Ruthlyn Small v Terry Small
| Jurisdiction | Barbados |
| Judge | Madam Justice Margaret Reifer |
| Judgment Date | 21 August 2020 |
| Neutral Citation | BB 2020 HC 40 |
| Court | High Court (Barbados) |
| Docket Number | Civil Suit No: 121 of 2019 |
| Date | 21 August 2020 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
The Hon. Madam Justice Margaret Reifer, Judge of the High Court
Civil Suit No: 121 of 2019
Mr. Rudolph N. Greenidge for the Applicant/Defendant.
Ms. Shelley A. Gooding for the Respondents/Claimants.
This is an application dated 14 June 2019, in which the Defendant to this action is seeking an order of this Court setting aside a judgment in default for failure to file an acknowledgment of service.
The Claim Form together with Statement of Claim was filed on 31 January 2019.
Pursuant to the affidavit of service filed by the Claimant on 14 February 2019, personal service was effected on the Defendant on 13 February 2019.
Judgment in default was given against the Defendant on 10 May 2019 after a request therefor was filed by the Claimants on 4 March 2019.
Judgment was entered administratively by the Registrar of the Supreme Court after evidence of service of the Claim Form and Statement of Claim had been received. Judgment was for a dollar amount plus interest commencing on 11 May 2019. The judgment was entered on 3 June 2019.
This followed a failure on the part of the Defendant to file an acknowledgement of service pursuant to Part 9 of CPR and/or a Defence pursuant to Part 10 of CPR. No application was made by the Defendant to extend the time for filing a Defence.
The Notice of Application to set aside the default judgment was filed on 14 June 2019. The Affidavit in Support of even date was sworn by the Defendant's attorney-at-law. A draft Defence was attached.
A counter-notice seeking the dismissal of the Defendant's Notice of Application was filed on 29 November 2019 by the Claimants together with an Affidavit in Support of even date.
Before the hearing of either application, the Claimants filed a judgment summons on 20 June 2019.
Both parties filed written submissions on 2 March 2020 on the order of the Court of 28 January 2020.
The matter was heard remotely by this Court, after being delayed by the Covid-19 outbreak, on 3 June 2020.
Two documents were filed by the Applicant/Defendant without the leave of the Court. The first was a Defence filed 27 January 2020. Counsel purported to do so on the authority of Deckles J, but I am satisfied from the record that no such order was made by Beckles J; there is no record of such on the file, on the JEMS system or in the clerk's notebook.
The second is the affidavit of the Applicant/Defendant filed on 3 June 2020 exhibiting a certified copy of the Claim Form and Statement of Claim in Suit No. 0209 of 2019.
What remains is for this Court to determine whether to exercise its discretion under CPR 26.4 to rectify this procedural error.
On 21 July 2020, I informed the parties that the default judgment was set aside with Reasons to follow.
These are those Reasons.
In view of the fact that the Respondents/Claimants' submissions relied heavily on pre-CPR authority and the application of the case of Ramkissoon v Olds Discount Ltd (1961) 4 WIR 73 ( Ramkissoon), while Counsel for the Applicant/Defendant argued that the Ramkissoon standard is no longer applicable, I propose to start by looking briefly at the “old” law and authorities, together with the CPR provisions and post CPR authorities.
This approach raises the question of whether the pre-CPR authorities still hold true, and in the case of Ramkissoon, whether it can be distinguished from the circumstances of the case at bar.
The facts of Ramkissoon to some extent mirror some of the circumstances of the instant case in that the Affidavit of Merits (affidavit in support) has been sworn to by the Defendant's attorney at law. In Ramkissoon, the defendant argued that the affidavit of his solicitor together with the defence signed by counsel was a sufficient disclosure of merit and dispensed with the need for an affidavit from the defendant personally. The Court disagreed with him, the primary rationalization being that the statements in the defence were not on oath “and it is open to the court to suspect that the object of the defendant, in the absence of an affidavit, is to set up some mere technical case, or to cause delay.” (McShine CJ (ag)). The solicitor who deposed to the affidavit in Ramkissoon did not purport to testify to the facts set out in the defence, nor did he swear of his personal knowledge as to the matters going to constitute the excuse for the failure. On this basis, it did not amount to an affidavit stating facts showing a substantial ground of defence. The Court of Appeal held that since the facts related in the statement of defence had not been sworn to by anyone, they were not in the court's view an affidavit of merits.
Prior to CPR, the court had wide powers to set aside default judgments on such terms as it thought just under the Rules of the Supreme Court 1982, Order 19 Rule 9. The law on setting aside arose in two circumstances as follows: (i) where the judgment had been irregularly obtained; and (ii) where it had been regularly obtained, and the defendant could show a “triable issue” or an “arguable defence”.
The setting aside of an irregularly obtained judgment was usually automatic once the irregularity was shown. Common examples of procedural irregularities were, inter alia, (i) where a judgment in default was entered even though an acknowledgment had been filed or the time period for filing an acknowledgment had not yet expired; (ii) where a default judgment was entered in default of defence, but a defence had been filed or the time limit for filing a defence had not expired; (iii) where an application for summary judgment was made before the default judgment but had not been disposed of; (vi) the claim was satisfied before judgment was entered; and (v) where final judgment was entered for an unliquidated claim instead of an interlocutory judgment. The summons needed only to specify the irregularity.
Where however the judgment was regularly obtained, the exercise became more complex as the court first had to determine whether the case for the defendant showed an “arguable defence” or a “triable issue”. In such circumstances, the Court would exercise a discretion. In this regard there were certain well-known authorities that marked the way. There was Evans v Bartlam [1937] AC 373 ( Evans v Bartlam) and Alpine Bulk Transport Co. Inc. v Saudi Eagle Shipping Co. Inc. The Saudi Eagle [1986] 2 Lloyd's Rep 221 CA ( The Saudi Eagle), in particular.
In Evans v Bartlam, Lord Atkin is famously reported as stating:
“…The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”
Locally, we saw these English authorities applied in cases such as Bico Ltd v McDonald Farms Ltd BB 1996 CA 38; Hawkins v Arthur et al BB 2003 HC 19 (unreported) and W H Bryan & Co Ltd v Mildred Caroline Herbert BB 2002 HC 23, both of which set aside a default judgment on the basis that there were triable issues between the parties.
Two main issues featured largely in these early cases, and that is, the correct test and the Affidavit of Merits.
The issue surrounding the correct test or proper standard revolved around whether an applicant seeking to set aside a regularly obtained judgment had to do more than show “an arguable case” or a “triable issue”, the test used in the Rules of the Supreme Court ( RSC) Order 14. In later cases, the test applied was a real likelihood of success or real prospect of success or real prospect of successfully defending the claim: see The Saudi Eagle. In ED and F Man Liquid Products Ltd. v Patel [2003] EWCA CW 472, often cited and adopted in this jurisdiction, the United Kingdom Court of Appeal confirmed that this test is the same as the test for summary judgment and that it is higher than under RSC, Order 14. The only difference is in the burden of proof: see also Swain v Hillman [2001] 1 ALL ER 91.
In Clarke v Hinds et al BB 2004 CA 15 ( Clarke v Hinds et al), Williams CJ in a pre-CPR ruling, stated the test to be applied in the following terms:
“[15] The major legal requirement to set aside a regular judgment will generally be whether the defendant has a good defence which has a real prospect of success. The principles applicable have been set out by this Court in Bank of Nova Scotia v Emile Elias & Co. Ltd (1992) 46 WIR 33. We therefore bear those principles in mind.”
A similar approach was seen in the case of Smith v Medrington (1997) Supreme Court BVI, No 103 of 1995 (unreported) where Moore J stated, on the authority of The Saudi Eagle that it was not sufficient for the defendant to show a merely “arguable defence”, he had to convince the court that he had a real prospect of success.
Similar approaches were seen in decisions across the region pre-CPR.
Thus, the expression of this test foreshadowed the wording of CPR discussed below.
The Affidavit of Merits referred to the necessary and credible affidavit evidence establishing the real likelihood of success. It was often explained as the determination of whether the defence or proposed defence has merit to which the court should pay heed, not as a rule of law but as a matter of common sense: see Sir Roger Ormrod in The Saudi Eagle and Evans v Bartlam.
In the Commonwealth Caribbean generally, and in Barbados in particular, it became the norm to use the decision in Ramkissoon as an almost inflexible rule. In other words,...
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