DECISION
Introduction
[1] This ruling relates to a Summons filed in July 2011 by virtue of which the Defendant herein applied to the Court “for an Order that the judgment entered in default of defence on the 11th day of May, 2009 be set aside on the ground that the Defendant has a good Defence to this action and that the Defendant be at liberty to defend the action by filing a Defence herein”.
[2] The substantive action was filed by way of Writ of Summons on July 8th 2008 and is in essence an action for possession of a parcel of land and the chattel dwelling house thereon situate at Gunsite Road Brittons Hill St. Michael.
[3] The Plaintiff is an elderly lady who has, by power of attorney, authorized her grand-daughter, Cheryl Stoute to, inter alia, “take possession of any real or personal estate of which she was seised or entitled to, for any estate or interest whatsoever…”.
[4] The Plaintiff is the beneficial owner of the chattel house and land on which the Defendant (another grand-daughter) now resides at Gunsite Road and has through her attorney served the Defendant with a formal Notice to Quit to deliver up possession of the subject property at Gunsite Road by June 30th 2007.
[5] The above-mentioned Writ was filed as result of the Defendant’s refusal to do so.
The Law
[6] The wording used by the Defendant/Applicant in the Summons of 2011 is the wording of the Rules of the Supreme Court 1982. The relevant provision is that to be found in the Supreme Court (Civil Procedure) Rules 2008, which came into effect on October 1st 2009.
[7] Part 13.3 (which speaks to this issue) states as follows:
“ 13.3 (1) The court may set aside or vary a judgment entered under Part 12 if the defendant has a real prospect of successfully defending the claim.
(2) In considering whether to set aside or vary a judgment under this rule, the court must consider whether the defendant has
(a) applied to the court as soon as reasonably practicable after finding out that judgment had been entered; and
(b) given a good explanation for the failure to file an acknowledgment of service or a defence as the case may be.”
[8] Blackstone’s Civil Practice 2011 posits that the “real prospect of defending the claim test’ in the English CPR “mirrors the test established in Alpine Bulk Transport Co Inc. v Saudi Eagle Shipping Co. Inc. (The Saudi Eagle) [1986] 2 Lloyd’s Rep 221, (this case together with Evans v Bartlam [1937] AC473] has been used locally as strong legal precedent in this jurisdiction for applications to set aside default judgments) that the defendant must have a case with a reasonable prospect of success, and it is not enough to show a merely arguable defence. See also Clarke v Hinds et al BB2004 CA 15 (Civil Appeal No. 20 of 2003 (decision of June 4th, 2004); Bank of Nova Scotia v Emile Elias & Co. Ltd (1995) 46 WIR 33; Nilsa Colmenares v Clarence Fields Suit No. 208 of 1998, an unreported decision of the High Court delivered October 21st, 2005.
[9] At para 20.13, a most useful reference is made to the test/principles adopted by the English Court of Appeal in Thorn plc v Macdonald [1999] CPLR 660 as follows:
“ (a) while the length of any delay by the defendant must be taken into account, any pre-action delay is irrelevant;
(b) any failure by the defendant to provide a good explanation for the delay is a factor to be taken into account, but is not always a reason to refuse to set aside;
(c) the primary considerations are whether there is a defence with a real prospect of success, and that justice should be done; and
(d) prejudice (or the absence of it) to the claimant also has to be taken into account.”
[10] Of interest is Barrow JA’s discussion of these principles in the case of Kenrick Thomas v RBTT Bank Caribbean Limited Civil Appeal No.3 of 2005, an unreported decision of the OECS Court of Appeal, given October 15th, 2005 where he distinguishes the OECS provision from that of the English CPR. It is noted that the Barbados provision is similar to the UK provision and quite unlike the OECS provision which Barrow JA states specifies three conjunctive pre-conditions for setting aside. He states as follows at paragraph [7] of this judgment:
“[7] … The difference between the English equivalent and the provision in CPR 2000 lies in the discretion. The discretion in the English CPR is Rule 13.3 is significantly unlimited; it specifies only one matter to which the Court must have regard and does not even make fulfilment of that matter a condition that the defendant must satisfy. In contrast, the discretion in CPR 2000 is severely limited; it specifies three conditions that the defendant must satisfy before the court is permitted to set aside a default judgment.”
[11] Di Mambro in his text The Caribbean Civil Court Practice 2011, while observing the differences of wording in the practice Rules of the various Caribbean jurisdictions, nonetheless makes this observation at page 141:
“In all jurisdictions, it is submitted, it is essential that the defendant produce to the court some material explaining the reason for the failure to file a defence and, moreover, demonstrating that the defendant acted promptly once aware of the judgment: Nizamodeen Shah v Lennox Barrow (Civil Appeal 209 of 2008 of T&T)
[12] Blackstone’s Civil Practice 2011 states further at para. 20.13:
“Although promptness may not be the controlling factor in the success or otherwise of an application under r. 13.3, it is a very important factor, and can justify a court refusing to set aside a default judgment even where a defendant has a defence with a real prospect of success: Standard Bank plc v Agrinvest International Inc [2009] EWHC 1692 (Comm)
[13] The approach to the determination of whether the Defendant has a real prospect of successfully defending the claim is to be found in the seminal case of Three Rivers District Council v Bank of England No. 3 [2001] 2 All ER 513 HL (a summary judgment application) where Lord Hope stated as follows:
“… [94] … the question… whether the claim has no real prospect of succeeding at trial… has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is- what is the scope of that inquiry?
[95] I would approach the further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of (disclosure and requests for information) have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well recognized exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases, it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini trial on the documents without disclosure and without oral evidence… that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”
The Defendant’s Submissions
[14] Counsel for the Defendant conceded that the judgment of May 2009 had been entered regularly, but she argued, pursuant to the authority of Evans v Bartlam (supra) that the Defendant had ‘an arguable defence’. (reference also made to Kirk v Eustace [1937] 1 KB 278; Bank of Nova Scotia v Emile Elias & Co Ltd (Supra); [Alpine Bulk Transport Co. Inc v Saudi Eagle Shipping Co. Inc (The “Saudi Eagle”) (supra).
[15] It was her submission that the Court should in this exercise take into account two factors: namely, whether there is a meritorious defence and secondly, how the Defendant found herself bound by the default judgment and the time frame of the delay.
A Meritorius Defence
[16] Counsel submits that if the Court reads the Affidavits of July 13th, 2011 and July 3rd 2012, it is clear that the Defendant has a meritorious defence. This defence appears to be that these Affidavits show that the Defendant’s occupation of the house was authorized by the Urban Development Corporation (UDC). She submits that there is a solid ground of defence against possession and payment of rent.
The Defendant’s Explanation of the Delay
[17] The Defendant argues that both parties are guilty of delay, but in large measure the delay was caused by the fact that there was some process of negotiation between the parties after the filing of the action. Although counsel in this application was not the same counsel throughout, she argued that a reading of the file shows an exchange of letters between the parties’ counsel. (It was drawn to counsel’s attention that this correspondence was not before the Court and thus she was not in a position to make a submission about this alleged correspondence and their time frame)
[18] She submitted that this matter needs to have a full hearing: if this administrative judgment is allowed to stand it would not provide a result that does justice between the parties; if this judgment is not set aside there would be a miscarriage of justice. She maintains that there is an issue to be tried between the parties and the UDC and that her client has shown enough of a defence for this matter to go to trial.
[19] In her reply to the Plaintiff’s submission counsel made it clear that her client is making no claim to the land; that her claim relates only to the dwelling house and in that regard, her claim appears to be that she has a right to joint occupation of the house with the Plaintiff consequent on the authority to so do given by the UDC.
The Plaintiff’s Submissions
[20] It was clear from the Plaintiff’s submissions that the parties were not in dispute over the law to be applied. (See Defendant’s reference to Whitebook 1998 13/9/5 headed Regular Judgment).
[21] Counsel was quite extensive in her analysis of the delay starting with the acknowledgement of service. While the Court has taken this into account, it has however determined that the more critical time period in these circumstances is the time period AFTER the existence of the default judgment had been brought to the attention of the Defendant.
[22] She argues that nothing took place from 2008 when the Writ was filed and May 2009 when the Default Judgment was entered. There was no correspondence between the date of the Acknowledgement of Service and the obtaining of the Default Judgment, other than the Defendant’s attorney’s response that she would not be leaving the premises.
[23] It was her submission that the parties were in contact: the Defendant remained in possession in spite of the Default judgment in May 2009 and as a result the Plaintiff made a formal demand to vacate in May 2010. This, she submits was the extent of the so-called negotiations.
[24] The Application to set aside was made two years after the judgment was obtained.
[25] On the issue of meritorious defence, counsel referred to the Defendant’s Affidavit of July 2012 which when analysed against the backdrop of the Affidavit of Cheryl Stoute of September 27th 2011, the Affidavit of
Merlene Green of September 27th 2011 and Affidavit of Cheryl Stoute of March 21st 2013, causes the Defendant’s Defence to crumble.
[26] This is an action for possession, but the Defendant’s Defence is not one for possession, but rather an argument in support of joint occupation of the house. Counsel argues that the Defendant’s claim falls apart at paragraph 5 of the Draft Defence.
Disposal
[27] The Defendant’s Affidavit of July 13th 2011 shows that the delay in filing a Defence was deliberate. She states at paragraph 17 thereof:
“17. That I did not file a defence because the Plaintiff did not have a superior title to mine.”
[28] Her answer to the Writ was to get a letter dated December 12th 2008 from the UDC stating that she was a legal resident of the house along with her grandmother.
[29] The Defendant’s draft Defence being predicated on the admitted erroneous act of the UDC (see letter dated May 29th 2012 UDC to Doris Stoute) does not display a Defence with a real prospect of success, it merely displays an arguable defence, which the authorities cited by counsel for the Defendant (Evans v Bartlam and others supra) indicate is insufficient. The Defendant’s Affidavit reveals an issue between the UDC and herself. This is not a defence to the Plaintiff’s claim as the ownership of the chattel dwelling house by the Plaintiff is not in dispute. The Defendant’s Affidavit reveals no claim to an equitable interest in the property, rather the acknowledgment of a licence which has been revoked.
[30] In view of the foregoing, the Defendant’s Application to set aside is dismissed with costs to the Plaintiff to be agreed or assessed.
Margaret A. Reifer
Judge of the High Court
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