Nathan Dundas v Valarie Pole

EASTERN CARIBBEAN SUPREME COURT ANTIGUA & BARBUDA IN THE HIGH COURT OF JUSTICE (ctvtL) Claim Number: ANUHCV 2013t052:,8 Between: NATHAN DUNDAS Claimant AND VALARIE HARRIS POLE Defendant Before: Mr, Raulston Glasgow Master Appearances: Dr. David Dorsett of counsel for the ClaimanURespondent Leon Symister of counsel for the Defendant/Applicant 2014: October 5; November 22; 2015: February Z RULING ON APPLICATION TO SET ASIDE DEFAULT JUDGMENT BACKGROUND l1l GLASGoW, M: The claimant (hereinafter the respondent) institukrd proceedings against the defendant (hereinafter the applicant) by way of a claim form and staternent of claim filed on August 13’2013. The respondentclaimed damages and otherrelief forharm suffered to his reputation and for distress and embarrassmentflowing from libel and slander allegedly issuing from the applicant. t3l t2l The claim form and statementof claim were served on the applicanton October 24,2013 and she acknowledged service thereof on Novembe r 5, 2013 However, the applicant failed to file ano serve a defence in the time limited bv the CPR, Prompted by the respondent’s; lack of response to the claim, the respondent applied on April 24, 2014 for the entry of a default judgment on such terms as the court deemed fit. When the application for the default judgment came up for hearing on May 19,2014, the applicant was given an opportunity to amend the application. The application was further heard on June 25, 2014 aI which time the applicant’s was; represented even though the appliciation had not been served on her. The court noted that there was no application for an extension rrf time to file the defence and indeed the time to file a defence had expired, Judqment in default of defence was therefore entered for the respondent. The extant application was fileC on July 04,2014 wherein the applicant seeks the setting aside of the default judgment in reliance on CPR 13.3(1) and 13.41 The application is supported by an affidavit sworn by the applicant and the affidavit of one Tassion Brown -Baker, legal clerk in the office of counsel for the applicant. The deponents assert that the application satisfies the provisions of CPR 13.3(1) in that the applicant applied as soon as reasonably practicable afterfinding out that judgment had been entered, ras a good explanation for failing to file a defence and has real prospect of successfully defending the claim ARGUMENTS In respect of promptness, the applicant and the respondent agrere that the applicant applied promptly after finding out the default judgment had been entered. As recited herein above, the default judgment was granted on June 25,2014 The applicant applied on July 4,2014, some (10) days thereafter for it to be set aside, I find the concession by the re:;pondent to be commendabkl since there is nothing on the far;ts of this case to suggest thatthe (10)delay was unreasonable. ‘The applicant failed to set out the grouncls on which she made her application except to state the provisions of the CPR on which she made her applicatiorr and a reliance on the administration of justice. Applicants are reminded that they must recite the grounds on which they seek to rely (CPR11.7(1)). t4l | -1 L”l Consensus ended at promptness, The parties disagree on whether the applicant met the requirements of the other limbs of CPR 1 3 3(1 ) The applicant submits that she has a good reason for failing to defend the claim, In her affidavit, which contents are ccnfirmed by the affidavit of Ms. Brown – Baker, the applicant slates that she was served with the claim form and statement of claim on October 24, 2013. These documents were delivered to herr lawyer who duly filed an acknowledgment of service on or about November 5,2013. The applicant asserts that on or about November 5, 2013 she supplied her attorney with answers to the allegations made in the respondent’s pleadings and counsel was instructed to file the necessary defence to the claim. The applicant says she sought and received assurances that a defence r,vould be filed. She specifically requested these assurances since she was aware that her counsel ‘is the Chairman of the lJnited Progressive Parly and that elections were pending…”2 Counsel assured her that the conduct of her matter would be referred to another attorney while he was out of office and that the applicant would be contacted if necessarv. The applicant further deposes that she enquired about the status c’f her matter. Counsel’s office advised her that she would be contacted “when the matter comes lp.” The applicant says that if she had been informed that a defence was notfiled, she would engerge another attorney to file ther same while her counsel was crut of office. On June 26, 2014 she u’as advised by counsel that a default judgment had been entered against her Her view is that rshe did everything within her oower to defend this claim. The respondent opposes the application. His view is that the applic;ant has not provided a good reason for failing to file a derfence In oral submissions which r,l’ere later supplemented with authorities, counsel for the respondent submitted that the lack of diligence by counsel in thr: conduct of litigation has not been accepted by our courts has ra good explanation for noncompliance with procedural requirements. Counsel relied on the cases of Shillingford v Casimir and Pinard3 and Rose v Ros,ea. In Shillingford the court ruled that counsel’s failure to file a notice of appeal in time because of the “fhe pressure of work” was; not a sufficiently “good and substantialreason” for the court to exercise its discretion to extend tl^re time for the appellant to fik; t6l 17l ‘ Paragraph 5 of the applicant’s affidavit filed on July 4,201,4. ‘ to w.r.R 269 o sLUHCVAp 2oo3/oorg ttq”lr a notice of appeal. In Rose, Sir Denis Byron also found thata lack of diligence by counsel whether due to the pressure of work or a failure of proper communication bertween counsel and client, dicl not suffice as good reason for a delay in meeting the timelines set outin the rules. t8l The applicant further argued tl-at her defence has a real prospectof success, A defence was file,l on july 4,2014 wherein the applicant denies publishing the words in question. In the alternative she contends that the words were spoken on an occasion of qualified privilege and further that the words were “fair comment mttde on a privileged occasion on a ntatter of public inferesf. ” The respondent submits that no such defence has been made out on the pleadinos. FINDINGS AND CONCLUSION The application has been made pursuantto CPRl3 3(1)which states the following – lf Rule 13.2 does not a,cply, the court may set aside a judgment entered under Part 12 only if the defendant – Applies to the courl as soon as reasonably practicable after finding out that judgment had been entered; (b)Gives a good explanation for the fatlure to file an acknowledgement of servicet or a defence as the same case may be, and (c) (c) Ha:; a realprospect of successfully defen,ling the claim. (2) ln any event the court may set aslde a judgment entered ur,der ParI 12 if the defendant safisfies the court that there are exceptional circumstances, (3) Where this Rule gives the courl power fo set aside a judgrnent, the courl may instead vary it. The applicant must satisfy the court thatall (3) elements of CPR 13,3(1) have been met before the relief sought is granteds. There is no disagreement that the applicant has met the first condition The application was filed a mere (10) days after she found out that tl”e default judgment had beerr 5 Kenrick Thomas v RBTT Bank Caribbean Limited, SVGHCVAP 2OO5|OOO3 @) (b) t10l t1 1l entered. In all the circumstances, lfind that this was an entirely reasonable time within which t’ make the necessary application to set it aside. The applicant’s reasons for failing to file a defence within the time limited by the rules have been set out above. Counsel for the applicant provided a number of authorities to buttress his argument that the court ought to exercise the discretion in CPR 13 3(1) where the defence was not filed dur: to lack of diligence on the part of counsel or his office. Counsel relied on the followino –

1.Elvis Wyrie v Alvin G. Edwards et al6. In that case, the court oi appeal allowed an appeal of the high court judge’s decisrion to refuse to set asrde a default jurlgment. I do not see how this; decision assists the applicant. The court of appeal did not ovr:rrule the judge’s ruling that “challenges experienced in obtaining documents necessary to avoid embarrassment in hi:; defence” did not amount to a good reason for failing to file a timerly defence. Rather, the court of appeal ruled that exceptional circumstances subsisted which urere of such a nature that the court should exercise the discretion enacted in CPR 13.3(2), The learned justices of appeal found that the granting of a default judgment to a non – applying party and on terms which were not available as a rnatter of law or on the pleadings vrere sufficient to amount to exceptional circumstances on the facts of the case under review. There was no findinq that the dilatory conduct of counsel r;ufficed for those purposes,

2.Graham Thomas v Wilsorr Christian trading as Wlicon Consl,ructionz, This authority also offers little assistance to ther applicant In Graham Thomas, Michel J (as he then was), found that the applicant provided sufficient information on which the < ;ourt could find that he had provided a good explanation for failing to file a defence within time, The applicant in that case also had a real prospect of t;uccessfully defending the claim. The stipulation as to timeliness in filing the application to set aside the default judgment had not rret. The court looked at the reasons pleaded for failing to comply with the rules and found that they were cogent enough to amount to exceptional circurnstances as contemplated by CPR 13.3(2). None of those reasons were that counsel or his office failed to adequately pursue the client’s interest. The “iuxtaposition of the defeno’ant’s impecuniosity, ignorance and indisposition, which together u ANUHcvAP 201.4/oool ‘ANUHCV 20t1,/062g t|2l conspired to strip him of the ftnancial capacity, the tegat famittarily and the mental acuity to do that which the rules required of him within a determined tirneframe” were found to ber sufficiently exceptional circumstances to warrant the setting aside of the default; The Belizean case of Serafin Castillo v Fruta Bomba Ltd and Antonio Luis Aguilars. Ther applicant does not receive inuch help either from this decision when the facts of that case arer reviewed. ln Castillo, an ar:knowledgment of service was servecl on the claimant without firsl: being filed. This was due lo inadvertence on the part of the administrative personnel in the office of the applicant’s counsel. The court found that the lapse was not fatal in that regaro. The facts on this application are different in that there was no dei’ence filed or even served on the respondent until after the defaultjudgment was entered; Rose v Rose. As stated above at paragraph 7, the court in Rose found that a lack of diligence by counsel whetherr due to the pressure of work or a failure of proper communication between counsel and client did not suffice as a good explanation for failing to comply with the procedural rules:

5.The Botswana case of Regardas v Martinsg The procedural rules in that country required that on an application to set aside a default judgment, the applicant must, inler alia, “give reasonable and acceptable explanations for the default,” The applicant in that case was able to demonstrate that he had given his attorneys full instructions to drlfend the claim but this was not done. The court found that “where the attorneys acflons went singularty the cause of the failure to file a plea, the court should allow the applicant to defend ;lhe claim.” The respondent’s position on the applicant’s explanation for failing to file and serve a defence timeously have been set out in this judgmentatparagraphT. While I agree with the respondent on the posture of the court in such cases as Rose and Shillingford, I believe that there are some distinguishing features highlighterd by the applicant herein that ought not to be dismissed without some contemplation. In Rose the applicant for the extension avarred that he had difficulty communicating with his lawyer as the reasons for the delay. This clearly was a less than t Belize High Court Claim No. 180 of 2011 ‘ zoo+ 121 BLR 404 (HC) t13l satisfactory disposition to his rase, In Shillingford, the lawyer put the fault at his door step as being entirely due to the pressure of work. This, again, in my view, was a less than proper response, In the case at bar, I find that more profound reasons are presented. The Regardas case: is not binding but I find immense common sense in the approac;h taken by the court in that decision, Like In Regardas, the applicant herein gave full instructions to hercounsel. Herevidence is that she followed up with the attorney’s office. I pause to say that this kind of diligence was not apparent in the Rose case for instance The applicant’s evidence is that the attorney’s office reassured her that her case was being managed by another attorney and that she would be contacted when needed. Furthrlr inquiry revealed that the attorney fa led to prosecute the matter as promised and a default judgrment flowed from the lack of diliqence. This litigant was not lackadaisical about her matter. None of what transpired resulted from a less than assiduous deportment from the applicant This is not to say that a claimant wlto has equally pursued his or her claim sedulously is to be left to the caprice, dalliance, indift’erence or negligence of the defendant or counsel. Rather the peculiar facts of this case denronstrate that the scrupulous attention of the applicant to the conduct of her matter was met with inexcusable heedlessness on the part of counsels office I find therefore that on these particular facts, the respondent has provided a good explanation for the failure to file a defence within the time limited by the rules. There was not much argument on whether the applicant has a real prospect of successfully defending the claim. The appli,:ant filed a defence at the same time as her application. Applicants are again reminded that this approach is not countenanced by the rules. The court’s permission is being sought and ought to be obtained before a defence is filed in these circumstances, A draft defence filed along with the application is the more appropriate Steprto. The applicant’s defence is that the statements were issu,:d on an occasion of qualified privilege and/or were fair comment made on a privileged occasion on a matter of public interest Thr: respondent argues that the defence has not been made out.

[14]The defences were particularis:d in a detailed fashion and narrate thr: following allegations – ‘o ceR t3.+13; 1. The applicant and the respondent were directors of the Antigua and Barbuda Tourisnr Authority (the Authority). The applicant was the Authority’s Deputy chairperson, member of the Finance Committee and a signatory on the Authority’s bank account. The respondent served in the additional post of president of the Antigua and Barbuda Cruise Tourism Association (the Association); On February 14,2013, the board of the Authority apponted (4) persons to attend a cruise tourism convention scheduled to take place in Florida, USA, The respondent was appointed to rerpresent the Association; The board decided to advance certain expenses to the respondent “r,yhic h would not have been repaid by the Association”‘, Subsequent to the February 2013 meeting the respondent called the applicant and asked if she could sign a “per diem cheque’ from the Authority to cover his trip to the convention. The res;pondent refused on the grounds that a perdiem was not one of the expenses approved by the board The applicant later learnt that the cheque was signed by another srgnatory to the Authority’s bank account; A later conversatiotr with a member of the Association disclosed that the resoondent was given a perdien by the Association whenever he travelled to conventions;

6.At a later meeting rtf the Authority on tVarch 28,2013, the applicant enquired of the respondent whether he was receiving financial support from the Association when he travelled to conventions. The respondent denied the same. The applicant then informed the meeting of the information she received from the member of the Association. The applicant then stated that it is her view that she had a legal, moral and social obligation to communicate the information to the members of the Authority. This obligation attached to her as member who was concerned with matters of finance. The applicant is required at this rstage to demonstrate her defence rs nrrt a fanciful or hopeless one. In Earl Hodge v Albion Hodge11, Harriprashad J recited the learning in tnternational Finance Corporation Utexafrica S,p,r.;t;z which states the principle thus The fact is that in ordrnary language to say that a case has no reelistic prospect of success is generally much the sa/ne as seying i/ is hopeless, whereas to say that the case has a reatistic prospect of success suggesfs something better than that it is merely arguable. That is clearly the sense in which fhe express ion w as used in the Saudi Eagle and , in my view , it ls a/so fhe sense rn which it vvas used in Rule 13.3′,1 (a) There are good reasons for that. A person who holds a [1 5] craim No. BVrHcv2ooT/ooo98 ” eootl ALL ER 101 tl lr regular iudgment, even a defaurlt iudgment, has somethrng of value, and in order to avoid injustic, he should not be deprived of tt wrthout good reason. Sometning more, than a merely arguable case is needed to tip the balance of justice to set the judgment aside.,, Taking the allegations as staterd, lcannot find that the defence is a fanciful one. Allegations of financial impropriety are matters that the applicant had an obligation to confront not only as a boarcl member but as one who dealtrvith the boards finances The board, in turn, had a right to receive such reports. At the very least, therefore, I find that the defence is more than a merely arguabler one which the applicant should be permitted to present at trial Having met the requisites of C;PR 13 3(1), the applicant is success;ful on her application to serl aside the default judgment and the default judgment is accordingly setaside. This siep is not taker lightly. As was stated in International Finance Corporation Utexalirica S,p.r.113, A person whc, holds a regular iudgment, even a default judgntent, has something of value,’and in order to avoid iniustice he should not be depr,ived of it without good reason Th; claimant has had iudqment in his favour from June 2014. lt is my view that the manner in which these proceedin”gs were conducted by the applicant, through no fault of hers, dictate that a costs award should be made in favour of the respondent (CPR 64.6(6). I was minded to consider tl’rat any costs awarded to the respondent should be paid by her legal practitioner as wasted cor;ts in accordance with CpR 64 8(1)(a), 64 8(2)(a) and 64.9(1) Counsel or his office’s condur;t in this matter led to an unfortunate series of event that lould have been avoided without great effort. I assess this conduct as the type of negligent act or omission contemplated by CPR 64.8(2). The laxity in this regard occasioned the entry of a default judgment against the applicanl for vvhich both litigants have had to tncur costs on this application to have it set aside. ln the course ol the hearing, iounsel for the applicant conceded that his office did not adequately represent the applicant’J interest when it came to the filing of the defence Counsel offered that his office would pay any costs awarded against the applicant. This concession is wholly appropriate, ltherefon: u*urdcosis of $1000.00 to the respondent which costs murst be paid by the legal practitioner for the applicant. The defence has been filed and served and crs such CPR 13.5 does not operate. Pursuantto CpR 13.6(2), the court office is to set a date for tie case management of this matter and notify the parties of such hearino. t17l 13 _>upra, nrt.