[1] Jayson Stickings v [2] Sharon Allen, RBC Royal Bank of Canada (Now Doing Business as ACB Caribbean)

• Jurisdiction: Antigua and Barbuda
• Judge: Baptiste JA,Webster JA [AG.]
• Judgment Date: 06 July 2022
• Neutral Citation: AG 2022 CA 006
• Docket Number: ANUHCVAP2021/0023
• Court: Court of Appeal (Antigua and Barbuda)

BETWEEN:

[1] Jayson Stickings

[2] Sharon Allen

Appellants

and

RBC Royal Bank of Canada (Now Doing Business as ACB Caribbean)

Respondent

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise E. Blenman Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

ANUHCVAP2021/0023

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Default judgment — Setting aside judgment in default of acknowledgement of service — Exercise of a master's discretion — Whether the master erred in the exercise of his discretion by dismissing the application to set aside the default judgment — Part 12 of the Civil Procedure Rules 2000 -Rule 13.3. — Whether the application fell to be considered under the discretionary provision of Rule 13.3 — Service of the originating claim — Rule 5.15 of the Civil Procedure Rules 2000 — Proof of Service — Whether there was proof of service upon the appellants in accordance with Rule 5.15 and 12.4 (a) — Failure to file acknowledgment of service — Whether there was a valid obligation to acknowledge service as specified under the rules or by order of the court — Part 7 and Rule 13.2 of the Civil Procedure Rules 2000- Service out of the jurisdiction

Held: (per Baptiste JA and Blenman JA), allowing the appeal and setting aside the master's decision and order dismissing the application to set aside the judgment in default of acknowledgement of service and awarding the appellants’ costs of the appeal in the sum of $1000.00, to be paid by the respondent Bank that:

• 1. The purpose of service of the originating process is to seek to ensure that the defendant(s) in a civil claim are given proper notice of the claim brought against them and is given a reasonable opportunity to put forward any defence to the claim.

  When service is properly effected it is only then that the defendant is subject to the court's jurisdiction. CPR 13.2 mandates that the court must set aside a judgment entered under Part 12 if the judgment was wrongly entered. In this present case, it cannot be said that service of the claim form at an address at which the appellants were not residing for about 8 years, could have constituted service in accordance with the court's order. Service at the given address could not reasonably be expected to have brought the proceedings to the attention of the appellants. It follows therefore that the learned master ought to have set aside the default judgment since time for filing the acknowledgment of service had not begun to run.

  Part 12 of the Civil Procedure Rules 2000; Rule 13.2 of the Civil Procedure Rules 2000; Barton v Wright Hassall LLP [2018] UKSC 12 applied; Dubai Financial Group LLC v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 applied; Personal Management Solutions Limited and Others v Gee 7 Group Limited and Another [2016] EWHC 891 (Ch) applied; Canada Goose UK Retail Ltd & Another v Persons Unknown and another [2019] EWHC 2459 (QB) applied; Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 applied.

• 2. Where a defendant has not been served with the originating process, to deprive him thereafter of any period during which he can acknowledge service is unfair and unjust. CPR 7.5(1)(c) provides that an application to serve out of the jurisdiction may be made without notice but must be supported by evidence on affidavit stating where the defendant may probably be found. In this case, the Bank had to prove service of the claim at the appellants’ usual place of residence in England. A bald assertion as to the usual residence is not sufficient, there must be a nexus with that address. The learned master found that the appellants were not aware of the claim as they did not reside at the address at which the claim was served. The master's finding that this was a good explanation for failure to file an acknowledgement of service, cannot, in the circumstances, be divorced from the important issue of lack of service of the originating process. It cannot be said that the appellants were under a valid obligation to acknowledge service, either as specified under the CPR or by order of the court. Accordingly, the default judgment entered in those circumstances ought to have been set aside.

  Part 7 of the Civil Procedure Rules 2000 applied.

  Per Webster JA [Ag.] (dissenting):

• 1. Where either the CPR or an order of the court provides the method of service and that method is followed, but the claim does not come to the attention of the defendant, his remedy is to either apply to set aside the order granting permission to the applicant to serve the claim out of the jurisdiction or apply under CPR 13.3 to set aside the default judgment. In this case the amended claim form and amended statement of claim were served in accordance with the order of Henry J dated 23 September 2016 for service on the appellants outside the jurisdiction by FedEx. The appellants did not apply to set aside the order for service. Instead, they applied under CPR 13.3 to set aside the default judgment.

  Rule 13.2 of the Civil Procedure Rules 2000 applied; Rule 5.15 and 12.4 of the Civil Procedure Rules 2000 considered; Barton v Wright Hassall LLP [2018] UKSC 12 distinguished; Dubai Financial Group LLC v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 distinguished; Abela and others v Baadarani [2013] UKSC 44 distinguished.

• 2. The court may set aside a default judgment if it is satisfied that the applicant has met the three conditions in CPR 13.3. A failure to satisfy any one of the three conditions is fatal unless the defendant brings himself within CPR 13.3(2) by demonstrating that there are exceptional circumstances warranting the setting aside of the default judgment. The learned master found that the appellants did not satisfy the third condition in CPR 13.3(1), namely, that they had a real prospect of successfully defending the claim, and that there were no exceptional circumstances attending the application. Therefore, he dismissed the application to set aside the default judgment. An appellate court will disturb the exercise of a master's discretion only where it finds that the master erred in principle in his approach or has left out of account some aspect that he should have considered, or considered some matter that he should not have, and as a result his decision exceeded the generous ambit within which reasonable disagreement is possible, or the decision is wholly wrong. If it cannot be said that the master, in exercising his discretion, acted improperly or erred in principle, there is no basis upon which this Court can properly interfere with the exercise of his discretion to dismiss the application.

  Rule 13.3 of the Civil Procedure Rules 2000 applied; Public Works Corporation v Matthew Nelson DOMHCVAP2016/0007, (delivered on 29 ^th May 2017, unreported) applied; Yates Associates Construction Co Ltd v Brian Quammie BVIHCVAP2014/0005 (delivered on 5 ^th May 2005, unreported) applied.

By order of the High Court dated 21 ^st October 2015 in claim no. ANUHCV2015/0558, the respondent, RBC Royal Bank of Canada (now doing business as ACB Caribbean) (“the Bank”) was granted permission to sell certain properties which were obtained by the appellants through a loan facility secured by legal charge in respect of the two proprieties. The sale of the two properties were insufficient to satisfy the appellants’ debt to the Bank, consequently, on 22 ^nd September 2016, the Bank filed an amended claim form and amended statement of claim in claim no. ANUHCV2016/0437 to recover the balance of a debt owed by the appellants to the Bank. The Bank also filed a without notice application for permission to serve the amended claim form and amended statement of claim on the appellants outside the jurisdiction of Antigua and Barbuda.

On 23 ^rd September 2016, the Bank obtained a court order permitting service of the amended claim form, amended statement of claim and a copy of the order, on the appellants in England by Federal Express (“FedEx”), at 3 Coopers Drive, Bexley Grange, Dartford, Kent, England, DA3 7W3. In proof of service, the Bank filed an affidavit of service sworn to by Anthea Joseph, Litigation Clerk. Ms. Joseph deponed that on or about 4th October 2016 she delivered to the FedEx office in St. John's, Antigua, a sealed package containing a claim form, a statement of claim, an amended claim form and amended statement of claim and order, to be delivered to the appellants at the stated address in England. Ms. Joseph exhibited a copy of the FedEx Airway Bill and a copy of the FedEx tracking sheet.

On 12 ^th January 2017 judgment in default of acknowledgement of service was entered by the court in the sum of $827,627.88 plus interest and costs. The appellants applied to set aside the default judgment pursuant to rule 13.3 of the Civil Procedure Rules 2000 (“CPR”). The appellants claim that they were never served with the amended claim form, amended statement of claim and the other documents. They did not live at the address stated and had not resided there since 2008; thus, were in no position to file an acknowledgement of service as they were unaware of the claim. The learned master found that the appellants did not satisfy the requirements of CPR 13.3 and dismissed the application to set aside the judgment in default of acknowledgement of service.

The appellants being dissatisfied with the decision of the learned master appealed. The issues for this Court's consideration are: (i) whether the master erred in dismissing the application to set aside the default judgment and concluding that the application fell to be considered under the discretionary provision of CPR 13.3. (ii) whether there was proof of service upon the appellants in accordance with CPR 5.15 and 12.4 (a) and (iii) whether there was a valid...