LEONTINE PORTLAND v JOSEPH NICHOLAS

SAINT LUCIA: IN THE HIGH COURT OF JUSTICE (Civil) No: 10 of 1997 Between: LEONTINE PORTLAND Plaintiff .v JO~EPH NICHOLAS Defendant Appearances: Mrs. P. Jeffrey-Nelson for the Plaintiff Mrs S. Lewis for the Defendant 1999: March 17, and 24. DECISION ALLEN J. By a summons dated October 29, 1998 the Defendant, in this action, is seeking leave for extension of time in which to file a defence and counterclaim and to set aside a default judgment served on the same day, and the Plaintiff is resisting the application; her affidavit in opposition was sworn and filed on the day of February 1999. In paragraph 2 of the affidavit in support of the Defendant's summons, Counsel refers to a draft order dated the 21 st March 1998. This order in paragraph 1 set aside a judgment entered on the 6th March 1998.and paragraph 2 allowed the Defendant 7 days in which to file a defence and counterclaim. It is immediately obvious that the order referred to by the Defendant is not referring to the same judgment as the one she seeks to set aside by her summons. It is necessary therefore to carefully examine the court records of proceedings in this case: ") On the 9 th July 1997 the Plaintiff ued a of summons Defendant in \vhich she claimed:

1.Special damages in the sum of $21.420.

2.A! {\.jure; of rent in the sum h,:P .... ;""'II..:;

IlS

4.evil-.J",,! oumuges

5.C()~t.:> rs of s')eci31 damaGes " . ,0-, items :.::;: vii. l~ "..r ",,' of a concrete floc. "" VIlL 1 ..... ....:'-'. '000..1 ...... ''-1. ,-" <,.,J, 0 ;.~q0"';j\' \;"_1; _ ! , f '...1 '/ ,~~, -...: i ..... " on timber tr-:; :. C,I 1_ 1 SS8 the phin~;;'; judgment ,~~runce ,: sum of $27.420 ,....r, thereby th3t her was demond. Two well known rules have been broken here: 1. in every case where the Court has to quantify or assess the dZlmaS;8s or loss whether or non-pecuniary are :...;niiq:...;idatt;d. S damages must be strictlv oroven. The judgment entered on the 18th February therefore was irregular, some strange reason this judgment was approved by the Registrar and judgment was formally entered for the stated sum on 6th March 19S8. On the 19th February 1998 appearance was entered for the Defendant but s entry of appearance was disregarded simply because, so it seems Pbintiffs judgment which was formaily entered on the 6th march as I have stated above, was filed on the 18th February, that is, the day before appearance was entered. It is necessary to examine therefore the rules of the Supreme Court relating to entry of appearance and entry of judgment in default of appearance. Order 13 Rule 7. Proof of Service of Writ Judgment shall not be entered agairst a Defendant under this order (a) an affidavit is filed by or on behalf of the plaintiff proving due s8rvice of the writ or notice of rile writ on the Defendant; or (b) the Plaintiff produces the writ endorsed by the Defendant's Solicitor with a statement that he accepts service of the writ on the Defendant's behalf. , This is a strict rule and an obvious safeguard against injustice. I go back to Order 12. 5-(1) A Dc;:fc;:ndant may not enter an appearance in an action after been ent0red therein except vvi le;:>\le of the Court. (2) Except as provi,,;ed in paragraph (1) nothing in these rules or arw --:: orde:r a ~ ~ndd shall be construed as precluding a Defenc!c:nt appearunC2 In an action after the time limited for appearina but if a e . n Z:';J83ranCe after =. l":~ the court or;::;C;(~~. ,,,fl:JLled to serve a c: or do Oknt:;: thir,"'~ ff ~f.-tr""";;"""" "",0 \'ilJ that time. ',...,/ c.,~-.;;r d ..... t.;:;d 8th April 1998 the Court he;;rd an ,....;. ~ I, d of c.. -.}, ~ Cli. ~ , " .,,~ --:::. .t.t.,:,) , ':;, 1.[ ,....; I __ " ._,~ ;~,:";,,,,:; \,u.s therefore to c:! 1 October 1998 a notice of chance of Solicitor '!"as on tho F: .. The new Solicitor quite astutely realized that the iudgment :3 I;quiu",~~.~ . '.Jm could not stand, and on the October 1998 1:,~ ",,;(f for damages to be assessed. It is a golden rule that an order of the court remains in force it as been obeyed or satisfied, varied or set aside. It follows therefore that this new judgment is also irregular The order of the Court is: (1) The order of the Court dated 8th April 1998 is hereby set aside. (2) The judgment entered by and on behalf of the Plaintiff on 29th 1958 is hereby set aside. (3) The Solicitor for the Defendant is hereby ordered to file and serve a notice of Chc:...nS8 of Solicitor on or be"ore Friday, 26ih 1,;1arch < '-:::: ~., r already done so. (4) The Defendant is herAby granted leave to serve and file :2 or a cc:it:nc3 and counterc13im as t!le case may be, withir .::: .. ' .--;;::, ddte hc:rc:of. (5) A draft of this order must be submitted for approval b y the Court on or bdore Friday, 26th March 1989. (6) Cost in the cause.

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KENr>JETH~ALk.~N b.c.: OBE

High Court Judge (Ag.)

Suit No: 10 of 1997 ALLEN J. Delivered: 24/03/99