Susan Jeremiah-Alexander v Felix Alexander Joel John (Trading as “Captivative Solutions”)
| Jurisdiction | Trinidad & Tobago |
| Judgment Date | 24 June 2022 |
| Neutral Citation | TT 2022 HC 145 |
| Docket Number | Claim No: CV2017-04122 |
| Court | High Court (Trinidad and Tobago) |
the Honourable Mr. Justice Robin N. Mohammed
Claim No: CV2017-04122
REPUBLIC OF TRINIDAD AND TOBAGO
Vishnu Bridgemohan instructed by the firm of Dipnarine Rampersad & Co for the Claimants Angela Mohammed for the Defendant
By Notice of Application supported by an affidavit of Joel John filed on the 8 th January 2020, the Defendant pursuant to R ule 13.3 (1) (a) and (b) of the Civil Proceedings Rules 1998, as amended [hereinafter referred to as “CPR”], applied to the Court for an Order seeking the following reliefs: inter alia
a. That the date set for the hearing of Judgment Summons filed on 10 th April 2019 together with an affidavit in support dated 10 th January 2019 be vacated.
b. That the Judgment in Default of Appearance made against the Defendant dated 16 th July 2018 be set aside.
c. That the Claimants do serve the Defendant with the claim form and statement of case together with all documents relative to the subject action by a specified date to be determined by the Honourable Court.
d. That the Defendant do file and serve his defence by a specified date to be determined by the Honourable Court.
e. Costs to be awarded if deemed appropriate; alternatively, no order as to costs.
f. Any other order applicable in these circumstances.
The Claimants resisted the application.
The relevant procedural history of this matter is as follows:
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a. By letter dated the 17 th February 2013, the Claimants’ attorney wrote to the Defendant calling upon the Defendant to repay the sum of $67,200.00. The Claimant paid this sum as a down payment pursuant to a construction agreement for work on the property. The “17 th February 2013” appears to be an error, and the letter should have been dated 17 th February 2014.
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b. By letter dated the 11 th March 2014, the Defendant's attorney wrote to the Claimants’ attorney denying the assertions that he is liable to repay the sum mentioned. Instead, the Defendant claimed that he is entitled to $45,000.00. This sum is forfeited from the deposit paid under the contract as liquidated damages for default, breach and repudiation. Also, the Defendant proposed that the sum of $20,000.00 be refunded to the Claimants.
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c. On the 14 th November 2017, the Claimants filed their claim form, statement of case and supporting documents.
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d. A process server and agent for the Claimants, Wendell Prime, on 31 st January 2018, 9 th February 2018, 17 th February 2018, 5 th March 2018 and 7 th March 2018, attempted to personally serve the Defendant the said claim form and statement of case. The attempts to serve the Defendant were made at 17 Covigne Road, Diego Martin, which is the address stated on the claim form as being the Defendant's.
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e. On the 13 th March 2018, the Claimants filed a Notice of Application and a supporting affidavit pursuant to Rule 5.12 of the CPR for an order for service by a specified method. Also, an order extending the validity of the Claim for the purposes of service per Rule 8.14(3) of the CPR.
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f. On the 16 th March 2018, this Court granted the order extending the validity of the Claim Form and dispensing with personal service of the claim form and statement of case. It was ordered that service of the claim form and statement of case be effected by advertisement in a local daily newspaper of general circulation in Trinidad and Tobago once per week for two (2) consecutive weeks. On the 21 st May 2018, an affidavit of service was filed. The affidavit of service said that the advertisement appeared in the Trinidad Express on Wednesday, 25 th April 2018 and Wednesday, 2 nd May 2018.
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g. On 16 th July 2018, the Claimants requested an entry of Judgment in default of appearance against the Defendant.
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h. On the 16 th July 2018, judgment in default of appearance was entered by the Registrar.
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i. On 10 th April 2019, the Claimants filed a Judgment Summons.
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j. According to the Affidavit of Service by Wendell Prime filed on the 8 th January 2020, he served the Defendant on the 16 th November 2019 with a true and correct copy of the Notice of Adjourned Date dated and filed on the 15 thOctober 2019 together with a copy of the Judgment Summons and an affidavit of Susan Jeremiah-Alexander dated and filed on the 10 th April 2019.
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k. On the 31 st December 2019, the Defendant was served with the filed Judgment Summons, an affidavit of Susan Jeremiah-Alexander and Judgment in Default of Appearance Order.
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l. On January 8 th 2020, the Defendant filed the Notice of Application to set aside Judgment in default of appearance which was listed for hearing on the 7 th February 2020 but was rescheduled to 13 th March 2020 on which date counsel for both parties made oral submissions and thereafter gave the undertaking to engage in settlement negotiations.
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m. By Order dated the 13 th March 2020, this Court ordered that the Judgment Summons dated and filed on the 10 th April 2019 be stayed pending the outcome of the Notice of Application to set aside Judgment in default of appearance. The Court also adjourned the matter to 27 th March 2020 for further consideration. However, due to the national lockdown from the 22 nd March 2020 of all non-essential services in the country resulting from the COVID-19 pandemic, the hearing was adjourned to 27 August 2020.
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n. At the hearing on 27 th August 2020 the Court was informed that settlement negotiations were unfruitful whereupon the Court gave directions for the filing of submissions. On the 18 th September 2020, counsel for the Claimants and Defendant filed submissions. On the 2 nd October 2020, counsel for the Claimant filed reply submissions.
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o. On the 6 th November 2020, counsel for the Claimants and the Defendant appeared (virtually via MS Teams) and were heard on the application.
According to the Defendant's Notice of Application, the application to set aside the judgment in default of appearance is made pursuant to “ Part 13.3 (1) (a) and (b)… and the inherent jurisdiction of the Honourable Court to grant an Order”. However, the grounds of the application and the affidavit of the Defendant include facts that are relevant for due consideration per Rule 13.2 of the CPR and Rule 13.3 of the CPR, that is, the Defendant was not properly served with the Claim and Statement of Case.
Counsel for the Claimants submitted orally that the application was only made pursuant to Rule 13.3 (1) (a) and (b) of the CPR. Therefore, the Rule 13.2 of the CPR is not relevant. Accordingly, counsel for the Claimants’ submissions were limited to Rule 13.3 (1) (a) and (b)of the CPR.
Part 13 of the CPR sets out the provisions for setting aside a default judgment. Rule 13.2 sets out the circumstances in which it is mandatory for the Court to set aside default judgment, whereas Rule 13.3 provides for instances where the Court has a discretion as to whether to so set aside.
Rule 13.2 of the CPR states:
) “The Court must set aside a judgment entered under Part 12 if judgment was wrongly entered because—
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a) in the case of a failure to enter an appearance, any of the conditions in rule 12.3 was not satisfied; or
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b) in the case of judgment for failure to defend, any of the conditions in rule 12.4 was not satisfied.
) The Court may set aside judgment under this rule on or without an application.”
Rule 13.3 of the CPR provides:
) “The Court may set aside a judgment entered under Part 12 if—
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a) the defendant has a realistic prospect of success in the claim; and
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b) the defendant acted as soon as reasonably practicable when he found out that judgment had been entered against him.
) Where this rule gives the court power to set aside a judgment, the Court may instead vary it.”
Rule 12.3 of the CPR:
Conditions to be satisfied — judgment for failure to enter appearance
At the request of the claimant, the court office must enter judgment for failure to enter appearance if—
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(a) the court office is satisfied that the claim form and statement of case have been served;
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(b) the period for entering an appearance has expired;
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(c) the Defendant—
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(i) has not entered an appearance;
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(ii) has not filed a defence to the claim or any part of it;
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(iii) where the only claim is for a specified sum of money, apart from costs and interest, has not filed an admission of liability to pay all of the money claimed together with a request for time to pay it; or
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(iv) has not satisfied the claim on which the claimant seeks judgment; and
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(d) (where necessary) the claimant has permission to enter judgment. (Rules 5.5, 5.9, 5.10 and 5.13 deal with how to prove service of the claim form and statement of case)
Rule 13.2 (2) of the CPR provides: “
“The court may set aside judgment under this rule on or without an application.”
Therefore, because the Defendant's affidavit included the ground that he was not properly served with the Claim, the Court gave due consideration to the issue of personal service.
Thus, two issues arise for determination as follows:
Whether the Claim was properly served on the Defendant? and, if yes,
Whether the conditions in Rule 13.3 (1) (a) & (b) of the CPR 1998 were satisfied?
The importance of service of the claim form was noted in Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1:
“But service of the claim form serves three purposes. The first is to notify the Defendant that the claimant has embarked on a formal process of litigation and to inform him of the nature of the claim. The second is to enable the Defendant...
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