Patricia Gibbs v The Attorney-General

JurisdictionBarbados
CourtHigh Court
JudgeMadam Justice Sonia L. Richards
Judgment Date15 July 2020
Neutral CitationBB 2020 HC 31
Date15 July 2020
Docket NumberCV NO. 1840 of 2014

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL JURISDICTION

Before

Dr. The Hon. Madam Justice Sonia L. Richards, Judge of the High Court.

CV NO. 1840 of 2014

Between
Patricia Gibbs
1 st Claimant
Shirley Linton
2 nd Claimant
Donnya Codrington

(An infant, by his grandmother and next friend, Patricia Gibbs)

3 rd Claimant
Doniko Codrington

(An infant, by his grandmother and next friend, Patricia Gibbs)

4 th Claimant
Zavier Brathwaite

(An infant, by his mother and next friend, Lisa Brathwaite)

5 th Claimant
Maurice Forde
6 th Claimant
Maurice Linton
7 th Claimant
Nicole Codrington
8 th Claimant
Sheila Codrington
9 th Claimant
Krystle Codrington
10 th Claimant
and
The Attorney-General
1 st Defendant
Lemuel Rawlins
2 nd Defendant
Mahy Ridley Hazzard Engineers Ltd.
3 rd Defendant
Jerry Emtage
4 th Defendant

Mr. D. Comissiong, in association with Mrs. K. Turton and Mr. S. Thompson, for the Claimants.

Ms. D. Brathwaite Q.C., Deputy Solicitor General for the 1 st Defendant.

Mr. P. Pilgrim Q.C., for the 2 nd Defendant.

Mr. L. Haynes Q.C., in association with Mrs. D. Haynes and Ms. F. Finisterre, for the 3 rd Defendant.

Mrs. R. Nicholls of Clarke Gittens Farmer for the 4 th Defendant.

DECISION
Introduction
1

This is an application for the Court to exercise its discretionary power, under Part 13.3 of the Supreme Court ( Civil Procedure) Rules, 2008, (“the CPR”), to set aside a regularly obtained default judgment.

Background
2

The claim in this matter was filed in December 2014, seeking damages against the Defendants as a result of the deaths of five members of a family. These individuals perished after their apartment building at Arch Cot Terrace, Brittons Cross Road, St. Michael, collapsed into a subterranean cave on 26 August 2007.

3

On 04 TH March 2016, this Court heard an application filed on 09 November 2015 requesting a default judgment against the Attorney-General (“the A-G”), as the 1 ST Defendant, for his failure to file a defence. The Court granted the order on the basis that the A-G was in flagrant breach of the CPR. The time for the filing of the defence had expired in February 2015, and the A-G filed a defence but did not apply for leave to file the defence out of time. Therefore, the defence was not only out of time, but filed without the permission of the Court.

4

The A-G filed an application to set aside the default judgment on 17 March 2016. The application was supported by the affidavits of counsel for the A-G and Mr. Mark Cummins, the then Chief Town Planner.

The Legal Framework
5

Part 13 of the CPR provides inter alia that:

  • “13.3 (1) The court may set aside or vary a judgment entered under Part 12 if the defendant has a real prospect of successfully defending the claim.

  • (2) In considering whether to set aside or vary a judgment under this rule, the court must consider whether the defendant has

    • (a) applied to the court as soon as reasonably practicable after finding out that judgment had been entered; and

    • (b) given a good explanation for the failure to file an acknowledgement of service or a defence as the case may be.

  • (3) Where this rule gives the court power to set aside a judgment the court may instead vary it.

  • 13.4 (1) An application may be made by any person who is directly affected by the entry of judgment.

  • (2) The application must be supported by evidence on affidavit.

  • (3) The affidavit must exhibit a draft of the proposed defence”.

6

Rule 13.3 of the CPR has a counterpart in Rule 13(3) of the Jamaica procedural rules. It has been observed that these rules which place:

“…‘real prospect of defending the claim’ in pole position in subsection (1), with the other two elements relating to promptitude of the application and good explanation for failure to acknowledge service or to defend, in subsection (2), thereby confirming the primacy of the requirement of a good defence as established in Evans v. Bartlam[ [1937] AC 473]”. (See Gilbert and Vanessa Kodilinye, “Commonwealth Caribbean Civil Procedure”, 4 th ed. at p.64 and the cases mentioned at fn.28).

7

Although the real prospect of defending the claim is drafted as the primary requirement for convincing a court to set aside a default judgment, a failure to make an early application, or to tender a good reason for the failure to file a defence, may undermine the application. According to Sykes J, as he then was:

“…in the absence of some explanation for the failure to file the acknowledgement of service or the defence, the prospect of successfully setting aside a properly obtained judgment should diminish somewhat. Similarly, if the application is quite late, then that would have a negative impact on successfully setting aside the judgment”. ( Saunders v. Green (2007) SC, Ja. No. 2005/2868, decision dated 27 February 2007).

8

This Court takes additional guidance from the Court of Appeal of Jamaica. When giving consideration to the equivalent of Part 13.3 of our CPR, that Court opined that:

“Based on the provisions of the CPR and the relevant case law, the considerations for the court, before setting aside a judgment regularly obtained, should involve an assessment of the nature and quality of the defence; the period of delay between the judgment and the application made to set it aside; the reasons for the [defendant's] failure to comply with the provisions of the rules as to the filing of a defence or an acknowledgement of service, as the case may be, and the overriding objective which would necessitate a consideration as to any prejudice the claimant is likely to suffer if the default judgment is set aside”. ( Flexon Limited v. Michelle et al [2015] JMCA App 55 at para. [16], per McDonald-Bishop JA).

9

It should be noted that the Court is limited to a balancing of the three limbs in Part 13.3(1) and (2) of the CPR. There are no additional grounds, as for example, some other good reason, which is found in the English counterpart. (Rule 13.3 (1) (b)). The Court will evaluate the A-G's application against the Part 13 criteria.

Timing of Application
10

The A-G's application was filed within two weeks of the Court's order granting the default judgment. Therefore it meets the requirement for filing as soon as reasonably practicable after the default judgment was entered. There is no evidence of unreasonable delay in that regard.

11

A Good Explanation

Before considering the explanation tendered on behalf of the A-G, it would be useful to set out briefly the critical time frames which were not observed. The ten Claimants filed their joint claim on 12 December 2014. The relevant documents were served on the A-G on 06 January 2015. This was some seven plus years after the Arch Cot tragedy.

12

The A-G filed and served an acknowledgement of service on 16 January 2015. The CPR required the filing and serving of the defence within 28 days of service of the documents on the A-G, that is, by 03 February 2015. This deadline passed without the filing of the defence.

13

Counsel for the Claimants waited for nearly nine months before serving a notice on the A-G. The notice drew attention to the A-G's default, and called for the filing of the defence within 14 days, or no later than 30 October 2015. There is no evidence that counsel for the A-G ever sought the agreement of counsel for the Claimants to extend the time for the filing of the defence. The second deadline of 30 October also expired. And there was no application made to the Court to extend the time allowed for the filing of the A-G's defence.

14

It was in these circumstances that the Claimants filed their application for a default judgment on 09 November 2015. In the meantime a defence was filed on behalf of the A-G, on 27 November 2015, without the permission of the Court. After hearing the parties, the Court granted the following order:

“Judgment is entered against the [A-G] for damages to be assessed and costs to be agreed or assessed on the ground that no defence has been filed or served by the [A-G] and that the costs of and occasioned by this application be the Claimants' to be agreed or assessed”.

15

Counsel for the A-G relied on paragraphs 13 to 21 of her affidavit filed on 17 March 2016, as providing a good explanation for the failure of the A-G to file a defence within the prescribed time. These paragraphs state that:

  • “13. Claim No. 1840/2014 which was served on the [A-G] in January 2015 is not a simple claim.

  • 14. It involves claims for damages made pursuant to the Accident (Compensation Reform) Act Cap. 193A and the Law Reform ( Miscellaneous Provisions) Act Cap. 205.

  • 15. Claim No. 1840/2014 involves ten (10) Claimants and four (4) Defendants. Three (3) of the Claimants are minors which raises its own peculiarities.

  • 16. The exhibits submitted in support of the Claim include a Coroner's Report and Verdict dated 29 th December 2011. This document alone is comprised of ninety-seven (97) pages and four hundred and fifteen (415) paragraphs.

  • 17. The Coroner's Report and verdict is a very lengthy and detailed document. A proper review and analysis of it took a considerable amount of time.

  • 18. The information received from the relevant Government Agency in respect of this Claim would have included things of a specialized and technical nature which would have required in depth questioning and understanding by Counsel for the [A-G] in order to prepare a proper defence to the allegations and claims raised in the [Claimants'] Statement of Case.

  • 19. The volume of work within the [A-G's] Chambers as well as the staff constraints which the Chambers has been experiencing unfortunately contributed to the delay in the filing of the [A-G's] Defence.

  • 20. I am informed and verily believe that it was never the intention of the [A-G] to be disrespectful to the Claimants or to the Honourable Court.

  • 21. Despite valiant efforts made on behalf of the [A-G] a Defence was not...

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