Carl Baynes Claimant/Respondent v Ed Myer Defendant/Applicant

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Glasgow, M
• Judgment Date: 16 June 2015
• Judgment citation (vLex): [2015] ECSC J0616-1
• Docket Number: Claim Number: ANUHCV 2014/0058
• Date: 16 June 2015

Between

Carl Baynes

Claimant/Respondent

and

Ed Myer

Defendant/Applicant

[2015] ECSC J0616-1

Before:

Raulston Glasgow Master

Claim Number: ANUHCV 2014/0058

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Hugh Marshall along with Kema Benjamin for the claimant/respondent

Dr. David Dorsett for the defendant/applicant

RULING ON APPLICATION TO SET ASIDE DEFAULT JUDGMENT

Glasgow, M

1 On October 3, 2014 the defendant herein (hereinafter the applicant) filed an application requesting the setting aside of a default judgment granted to the claimant (hereinafter the respondent) on July 4, 2014. The applicant asks that the court set aside the default judgment on the grounds that –

(1) Exceptional circumstances exist which go to the root of the claim. In this regard it is said that the claim is one that is contrary to law because –

(a) The civil law is being utilised to enforce the criminal law in a situation where the remedy of prosecution for a crime may be best pursued for breaches of the criminal law;

(b) The applicant is not entitled to judgment "as it is not the law that ipso facto the owner of a motor vehicle is responsible for all injury or damage done by a driver who is alleged to have driven the motor vehicle in a negligent manner." 1 The respondent also states that in any event the respondent was not the owner of the vehicle at the time of the accident;

(c) The default judgment is that of negligence against the respondent when the evidence discloses that the negligent acts were committed by a person who is not a party to the proceedings;

(d) There is no allegation that the driver in question was the servant or agent of the respondent or that the respondent was using the vehicle for the respondent's purposes under delegation of task or duty;

(e) The applicant has a real prospect of successfully defending the claim;

(f) The applicant has applied as soon as practicable after finding out that the judgment had been entered;

(g) The applicant has given a good reason for the failure to file a defence; (h) It is just and equitable that the default judgment be set aside

BACKGROUND

2 As with most application of this sort, there is invariably an interesting history. The respondent is an elderly man and the owner of motor jeep registration number A34008. On July 25, 2011 he was driving his vehicle on Ffryes Hill Road, St. John's when a collision occurred with a vehicle driven by one Luis Hernandez. The vehicle driven by Mr. Hernandez bore the registration number A4436. The respondent sustained injuries caused by the impact of the crash;

3 On January 30, 2014 the respondent commenced the present claim not against Luis Hernandez but against Ed Meyer, the applicant herein. In the claim, Mr. Baynes contends that blame for the accident should fall at the feet of Mr. Meyer since at the time the latter was the owner of the vehicle driven by Mr. Hernandez and he was obliged at law to maintain valid insurance coverage thereon. In this regard, Mr. Meyer owed him a duty to ensure that the vehicle was driven with the necessary insurance coverage. His failure to so do made him responsible for the losses flowing from the vehicular collision. Mr. Baynes claims against Mr. Meyer for special damages in the sum of $86,389.53, general damages, costs and interest;

4 The claim and statement of claim were served on the applicant on February 4, 2014 and on the insurers on February 3, 2014. The applicant did not acknowledge service of the claim. It emerges from the evidence that at time of serving the claim, the respondent omitted service of the accompanying forms as stipulated by the rules. Amendments to the claim and statement of claim were filed on May 30, 2014. The amended pleadings along with the accompanying forms were served on the applicant and the insurers on June 2, 2014;

5 The applicant's acknowledgment of service to the amended pleadings was filed on June 10, 2014 in which he specifically denied liability and stated his intention to defend the claim. No defence was filed. The respondent applied for the default judgment on July 4, 2014 and was granted the same on even date. The affidavit of service filed by process server Eustace Gordon on August 15, 2014 states at paragraph 5 thereof that he attempted to serve the applicant with the default judgment on July 18, 2014. Mr. Meyer informed him that he would not accept service of the default judgment until he consulted with his lawyer. He asked Mr. Gordon to return with the document after he consulted his attorneys. There is no evidence of whether the said consultation occurred but the affidavit of service states that Mr. Gordon attempted to serve the applicant a second time. On August 4, 2014 he visited the applicant at his place of business and left the document on his desk. Mr. Gordon states the applicant is a person who is known to him. His evidence is that he informed the applicant of the nature of the document. He also reminded the applicant that on the previous attempt to serve him he indicated that he would accept service once he had consulted with the lawyers. Once again he refused service and as such the document was left on his desk;

6 The present application to set aside the default judgment was filed on October 3, 2014.

ARGUMENTS

Applicant

7 The grounds of the applicant's request have been set out above. In support of the argument that the civil court jurisdiction is being employed to enforce breaches of the common law, the claimant has asked the court to consider the dictum in the case of Bermuda Cablevision Ltd and others v Colica Trust Co. Ltd 2 where Lord Steyn helpfully recited the relevant legal principle that –

Their Lordships accept that it is a highly abnormal procedure to allow the civil law to be employed to enforce the criminal law. And there are good constitutional reasons for allowing only the Attorney-General to resort to such an unusual procedure. The criminal law is best enforced directly by courts of criminal jurisdiction, who have to try criminal cases in accordance with criminal procedure and in recognition of the protections afforded to a citizen by our system of criminal justice. Persons other than the Attorney-General do not therefore have standing to enforce, through a civil court, the observance of the criminal law as such…

His Lordship observed that the general principle "that where the only manner of enforcement created by a statute is the criminal law that performance cannot be enforced in any other manner" was only excepted

where upon the true construction of the legislation the prohibition was imposed for the protection of a particular class of individuals. The second exception is where the statute creates a public right and individual members of the public suffer "particular, direct, and substantial 'damage' other and different from that which was common to all the rest of the public." 3

8 In respect of the contention that the owner of a vehicle is not, without more, responsible for all the losses incurred by a claimant where the vehicle was driven in a negligent fashion by a third party, the applicant relies on the case of Morgans v Launchbury and Others 4 for the proposition that

in order to fix vicarious liability upon the owner of a car… it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty. The substitution for this clear conception of a vague test based on "interest" or "concern" has nothing in reason or authority to commend it. Every man who gives permission for the use of his chattel may be said to have an interest or concern in its being carefully used, and, in most cases if it is a car, to have an interest or concern in the safety of the driver, but it has never been held that mere permission is enough to establish vicarious liability… The owner ought to pay, it says, because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct. He ought not to pay (on accepted rules) if he has no control over the actor, has not authorised or requested the act, or if the actor is acting wholly for his own purposes.

9 In respect of whether he has applied as soon as reasonably practicable after finding out about the judgment, the applicant has not provided much by way of evidence as to what transpired after he was handed the default judgment. However, he does say at paragraph 10 of the affidavit in support of his application that he asked his son to deliver certain documents to Dr. Dorsett's office. His son did not fulfil his request as he fell ill shortly thereafter. The documents were only delivered to counsel's office on October 1, 2014. The application to set aside was filed thereafter on October 3, 2014. The applicant asks the court to attribute any delay in filing the application to a "combination of sickness and forgetfulness".

10 The reasons for failing to file a defence in a timely manner are more fulsome. The applicant explains that he was served with the claim on June 2, 2014 and he forwarded the same to his insurers, Bryson Insurance. Bryson Insurance referred the matter to Dr. Dorsett's office. A draft

defence was prepared by counsel's office and submitted to the insurers on July 1, 2014. The company sent the document to the applicant with instructions that he supply counsel's office with certain documents "pertaining to the legal status of The Sugar Mill Shop". The applicant states that he signed the draft defence and returned it to the insurers. The signed document was then referred to Dr. Dorsett's office. Dr. Dorsett requested immediately that the applicant attend his chambers to discuss the legal status of The Sugar Mill Shop. The applicant's evidence is that all of this transpired by July 4, 2014.

11 The applicant did not attend counsel's chambers as...