Richards J
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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IN THE GRAND COURT OF THE CAYMAN ISLANDS
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CIVIL DIVISION
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CAUSE NO: G 0006/2021
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BETWEEN:
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MURLYN BOBB-STEPHENS
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PLAINTIFF
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AND:
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EMILY HURLSTON-HOSEIN
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DEFENDANT
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Appearances:
Ms. Margeta Facey-Clarke of Facey-Clarke & Associates
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for the Plaintiff
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Ms. Alice Carver of Nelsons for the Defendant
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Before:
Hon. Justice Cheryll Richards Q.C.
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Heard:
30th March 2021
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Draft Judgment:
6th April 2021
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HEADNOTE
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Civil Law – GCR O.19 r. 3. Principles re exercise of discretion
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to set aside default judgment.
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JUDGMENT
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Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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1.
By Summons filed on the 9th March 2021, the Defendant applies for an Order that the
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Default Interlocutory Judgment for Damages to be Assessed, dated 23rd February 2021,
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be set aside. The Defendant also applies for certain connected orders including costs on
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an indemnity basis.
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2.
The background history is as follows. On the 12th January 2021, the Plaintiff filed a Writ
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of Summons against the Defendant. The Plaintiff’s claim is for damages and costs
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following on from a motor vehicle accident which occurred on the 26th January 2018.
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The Plaintiff was a pedestrian in the vicinity of the Rubis Gas Station on Walkers Road
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in George Town. She alleges that she was struck by a motor vehicle driven by the
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Defendant who was in the process of exiting the gas station compound. The Plaintiff
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further alleges that she suffered multiple injuries as a result of the accident.
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3.
The Writ was served personally on the Defendant on the 20th January 2021. Service was
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acknowledged on her behalf by her present attorneys on the 3rd February 2021. The
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Acknowledgement indicated an intention to defend the action. The Defendant did not
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file a defence within the specified time limit and no extensions of time were agreed or
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sought from the Court. Time for filing expired on the 18th February 2021. On the 19th
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February 2021, the Plaintiff applied for Default Judgment pursuant to GCR O.19 r.3.
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AFFIDAVIT IN SUPPORT
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4.
In support of her application to set aside, the Defendant has filed the Affidavit of Maylin
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Moxam dated 4th March 2021. This states that following the filing of the
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Acknowledgment of Service on the 3rd February 2021, Counsel for the Defendant
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contacted Counsel for the Plaintiff by telephone and discussed the matter with her. There
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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is no written record of what was said and there is a factual dispute as to what each
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understood the essence of the discussion to be.
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Both Counsel, and in particular Counsel for the Defendant, (not Counsel appearing for
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the Defendant before me today), did not shortly thereafter follow up the conversation
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with written communication.
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6.
Counsel for the Defendant understood that, pending settlement discussions, either a
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Defence would be filed or the case would be stayed by consent. Counsel for the
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Plaintiff’s understanding, as set out in an email dated 2nd March 2021, was that opposing
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Counsel had not had time to review the file and would have been in further contact with
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her with a without prejudice offer.
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THE LAW AND APPLICABLE PRINCIPLES
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7.
GCR O.19 r.9 provides that the Court may on such terms as it thinks just, set aside or
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vary any judgment entered in pursuance of this Order.
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8.
In Evans v. Bartlam1, the House of Lords considered the application of the discretion to
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set aside a default judgment pursuant to RSC O.13 r.10 and O.27 r.15 which are in
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similar terms to the Cayman Islands Rules. The Court reviewed the guiding principles
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which should be considered in the exercise of the discretion. These principles include
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that where the judgment was obtained regularly, there must be an affidavit of merits
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from the applicant in order to provide evidence that the applicant has a prima face
1 1937 2 All ER 646
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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defence. While there is no rule that the applicant must satisfy the court that he has a
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reasonable explanation for why the judgment was allowed to go by default, the court
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will have regard to any such reason in the exercise of its discretion.
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9.
In the later case of ED &F Man Liquid Products Ltd. v. Patel and another2, the English
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Court of Appeal compared the tests to be applied under the older Rules and the more
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recent Civil Procedure Rules in England and Wales. The Court referred with approval to
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the decision of the Court in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping
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Co. Inc.3. That decision noted that the case of Evans v. Bartlam contemplated that a
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defendant who is asking the court to exercise its discretion in his favour must show that
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he has a defence which has a real prospect of success, meaning, a defence which carries
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with it some degree of conviction. The court is required to form a provisional view of
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the probable outcome if the judgment were to be set aside.4
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Underpinning the approach in the cited cases is the commonsense principle that if the
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Defence is unmeritorious and unlikely to succeed, there would be no point in setting
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aside the default judgment.
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THE SUBMISSIONS
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11.
The Application by the Defendant in this case is made primarily on the basis that the
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proposed Defence to the Claim shows a reasonable prospect of success.
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2 2003 All ER (D) 75 (Apr)
3 1986 2 Lloyd’s Rep. 221
4 Ibid, para. 3
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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12.
In the draft Defence attached to the application, the Defendant denies driving without
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due care and attention, denies that the motor vehicle made any contact with the Plaintiff
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and avers that the Plaintiff was inattentive, negligent and stepped in front of the vehicle.
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13.
The Defendant’s case as set out in the Affidavit of Ms. Moxam is that the Plaintiff
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crossed in front of the vehicle driven by the Defendant without looking where she was
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going and either tripped or fell. It is further stated that there is no medical evidence which
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gives an opinion which is consistent with the Plaintiff’s version of events. Alternatively,
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the Defendant submits that even if the Defendant’s version of events were to be rejected
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there is a reasonable prospect of success on the aspect of contributory negligence. It is
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also urged that the Defendant would be deprived of the right to raise the issue of
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causation and to challenge the extent of the injuries claimed by the Plaintiff. Finally on
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this aspect, Counsel noted that the reference to possible settlement discussions was not
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a concession as to the lack of merit of the Defendant’s case but that frequently in smaller
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claims, Insurers will often consider the time and cost of the pending litigation as against
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the sums claimed and make a commercial decision.
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In response, Counsel for the Plaintiff submits that the Defence being put forward is a
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bare denial and cannot succeed at trial. It is said to be unmeritorious, particularly in light
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of the fact that the duty to give way rested with the vehicle of the Defendant which was
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exiting from a side road on to the main road. It is also said that it is obvious from the
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Report of the Accident Reconstructionist (not before the Court) and from the admissions
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made by the Defendant, that she was attempting to get on to the main road and that when
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the accident occurred, the Defendant did not make sure that the way was clear before
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proceeding.
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Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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15.
Counsel also submits that certain statements made under caution by the Defendant in the
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course of a police investigation and a sketch produced by the Police provide a sufficient
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evidential basis for this Court to say that the Defendant has no defence to the Plaintiff’s
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claim.
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Counsel submits further that the discretion should not be exercised to set aside the
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Default Judgment as to do so will cause prejudice to the Plaintiff and the case will be
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prolonged into a lengthy trial at the end of which the Plaintiff will succeed in any event.
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17.
After the hearing, Counsel for the Plaintiff attempted to transmit for the Court’s attention
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a medical report. This was met with the immediate objection of Counsel for the
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Defendant. In response to this objection, Counsel for the Plaintiff withdrew the report.
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This report was not and has not been reviewed by this Court and for the avoidance of
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doubt, it is made plain herein that no account is taken of it.
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By way of a second limb, Counsel for the Defendant also argues that having been put on
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notice of a possible settlement or Defence of the action it was procedurally improper for
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the Plaintiff not to put the Defendant on notice of the pending Default application or to
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bring to the attention of the Court the fact that these discussions had taken place. In
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support of this submission, Counsel relies on the cases of Woodgate (Cynthia) v. Zuniga
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(Migule Angel) and Another5, Jackson v. Jackson and Jackson6 and Gay v. Collins7.
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19.
In Cynthia Woodgate v. Miguel Angel Zuniga and Anor, the application before the
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Court was a Summons to set aside a Default Judgment which had been originally filed
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on the basis that service had been properly effected on the Defendants. That case turned
5 GC 75 of 2017, 12th July 2017
6 2013 (1) CILR Note 4.
7 G.C. Cause 86 of 2014, 7th October 2014
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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on the fact that the Default Judgment had been entered irregularly, there having been no
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valid service on the Defendants.
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20.
Before the entry of the Judgment, attorneys for the Insurance Company in respect of the
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vehicle owned and driven by the two Defendants had written to the Plaintiff’s attorneys
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for details as to the service of the Writ. No response was provided until after the Default
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Judgment had been obtained. The Court noted that while it was accepted that there had
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been no duty to provide copies of Affidavits of Service to the Insurers’ attorneys, it
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would have been professional courtesy. The Court also said that it would have been
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proper to warn the attorneys of the intention to enter Default Judgment.
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In Jackson v. Jackson and Jackson, the Plaintiff had failed to submit his statement of
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claim within the deadline set by the Court yet, nevertheless, applied for Judgment in
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Default once he had done so. The Court held that he had not been entitled to take any
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further step in the proceeding until he had purged his contempt. The Court also held that
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since at the time of the making of the application, the Plaintiff knew that the Defendants
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had intended to file a Defence, it would be unjust to allow the Default Judgment to stand.
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The Default judgment was set aside with leave given to the Defendants to file their
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Defence.
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In Gay v. Collins,8 on an application to set aside a Default Judgment which was regularly
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entered, the Grand Court said this:
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“Before I move on, I would like to comment on what I perceive to be good practice
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in cases where the attorney for the plaintiff is aware that the defendant is legally
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represented especially if an acknowledgement has been filed. It is a matter of
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professional courtesy and good practice that where an attorney knows that another
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attorney is concerned in a case that he should not seek to proceed by default without
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enquiry and warning.”
8 G.C. Cause 86 of 2014, 7th October 2014
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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23.
Counsel for the Defendant also relies heavily on the case of Roundstone Nurseries Ltd.
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v. Stephenson Holdings Ltd.9 and submits that the application therein was made in
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circumstances which were contrary to the basis of the Civil Procedure Rules which Rules
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are similar to the overriding principles to the GCR.
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In that case the English Court applied the test as set out in the Civil Procedure Rules:
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i)
Was the judgment wrongly entered i.e. is it irregular?
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ii) The Court may set aside a default judgment even if it is regular where
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a.
The Defendant has a real prospect of defending the claim.
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b.
It appears to the Court that there is some other good reason.
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25.
In that case, the parties had agreed to previous stays of the action in an attempt to reach
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settlement including by way of mediation. A Default Judgment had been obtained in
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circumstances where the agreed stay had expired and a further stay would have been
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required at least until after the scheduled mediation had been concluded. The Court noted
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that the position had been expressly confirmed in correspondence between the attorneys.
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Against the background of these circumstances the Court concluded that the application
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for Default Judgment was unreasonable. The Court stated:
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“During the course of his helpful submissions on this point, Mr. Crangle went
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so far as to say that, if a claimant was technically entitled to enter judgment in
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default then he was entitled to do so, even if he knew that the defendant had a
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real prospect of defending the claim and therefore setting aside such judgment.
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I am afraid I do not accept that submission: it seems to me that it is contrary to
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the entire basis of the CPR. If a claimant knows that, because of some technical
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glitch, he could enter judgment in default against the defendant, but that the
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defendant had a real prospect of successfully defending the claim (and therefore
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getting judgment set aside) then that claimant should not, at least as a general
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rule, enter judgment in default. If he does, it seems to me that he must face the
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costs consequences of that decision.
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Thus, I conclude that there is a good reason why the judgment in default should
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be set aside: because it was obtained in an improper manner and was the result
9 2009 EWHC 1431
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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of unreasonable conduct. Therefore, it seems to me the judgment in default
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requires to be set aside pursuant to the over-riding objective (CPR 1.1 ).”
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26.
In the instant case, Counsel submits that despite the difference of understanding between
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the attorneys, the judgment should be set aside in circumstances where:
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i.
The Plaintiff knew that there was an attorney on record;
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ii.
There had been discussion on 3rd February 2021 which at the very least
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indicated that the matter was yet to be reviewed and liability remained an
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issue;
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iii.
An Acknowledgement of Service had been filed indicating an intention to
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defend;
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iv.
There had been attempts to reach the Plaintiff to resolve matters prior to the
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23rd February 2021 when the judgment was issued; and
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v.
No notice had been provided of the application for Default Judgment.
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27.
In response to these submissions, Counsel for the Plaintiff argued that there had already
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been inordinate delay in this case including a period of extensive and fruitless
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negotiations prior to the Writ having been filed. It was submitted in effect that with there
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being no further response from the opposing side after the 3rd February 2021, the
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application for Default Judgment was not inappropriate.
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DISCUSSION AND CONCLUSIONS
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28.
There is no suggestion here that the Defendant has not acted promptly to set aside the
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Default Judgment. Judgment was entered on the 23rd February 2021. The Defendant’s
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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attorney was served with the Default Judgment on the 25th February 2021. The
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Application to set aside was issued on the 9th March 2021.
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29.
I have considered the merits of the case to the limited extent appropriate. This is a
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personal injury action. The draft Defence and Affidavit in support filed raise issues of
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factual disagreement. It is common ground between the parties that a criminal charge of
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Careless Driving against the Defendant was dismissed without a trial.
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30.
I accept as Counsel for the Defendant put it, that if there was no contact between the
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vehicle and the Plaintiff, liability is less likely to arise (in so far as no other cause other
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than contact is pleaded). I also accept that there are issues of contributory negligence
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and in the absence of any medical evidence, causation and therefore, the evidential
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position cannot be said to be definitively in favour of the Plaintiff at this stage.
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31.
As the Court noted in the case of Woodgate v. Zuniga, motor vehicle accident claims
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are notoriously fact-sensitive. On the facts of this case such as are before the Court, I
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cannot say that judgment for the Plaintiff is inevitable. Considering the matter broadly,
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I am satisfied that there is a realistic prospect of success of the Defendant’s case - noting
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that it has multiple avenues of approach.
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32.
I have also considered and take into account the circumstances in which the Default
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Judgment was entered. The fact that there was communication between the attorneys on
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the 3rd February 2021, is agreed. This is also evident from the correspondence exhibited
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to the Affidavit in support. Before receipt of the judgment, and being unaware of its
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issue, on Sunday 21st February 2021, the Defendant’s attorney wrote to Counsel for the
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Plaintiff in respect of a proposed consent order, “as agreed in discussions upon filing
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the acknowledgment of service”. The evidence is that thereafter Counsel made a number
Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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of calls to the telephone number for the Plaintiff’s attorney which went unanswered. On
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the morning of the 23rd February 2021, Counsel wrote again to the Plaintiff’s attorney
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indicating an inability to make contact by telephone and asking that the consent order be
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signed and returned.
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33.
Following receipt of the Default Judgment, Counsel for the Defendant by telephone and
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by e-mail of the 25th February 2021 endeavored to contact Counsel for the Plaintiff in
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order to seek agreement to the setting aside of the Default Judgment. No response was
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received until Counsel replied by email of the 2nd March 2021 indicating a different
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understanding of the conversation of the 3rd February 2021.
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34.
It is clear on the evidence in support of this application that Counsel for the Plaintiff was
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well aware that the Defendant was legally represented. Indeed direct contact had been
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made with her. While Counsel in filing the Application for Default Judgment may have
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been technically and procedurally correct, it is perhaps unfortunate in that it was contrary
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to the good practice and professional courtesy identified by this Court that this was done
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without further recourse to the Defendant’s attorneys.
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35.
I am satisfied that in all the circumstances of this case in particular on the merits of the
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Defence case, that the appropriate exercise of my discretion is that the Default Judgment
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ought to be set aside. I am satisfied that justice requires it. I grant the application of the
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Defendant to set aside the Default Judgment and for an extension of time of two days
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following the date of this judgment to file a Defence in the form of the draft appended
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to the Summons.
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Judgment: G 0006/2021: Bobb-Stephens (M) v Hurlston-Hosein (E). Coram: Richards J. Date: 09.04.2021
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COSTS
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36.
Counsel for the Defendant argued that if successful, costs should be awarded to the
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Defendant. Counsel asked the Court to consider that the application was made after
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default of only one day, and that had they been notified of the proposed application, the
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Defence would have been filed and all of this avoided. Additionally that the Plaintiff had
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been invited to set aside the application by consent rather that incur further costs.
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37.
While the Defendant has been successful in this application it is noted that the
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Defendant’s own conduct contributed to the confluence of circumstances which gave
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rise to the need for this application. Following the filing of the Acknowledgement of
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Service and the discussion of the 3rd February 2021, the Defendant did not follow
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through with written communication until 18 days later on the 21st February 2021. Had
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there been earlier communication, the misunderstanding would have been laid bare and
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there would have been time to respond appropriately before the filing deadline. It is not
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unreasonable to have expected that Counsel would have sought to have either an agreed
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position in writing prior to the deadline or at the very least some written correspondence
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in place. Balancing all matters, in my view the outcome which best meets the justice of
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this issue is for costs to be in the cause.
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Dated this the 9th day of April 2021
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Honourable Justice Cheryll Richards Q.C.
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Judge of the Grand Court