings consequential to the entering of judgment would be defective, null and void and of no effect. Counsel submitted, based on the Rabess case that as a result of the non-service of the judgment, the order of Bruce-Lyle J dated 11th March 2009 and all actions consequent upon it are null and void and of no effect and must be reversed.

[68]The decision in the Rabess case must be taken to be correct on its peculiar facts, and the court respectfully accepts that decision. However, I am of the opinion that the facts in this case make it exceptional or distinguishable, in various respects. For one thing, the judgment in the Rabess case was a money judgment, which was mathematically incorrect. Unlike here, the Rabesses were not interested in defending the case. They were concerned that not only were they not served with the judgment, but the figure for which judgment was entered was excessive, and the bank conceded that much. Additionally, unlike here, enforcement proceedings were still in progress in the Rabess case. In the instant case, I am not aware that any enforcement proceedings are ongoing. As I have said before, the judgment has been implemented since 2009 with deed of conveyance being executed and vested in the claimant In these circumstances, I am not of the view that the Rabess case is of much assistance to the applicant/second defendant. Even if it is of assistance or is applicable, given the peculiar facts of this case, the timing of the application, I am of the opinion that it is for the Court of Appeal to declare that all proceedings consequential to the entering of the judgments herein are “defective, null, void and of no effect”. The Court of Appeal is well placed to determine whether in every case, where a judgment was not served, all proceedings consequential to the entering of judgment would automatically be deemed defective, null void and of no effect.

Good explanation for failure to file defence

[69]The explanation given by the applicant/second defendant as put forward in the affidavit of Sylvonne John, for her failure to file a defence is to the effect that she was in the process of regularising her Canadian residency/citizenship status in Canada, and could not return to Saint Vincent to deal with the matter. She reposed confidence in her sister who she thought was representing her interest in the matter, only to find out otherwise. She also thought that the matter had been discontinued as she heard nothing further about it. She has not said she made any enquiries.

[70]The court is not satisfied that the applicant/second defendant has given a good explanation for her failure to file a defence to the claim. The record shows that at all times material, she had experienced legal representation by the law firm of Hughes & Cummings (from 30th June 2006 till the 15th April 2014 when a change of solicitor was filed), who was aware of the consequences of not filing a defence. Between the time of filing of the acknowledgement of service and the filing of the application for judgment, over six months had elapsed. So the applicant/second defendant must be taken to have had ample time to take appropriate steps, which the rules of court allow in circumstances where an extension of time is required to file a defence. The lawyers for the applicant/second defendant apparently took no account of the timelines within which to file a defence; nor did they invoke rule 10.9 and apply for an extension of time; or seek a consensual extension of time. This is conduct amounting to a wholesale disregard of the rules of court, coupled with an awareness of the consequences.

[71]Interestingly, there is nothing forthcoming from Hughes & Cummings. This is most telling. In the absence of evidence to the contrary, I must proceed on the footing that the lawyers for the second defendant knew that there was a time limit for filing the defence and the consequences of not doing so. However, our courts have said repeatedly that the lack of diligence of an attorney is not a good defence for delay. Barring the applicant’s/second defendant’s own failures, she may very well have redress against her former attorneys for negligence if she wishes to pursue such. But then, negligence is a claim to which the six year limitation applies.

[72]However, I do not see in the supporting affidavit much interaction between the applicant/second defendant and her former lawyers in terms of the preparation of a defence. It does not appear that the applicant/second defendant remained in contact with her lawyers to find out how the matter was progressing. As Barrow, J. noted in Kenton Collinson St Bernard v AG of Grenada, (Civil Claim No 0084 of 1999, delivered 24th March 2003), the litigation belongs to the litigant, not the lawyer. The litigant is obliged to keep in touch with her lawyer to find out what’s going on with his or her case. I am not satisfied. In my judgment, the reasons given do not amount to a good explanation for the failure to file a defence. The second defendant has not, in my opinion cleared the threshold requirement of rule 13.3 (1) (b).

Defence with a realistic prospect of success1

[73]Mr Dougan QC does not accept that the applicant/second defendant has shown in the supporting affidavit or draft defence that she has any real prospect of successfully defending the claim. Mr. Sargeant for the applicant/second defendant does not agree. In the supporting affidavit, Ms John stated that the applicant/second defendant has a good defence to the claim. Yet her lawyers did not act with diligence and promptitude to file it or to do what was necessary to obtain an extension of time to do so.

[74]In paragraph 10 of her affidavit, Ms John states that the claimant’s claim of limitation is bound to fail because, among other things, the property was vested in the Crown and no one can claim adverse possession against the Crown. The affidavit conveys that the draft defence exhibits evidence that it was the father of both the claimant and the second defendant who was the licensee of the Crown and not the claimant. (See paragraph 5 of the proposed defence). There is some force in this pleading, having regard to the law on the point.

[75]The affidavit by Ms John further conveys, in paragraph 11, that there is evidence in the form of a letter dated 11th April 2000 which shows that NPL contracted with Cyril Thomas, deceased (who was the father of both the claimant and the applicant/second defendant) for the benefit of the applicant/second defendant. In other words, based on a contract between Cyril Thomas and NPL, NPL was to convey the land to the applicant/second, which it did. (See paragraph 8 of the proposed defence).

[76]Ms John further deposes that the applicant/second defendant will contend that if NPL had an agreement with the claimant, NPL rescinded that agreement, by performing a contract with the second defendant. (See paragraph 14 of the proposed defence). This aspect of the pleadings seem to raise issues which may require investigation at trial. At this stage, it is not possible to say that the applicant/second defendant has no prospects of success on this aspect of the pleadings.

[77]However, paragraphs 5, 8, and 14 are not the main planks of the proposed defence. Indeed, the supporting affidavit in paragraph 13 thereof, conveys, and the proposed defence reflects, that the applicant/second defendant intends to base her defence primarily on the defence of mistake on the part of NPL in its transactions and dealings with the claimant. (See paragraph 13 of the proposed defence). This, to my mind is not a viable defence against the claimant. In the ordinary course of things, it might have been a good defence for NPL. But in my judgment, it is not a defence that weighs in favour of the applicant/second defendant against the claimant. It must not be forgotten that the judgment is against both NPL and the applicant/second defendant, neither of whom had seen it fit to defend the claim.

[78]As to the proposed counterclaim, examination reveals that this repeats the entire defence, and goes on to assert that the applicant/second defendant made a bona fide purchase of the parcel of land; alternatively that a resulting trust may have arisen in her favour. It is doubtful that the proposed counterclaim would pass muster, having regard to the twelve year limitation period which would probably apply to it.

[79]For what it is worth, I pause here to make the observation that although Ms John’s affidavit speaks to a ‘draft defence’, nowhere on the proposed defence is it shown that it was a draft defence. In fact, the document is headed “defence” and it was filed. The court’s issue stamp is affixed thereon, as well as the filing fee stamp. As a matter of procedure, the defence and counterclaim should have reflected that it is a draft defence and counterclaim, and it ought to have been stamped as ‘lodged’ and not ‘filed’, and it ought to have been headed ‘draft defence and counterclaim’ instead of “Defence”.

[80]However, being concerned more with substance as to form, and after having examined the proposed defence and counterclaim, the court is of the opinion that while paragraphs 1 to 9, and 14 of the proposed defence may have reasonable prospects of success, paragraph 13 of the proposed defence discloses no reasonable ground for defending the claim against the claimant. Further, in the opinion of the court, the counterclaim discloses no reasonable ground for bringing the counterclaim against the claimant, and in any event it is liable to be struck out as an abuse of process by reason that it has been brought outside the limitation period as prescribed.

[81]In the circumstances, and taking a holistic approach in respect of the proposed defence, it is not possible to say with definition that the applicant/second defendant has no real prospect of succeeding on certain aspects of the proposed defence; but as to the counterclaim, I am of the opinion that she does not have any real prospect of succeeding against the claimant, as the claims therein may be time barred.

[82]Having found that the applicant/second defendant has tendered no good explanation for her failure to file a defence, and there having been no discussions as to special circumstances canvassed or disclosed in the supporting affidavit of Ms John of which I should be concerned, the application to set aside the judgments under CPR13.3 must be refused, and consequently, the application brought by the applicant/second defendant must be dismissed in its entirety.

CONCLUSION

[83]I have come to the conclusion that, for all the reasons given above, the application should be dismissed. It is therefore ordered that 1. The application by the applicant/second defendant is dismissed in its entirety with costs to the 1st respondent/second defendant to be assessed if not agreed.

[84]I must say honestly, that the issues raised in the application, posed some difficulty, as counsel for the applicant seemed to have placed every possible option/alternative at his disposal which demanded careful consideration. I am grateful to all counsel involved for the assistance rendered especially counsel Mr Sargeant, whose industry in respect of his comprehensive/impressive submissions and authorities, I must commend.

Pearletta E. Lanns

High Court Judge [Ag]