James H. Herbert Claimant v Nelisa Spencer Defdendant
| Jurisdiction | Antigua and Barbuda |
| Judge | Glasgow, M |
| Judgment Date | 26 January 2016 |
| Judgment citation (vLex) | [2016] ECSC J0126-1 |
| Court | High Court (Antigua) |
| Docket Number | Claim Number: ANUHCV 2014/0391 |
| Date | 26 January 2016 |
EASTERN CARIBBEAN SUPREME COURT
Claim Number: ANUHCV 2014/0391
On July 24, 2011 the claimant (hereinafter the respondent) was driving his vehicle along the Sir George Walter Highway when a collision occurred with the vehicle driven by the defendant (hereinafter the applicant). The respondent's vehicle was damaged and he was injured. Discussions ensued between the applicant's insurance company and the respondent with a view to settling damages to be paid to the respondent for his losses to person and property. The negotiating sides reached consensus in December 2011on the sum to be paid for the damage to the respondent's vehicle and the applicant's insurance company paid the respondent the sums agreed. There seems to be no progress after December 2011 regarding the quantum of damages to be paid for the respondent's injuries. Accordingly, the respondent filed the claim herein on July 15, 2014 seeking special and general damages for his losses.
On January 8, 2015 the respondent applied to this court pursuant to CPR 8.13 for an order extending the time for service of the claim form by a period of 6 months. The respondent apparently had CPR 8.12 in mind on making this application since that rule requires the claim formto be served within 6 months after the date it was issued1. The application was supported by an affidavit sworn by the respondent. The affidavit indicated that since filing the claim, the respondent sought to trace the applicant to effect service of the same on her. His several unsuccessful efforts included contacting the applicant's relatives and a former employer. He went to say that he engaged the applicant's insurance company to ascertain her whereabouts but to no avail. The respondent exhibited a letter dated October 24, 2015 received from the law firm of Hill and Hill which advised that the firm represented the applicant. The letter further informed the respondent that the applicant was interested in "settling this matter amicably". The application was heard and granted on February 3, 2015. The court produced and approved a draft order which was handed to counsel for the respondent to settle.
Khalid Shabazz, process server swears an affidavit of service on May 26, 2015 to the effect that the applicant was served on May 20, 2015 with the claim form, notice of application requesting the extension of time to serve the claim form, the respondent's affidavit and a draft order.2 Mr. Shabazz would state in a later affidavit filed on November 26, 2015 that at the time of serving the applicant with the claim form he also served the "notes". I assume that the "notes" refer to the forms which ought to accompany a claim form when it is being served. Indeed Mr. Shabazz depones that he always ensured that "the appropriate forms and documents to be served are enclosed"3 when he seeks to execute his duties as a process server.
No acknowledgment of service having been filed after service of the claim, the respondent applied for and obtained judgment in default of acknowledgment of service on June 10, 2015. The respondent applied for an assessment of damages on September 18, 2015. Submissions in support of the assessment were also appended to the application. In addition to the application for damages to be assessed, the respondent applied for an order for service of the default judgment, the application, affidavit and submissions in support of the assessment of damages by an alternative method of service. The application for service by an alternative method was granted and it was ordered that the applicant may be served with the said documents by leaving them at her usual or last known place of residence and by publication in 2 local newspapers in Antigua and Barbuda.
An affidavit of service filed by Troy Jarvis on November 9, 2015 disclosed that the applicant was served personally with the default judgment and documents in support of the assessment of damages on October 19, 2015. The applicant insists that she was in fact served with these documents on October 16, 2015 which was also the first time that she received the sealed order of the court extending the time for serving the claim form. On October 19, 2015 the applicant filed 2
applications seeking (1) an order setting aside the extension of time within which the claim form may be served; and (2) an order setting aside the default judgment.In her grounds for making this application, the applicant relies on CPR 8.13(5) which outlines the steps to be taken after an order is made to extend the time to serve a claim form.
The applicant complains that the claim form which was served has no validity since it bore no stamp showing the period for which its validity was extended ( CPR8.13(5). Additionally, the respondent did not serve a claim from endorsed with the notice stating that the claim form is of no validity if it is not served within 6 months of the date of issue. The claim form in this case being thus deficient was "dead" for failing to include these formalities. In fact, the applicant's position is that there could not be a response to the claim since no valid claim was in effect at the time that it was served on her.
Compounding matters for the applicant was the fact that she was not served with a sealed copy of the order of the court as required by CPR 8.13(5). She received the draft order produced with the master's signature. The applicant opines that the service of a draft order rather than a sealed copy further demonstrates the respondent's lack of compliance with the mandatory conditions of the rule in question. It is argued for the applicant that the sanction for noncompliance with the mandatory provisions of CPR 8.13(5) is quite evident; the respondent's failure to follow the requirements of the rules meant that the claim "reverts to its status quo and there is no validity, the Claim Form will have died its natural death."4 The applicant submits that, for these reasons, a valid claim was not served. A valid claim must have been served in order for a default judgment to be granted pursuant to CPR 12.4. The respondent's lack of compliance in this regard obligates the court to set aside the default judgment pursuant to CPR 13.2.
12.4 The court office at the request of the claimant must enter judgment for failure to file an acknowledgment of service if—
(a) the claimant proves service of the claim form and statement of claim;
(b) the defendant has not filed—
(i) an acknowledgment of service; or
(ii) a defence to the claim or any part of it;
(c) the defendant has not satisfied in full the claim on which the claimant seeks judgment;
(d) the only claim is for a specified sum of money, apart from costs and interest, and the defendant has not filed an admission of liability to pay all of the money claimed together with a request for time to pay it;
(e) the period for filing an acknowledgment of service under rule 9.3 has expired; and
(f) (if necessary) the claimant has the permission of the court to enter judgment.
13.2 (1) The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because in the case of—
(a) a failure to file an acknowledgment of service — any of the conditions in rule 12.4 was not satisfied; or
(b) judgment for failure to defend — any of the conditions in rule 12.5 was not satisfied. (2) The court may set aside judgment under this rule on or without an application.
The applicant relies on CPR 8.13( 4) and 11.16(1) in support of the relief sought on this application. Where a claimant seeks an order extending the time for serving the claim form, CPR 8.13(4) outlines the conditions which must be satisfied before an order is made granting the request. The court may only make an order where it is satisfied that the claimant took all reasonable steps to trace the defendant and serve the claim form but has been unable to do so or there is some other special reason for extending the period to serve the claim form. The contention here is that the evidence on the respondent's affidavit in support of the request is meagre and"woefully below what is sufficient to establish that he had taken not just some steps but all reasonable steps to both trace and serve the Defendant.5" It is said that meagre evidence will not suffice6 and the weaker the reason for not serving the claim before its validity ends, the more likely that the court will refuse an order extending the time to serve7. The applicant's view is that the respondent ought to have given greater details of his efforts to locate the applicant including giving the names of the persons claimed to be the applicant's relatives and the former employer whom he sought to serve with the claim form.
The court's attention was drawn to the fact that the applicant is an attorney at law who is known to the respondent. The applicant states that the respondent is aware of her email address which is available not only to the respondent but to the registrar of the court and the bar association. In fact the respondent's previous attorney was on an email thread with the applicant just mere months before the proceedings were issued. The respondent was therefore aware that the applicant could be reached by email but failed to disclose this fact to the court at the time of the application. Having
failed to utilize this method of tracing the defendant, the application was not properly made and granted. It should therefore be set aside. There is also no reason why the...To continue reading
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