Bernadine Joseph Claimant v Ivor Gore JNR Sherilyn Frederick Defendants [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: MICHEL, J
• Judgment Date: 15 January 2010
• Judgment citation (vLex): [2010] ECSC J0115-1
• Docket Number: CLAIM NO. ANUHCH2006/0232
• Court: High Court (Antigua)
• Date: 15 January 2010

[2010] ECSC J0115-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. ANUHCH2006/0232

Between:

Bernadine Joseph

Claimant

and

Ivor Gore JNR

Sherilyn Frederick

Defendants

MICHEL, J

1 On 10^th May 2006 the Claimant, Bernadine Joseph, filed a Claim Form and Statement of Claim against the Defendants, Ivor Gore Jr. and Sherilyn Moore, claiming damages for personal injuries, interest on such damages pursuant to statute and costs. On 2^nd October 2006 an Amended Claim Form and Amended Statement of Claim were filed by the Claimant which amended the surname of the Second Defendant to Frederick but otherwise reproduced the contents of the original Claim Form and Statement of Claim.

2 The original and amended Claim Forms and Statements of Claim were served on the Second Defendant on 5^th October 2006 and on the First Defendant on 23^rd February 2007.

3 On 12^th April 2007, no Acknowledgement of Service having been filed by either of the Defendants, the Claimant filed a Request for Entry of Judgment in Default for damages to be assessed with costs and a Judgment in Default of Acknowledgement of Service against the Defendants for damages to be assessed was entered on that date.

4 On 22^nd June 2009 the Second Defendant was served with a copy of the Judgment in Default of Acknowledgement of Service dated 12^th April 2007.

5 On 17^th July 2009 the Second Defendant filed a Notice of Application with Affidavit in Support for an order pursuant to Rule 13.3 of the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000 (the CPR) that the Judgment in Default of Acknowledgement of Service entered on 12^th April 2007 be set aside.

6 In her affidavit in support of the application to set aside the Default Judgment, the Second Defendant stated that in October 2006 she was served with the Amended Claim Form, Amended Statement of Claim and other documents in this matter and immediately took them to her insurance company and left copies with the insurance company. She stated that she heard nothing further from her insurers and concluded that the matter had been settled, since her vehicle had been insured at the time of the accident. She stated that it was only when she was served with the Default Judgment on 22^nd June 2009 that she realized that the matter had not been dealt with by the insurance company and she immediately took a copy of the Default Judgment to her insurers and sought legal advice in respect of the matter. She stated that she was advised and verily believes that she has a real prospect of successfully defending the claim. She exhibited a draft of her defence with her affidavit and prayed that her application to set aside the Default Judgment be granted.

7 The defence of the Second Defendant consists of non admissions of the allegations contained in the Statement of Claim, except for her ownership of the motor car involved in the accident which she admits but states that at the time of the accident the First Defendant was not driving as her servant or agent and that she permits the First Defendant to use the car for his own purposes.

8 On 23^rd September 2009 Counsel for the Claimant filed a written submission in opposition to the application of the Second Defendant, together with a copy of the case of Perez v Banner (2009) 73 WIR 74,1 which he cited in support of his submission.

9 The matter came before the Court on 25^th...