Knight v United Security Ltd

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop, J.
• Judgment Date: 16 April 1980
• Neutral Citation: AG 1980 HC 11
• Docket Number: 132 of 1978
• Date: 16 April 1980

High Court

Bishop, J.

132 of 1978

Knight

and

United Security Limited

Appearances:

Gerald A. Watt for plaintiff.

Frederick E. Kelsick for defendant.

Practice and procedure - Setting aside — Defendant sought order that service of writ on him was irregular and insufficient and order that judgment entered in default of appearance be set aside — Whether defendants had a good defence — Default judgment set aside.

Bishop, J.

1 The summons with which I am concerned was filed on the 29th March last year by the solicitor for the defendant. In it, the defendant, United Security Limited, has sought

(An order that the pretended service of the writ summons herein on the said defendant was irregular and insufficient and the defendant was not bound to appear thereto and in addition or in the alternative for an order that the judgment entered in this action against the defendant on the 14th day of July, 1978, in default of its appearance therein may be set aside and that the defendant may be at liberty to appear and defend this action and that the costs of this application may be provided.”

2 Two affidavits were filed in support of the summons. One was sworn to by Frederick Edgar Kelsick the solicitor for the defendant in action, and the other was sworn to by Willis Daniel, branch manager of the defendants company's business in Antigua.

3 Mr. Kelsick also appeared before me at the hearing of the summons and put the case for the defendant company (applicant). Because of this I am reminded of the judgments of Lewis, C.J. in Casimir v. Shillingford & Pinard (in the court of appeal of the West Indies Associated States Supreme Court, sitting in Dominica on the 14th June, 1967) and in Murry v. Jacobs (in the same court sitting in Antigua on the 21st June, 1967). I shall quote from the latter judgment:

“Learned counsel who appears for the applicant has herself sworn an affidavit… in her capacity as a solicitor…. The court has intimated that this unfortunate practice which has grown up of members of the bar swearing affidavits as to facts in causes before the court and then appearing as counsel in the same cause, is one that should be stopped. The reason is, that where the acceptability or otherwise of an affidavit is a matter which the court has to determine, it is not proper, and is embarassing to the court, that it should be placed in a position of having to decide whether an affidavit sworn by counsel who appears…. is or is not acceptable. Counsel by swearing an affidavit as to facts material to a cause makes himself a witness in the cause and ought not at the same time make himself a witness in the cause and ought not as the same time to appear as a counsel. Therefore it is hoped that this practice will be discontinued.”

4 That hope of more than twelve years ago has not yet been entirely fulfilled. What are the facts which led to the judgment, which according to the summons, was entered on the 14th day of July, 1978?

5 The record shows that on the 29th June, 1978 at 11:30 a.m. the solicitor for the plaintiff filed a writ of summons and under the heading “statement of claim” it read

“The plaintiff's claim is for wrongful dismissal from the defendant company's employ, as manager of the Antigua branch of the defendant company and which said dismissal occurred on the 27th September, 1977. Further and in the alternative the plaintiff claims damages for breach of a management contract made between the plaintiff and the defendant company on the 14th August, 1976.”

6 A carbon copy of the writ was also filed on the 29th June, 1978 at 11:30 a.m. and it was this carbon copy which bore aback of it the following statement: “This writ was served by me at Long Street on the defendant United Security Ltd by handing to Mrs. Fostina Gilead secretary, a true copy of the writ on Thursday the 6th day of July, 1978”

7 Then the carbon copy carried the clear indication as to the date of the indorsement and the person indorsing it. It showed:

“Indorsed the 6th day of July 1978

G.E. Georges.”

8 Learned counsel for the applicant contended that the original writ summons ought to have been indorsed and not a carbon copy of it. In my view, the better, if not the proper practice, would certainly have been to indorse the original writ; but to procedure of indicating on a carbon copy of it that the writ had come to the notice of the defendant named therein, was not fatal to the action so commenced.

9 On the 14th July, 1978 the plaintiff's solicitor entered interlocutory judgment based upon the default of appearance by the defendant company; and on the 25th September, 1978, he filed a summons, supported by an affidavit of the plaintiff, seeking an order that final judgment be determined by a judge in chambers. Clearly when interlocutory judgment was entered the affidavit of Fitzroy Knight was not being relied upon but learned counsel referred to it at this hearing before me as it contained facts pertaining to the service of the writ of summons. When interlocutory judgment was entered, the plaintiff's solicitor relied on the indorsement of 6th July, 1978, which I have already quoted, and upon an affidavit of Edime Georges a bailiff of the high court of justice, sworn to on the said 14th July 1978, and which stated inter alia:

• “2. On Thursday 6th day of July 1978, I did personally serve the defendant company with the writ of summons in the above action….. No 132 of 1978.

• 3. I effected service by servicing Mrs. Fostina Gilead the secretary at the United Security Limited who accepted service on behalf of the said company.”

10 There was no ambiguity or unexplained statement in the writ server's affidavit. On the 14th July, 1978 he was repeating on oath what he had stated on the 6th July, 1978. He was asserting (a) that he served the secretary of the company and (b) that the secretary accepted service on behalf of the company. He later contradicted this statement of service, and in an affidavit filed in April 1969, the plaintiff also stated what must be a contradictory method of service. I shall come to that later.

11 Now apart from the indorsement of 6th July, 1978, and the affidavit of 14th July, 1978, there was the affidavit filed in support of the summons seeking final judgment and dated 25th September, 1978. Although it was filed following the entry of interlocutory judgment nevertheless reference to it is not without significance with respect to the manner of service. It was the affidavit of the plaintiff in which he deposed thus:

• “(2). The writ in this action was served on the defendant company at the company's office at Long Street St. John's by Edmead Georges, bailiff of the high court who served the said writ on Fostina Gilead, secretary and servant or agent of the said company”

12 Here the plaintiff introduced other capacities than secretary but the writ server never claimed service on Fostina Gilead in the capacity of either servant or agent.

13 The service of the writ summons has been called into dispute and it becomes necessary to look at Order 10, r.1(4) of R.S.C., 1970 and at some of the provisions of the insurance ordinance 1967. The former, paragraph (4), reads thus:

• “(4) where a writ is duly served on a defendant otherwise than by virtue of paragraph ( 2) or (3), then subject to Order 11, rule 5, unless within three days after service the person serving it indorses on it the following particulars, that is to say, the 5th day of the week and date on which it was served, the person of whom it was served, and where he is not the defendant the capacity in which he was served, the plaintiff in the action begun by the writ shall not be entitled to enter final or interlocutory judgment against the defendant in default of appearance or in default of defence.”

14 The paragraph emphasises the indorsement on the writ and the particulars which must be stated if the plaintiff is not to be denied entry of interlocutory judgment.

15 In the action commenced by writ of summons filed on 29th June, 1978, the defendant was named as “United Security Limited of Long Street, St. John's”. The claim on the writ set out that the plaintiff was manager of the Antigua branch of the defendant company, and it is undenied, I think, that the company involved in the action was, at the material time, a company that was governed by the insurance ordinance 1967.

16 Certainly the indorsement as it stood set out particulars, and certainly the plaintiff's solicitor relied upon what was set out in the indorsement. There was the unequivocal assertion that the person named enjoyed the capacity stated; and this was later repeated more than...