Sandra George v Clement Samuel and Megan Samuel-fields (as Executors and Trustees of the Estate of Charlesworth Samuel, Deceased, Who was Executor of the Estate of Kathleen Spencer, Deceased)

• Jurisdiction: Antigua and Barbuda
• Judge: MICHEL, J.
• Judgment Date: 13 December 2010
• Judgment citation (vLex): [2010] ECSC J1213-3
• Court: High Court (Antigua)
• Date: 13 December 2010
• Docket Number: CLAIM NO: ANUHCV 2004/0293

[2010] ECSC J1213-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV 2004/0293

Between:

Sandra George

Claimant

and

Clement Samuel And Megan Samuel-fields (as Executors and Trustees of the Estate of Charlesworth Samuel, Deceased, Who was Executor of the Estate of Kathleen Spencer, Deceased)

Defendants

Appearances:

Ms. Kathleen Bennett for the Claimant

Ms. Megan Samuel-Fields for the Defendants

MICHEL, J.

1 By Notice of Application filed on 18^th August 2010 the Defendants, Clement Samuel and Megan-Samuel-Fields, applied to the Court for an order that the Default Judgment filed in this case on [12^th] April 2010 be set aside and that the Defendants be at liberty to file a defence to the Claimant's claim within seven days.

2 By Affidavit in Reply filed on 14^th October 2010 on behalf of the Claimant, Sandra George, the Claimant challenged the Defendants' entitlement to have the Default Judgment set aside on the basis that the Default Judgment was regularly obtained and the Defendants have failed to satisfy the conjunctive requirements of Rule 13,3 (1) of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (the CPR).

3 The matter came before the Court on 15^th October 2010 whereupon application was made viva voce on behalf of the Defendants for leave to file a draft defence and to respond to the Affidavit in Reply filed on behalf of the Claimant the previous day. The Defendants had not exhibited with their affidavit in support of the application to set aside the Default Judgment a draft of their proposed defence, as is required by Rule 13.4 (3) of the CPR. The application for leave to file the draft defence was opposed by Counsel for the Claimant.

4 The Court directed both parties to file written submissions on the Defendants' application to be given leave to file a draft defence to append to his application to set aside the Default Judgment and addressing as well the Defendants' application to set aside the Default Judgment. Hearing of the applications was set for 11^th November 2010,

5 On 29^th October 2010 written submissions were filed on behalf of the Defendants in support of their applications and the case of Marble Point Energy Ltd. v Multiperils International Inc.1 was cited as a judicial authority in support of the submissions. On 9^th November 2010 a written submission was filed on behalf of the Claimant, opposing the Defendants' applications, and the cases of Kenrick Thomas v RBTT Bank Caribbean Limited2 and Sven Frisell v Hodges Bay Estate Ltd3 were cited as judicial authorities.

6 At the hearing of the applications on 11^th November 2010 Counsel on behalf of both the Claimant and the Defendants indicated that the parties would rely on their written submissions. Counsel for the Claimant was asked by the Court why there were two

judgments in default of acknowledgement of service in the same case, to which she responded that there was nothing in the rules which prohibits this and that the Claimant had satisfied the conditions of Rule 12.4 of the CPR.

7 Having...