Louise Martin (as Widow and executrix of The Estate of Alexis Martin, deceased) Claimant/Respondent v Antigua Commercial Bank Defendant/Applicant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Thomas J
• Judgment Date: 13 August 2007
• Judgment citation (vLex): [2007] ECSC J0813-1
• Docket Number: CLAIM NO: ANUHCV 1997/0115
• Date: 13 August 2007

[2007] ECSC J0813-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO: ANUHCV 1997/0115

Between:

Louise Martin

(As Widow and executrix of The Estate of Alexis Martin, deceased)

Claimant/Respondent

and

Antigua Commercial Bank

Defendant/Applicant

Appearances:

Messers E. Ann Henry, C. Debra Burnette and Jasmine Wade of Henry & Burnette for the Claimant/Respondent

Ms. Tracy Benn of Roberts & Co for the Defendant/Applicant

Civil Procedure Rules 2000 (CPR 2000) — Application to set aside judgment obtained in default of defence — Whether application accords with Part 13.3 of CPR 2000 — Good explanation for failure to file defence — Real prospect of successfully defending the claim.

RULING

Thomas J

1 This is an application by the Applicant/Defendant seeking to have a judgment in default of defence dated 8 ^th January 2007 set aside. The Application is supported by an affidavit sworn to by Alincia Grant, Legal Counsel/Corporate Secretary of the Applicant/Defendant.

SUBMISSIONS

2 By order of this Court both sides filed written submissions. The following constitutes the main submissions tendered on behalf of the Defendant/Applicant.

1

The setting aside of a default judgment is governed by Part 13 of CPR 2000 under which a judgment may be set aside only if the Defendant (a) applies to the Court as soon as reasonably practicable after finding out that judgment had been entered; (b) gives a good explanation for the failure to file a defence; (c) has a real prospect of successfully defending the claim. 2. The judgment in default of defence is irregular in that it is not in accordance with Part 12.10 (4) of CPR. There should have been an application to the Court to determine the terms of the judgment under paragraph 4 and not a request for judgment in default of defence since the claim is for some other remedy other than a specified sum, see Parts 12.10 (4) and (5). 3. Reliance is placed on the decision of this Court in DSS Company Limited et al v Allied Hotels and Resorts (Claim No. ANUHCV 2005/0059) where the facts are similar and the default judgment was set aside. 4. Part 73 of CPR 2000 appeared not to be satisfied. In accordance with Part 73.3 (3) in order for there to be a transition between the old and the new rules, the Court Office must fix a date, time and place for a case management conference under Part 27 after a defence had been filed.

3 The following are the main submissions on behalf of the Claimant/Respondent:

1

The governing provisions for setting aside an irregularly obtained judgment in default are to be found in Part 13 of CPR 2000 of which rule 13.2 (1) (b) is the operative provision. This provision must be read together with Part 12 r. 5. 2. The defence advanced by the Defendant/Applicant does not raise to the level of having a real prospect of success but is rather fanciful—Swain v Hillman and another[2001] 1 All ER 91. 3. The failings of the Applicant cannot be saved by the overriding objective provisions in CPR 2000, see Brathwaite Henderson v Potter & Potter Civil Appeal No. 18 of 2002. 4. It is submitted that the Court in applying the strict provisions of Part 13.3 cannot look to the overriding objective to assist a party in succeeding in an application which is doomed under other parts of the Rules and accordingly without merit and in effect seeks to retain the administration of justice. 5. It is submitted that the application must be dismissed with costs to the Respondent in the sum of $5,000.00.

ANALYSIS

4 The analysis of the submissions will follow the path of Part 13 of CPR 2000 and Part 73 (3) of CPR 2000.

PART 13 OF CPR 2000

5 The powers of the Court to set aside or vary a default judgment are set out in Rule 13.3 of CPR 2000. Its contents are in these terms:

"13.3 (1) If rule 13.2 does not apply, the Court may set aside a judgment entered under Part 12 only if the defendant—

• (a) applies to the court as soon as reasonably practicable after finding out that judgment had been entered;

• (b) gives a good explanation for the failure to file an acknowledgment of service or a defence, as the case may be; and

• (c) has a real prospect of successfully defending the claim".

6 The first observation, which is now well settled, is that the constituents of Rule 13.3 are conjunctive.

RULE 13.3 (1) (a)

[A]pplies to the court as soon as reasonably practicable after finding out that judgment had been entered.

7 With respect to this requirement, the Defendant/Applicant contends that an Application, Affidavit in Support (with Draft Defence and Counterclaim attached) and Draft Order to set aside judgment in Default of Defence on 6 ^th February 2007 after being served on 22 ^nd February 2007 with the Judgment in Default of Defence.

8 With respect to r. 13.3 (1) (a) the Claimant/Applicant says that: there is no specific time period given in the rules. Reasonableness, therefore deposes on the facts of the case. The facts of this case are that the matter was in train since 1997 when a Writ of Summons, indorsed with a Statement of Claim was filed and served. These facts place the issue in perspective as the Applicant was not caught by snap of justice. It is further submitted by the Claimant/Applicant that at this stage it was the duty of the Applicant to move with haste to file its defence so as to avoid entry of judgment against it.

9 There need not be much debate on this issue since the evidence reveals that a period of fifteen days elapsed between being served with the judgment and the filing of the application to set it aside. The Court considers this to be 'as soon as reasonably practicable' for the purposes of rule 13.3 (1) (a) of CPR 2000.

RULE 13.3 (1) (b)

[G]ives a good explanation for the failure to file a defence.

10 The reasons advanced by the Defendant/Applicant for the failure to file and serve a defence are as follows:

1

First, after the Claimant filed the 'Amended Claim Form, it had been involved in the interlocutory proceedings which led to the dismissal of the claim in the High Court on 14th day of April 2003. There was no requirement to file and serve a defence during that period or thereafter. 2. Shortly thereafter, the Claimant filed a Notice of Appeal against the judgment of the High Court on 22nd day of April 2003. The appeal was not heard until 23rd day of November 2006. During that time the case stood dismissed and therefore there was no reason or requirement to file a defence.

11 On behalf of the Claimant/Respondent the following are the submissions:

" 3. The operative provision is to be found in rule 13.2 (1) (b) of CPR 2000.

4. The provisions in Part 13 r. 2 (1) (b) should be read together with Part 12–r. 5.

5. Part 12 r. 5 outlines the conditions to be satisfied in order for the judgment to be entered for failure to file a defence. The provision is unambiguous and on any application for judgment in default of defence, the requirements are that:

• (i) the Claimant must prove service of the Claim Form and Statement of Claim;

• (ii) the Defendant must not file an Acknowledgment of Service, or

• (iii) the period for filing a Defence must have expired.

6. The above requirements indicate the limited circumstances in which a court is restricted to say that default judgment was 'wrongly entered'. It is submitted that the question is one of fact.

7. In the affidavit in support of the Request for Judgment filed on the 8 ^th January 2007, at paragraph (6), the Respondent deposed that she served her Amended Statement of Claim on the Defendant on the 19 ^th December, 2001. At paragraph (7) of the said affidavit the Respondent deposed that no defence was filed by the Applicant, even as late as November, 2002. The Writ of Summons with Statement of Claim was filed and served since April 1997.

8. It follows that on the strength of the evidence, the Claimant/Respondent has met the threshold requirement to have a default judgment entered in her favour. In that respect the Respondent submits that the first and second grounds of the Applicants application must fail as a matter of law and fact.

15. In its affidavit in support of its application filed 6 ^th February, 2007 the Applicant admits that the judgment in default of Defence was served on the 22 ^nd January 2007 and the present application is made on the 6 ^th February, 2007. At paragraph (6) of the affidavit the applicant deposes that its failure to file a defence was on account of it been involved in interlocutory proceedings including the hearing of the appeal in November 2006.

16. It is the Claimant/Respondent's submission that even at the stage of the interlocutory proceedings, the Applicant was out of time and made no attempts to file an application for an extension of time. It is further submitted that once the Court of Appeal ruled in favour of the Appellant/Respondent, the matter automatically was reinstated as the decision of the learned trial judge was quashed and the application of the Defendant/Applicant was dismissed."

12 It is the Court's view that the Defendant/Applicant's submissions have not addressed the legal consequences of its failure to file a defence prior to the date of the application to have the claim struck out. In this context certain dates are both significant and critical:

1

The Claimants' action was commenced on 9th April 1997. 2. An Amended Claim Form was filed and served on 19th December 2001. 3. On 19th November 2002 application was filed on behalf of the Claimant for Judgment in default of Defence. 4. Application seeking to strike out the claim was filed on 16th December 2002. 5. The Application was heard on 4th April 2003 and the decision granting the reliefs sought by the Applicant/Defendant was delivered on 14th April 2003. The Court granted the reliefs as prayed which meant that as of 14th April 2003 the Claimants' claim was nugatory. 6. By notice of...