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    Home » Judgments » Court Of Appeal Judgments » Adam Bilzerian v Gerald Weiner et al

    1
    THE EASTERN CARIBBEAN SUPREME COURT
    IN THE COURT OF APPEAL
    SAINT CHRISTOPHER AND NEVIS
    SAINT CHRISTOPHER CIRCUIT
    SKBHCVAP2012/0028
    BETWEEN:
    ADAM BILZERIAN
    Appellant
    and
    [1] GERALD LOU WEINER
    [2] KATHLEEN ANN WEINER
    Respondents
    Before:
    The Hon. Dame Janice M. Pereira Chief Justice
    Appearances (on written submissions only):
    Mr. John Tyme for the Appellant
    Mr. Jean M. Dyer for the Respondents


    2013: May 24.


    Interlocutory appeal – Whether judge erred in refusing to set aside judgment entered in
    default – Whether another acknowledgment of service is required after an amended claim
    is filed – Whether an amended claim constitutes a fresh action and/or supersedes the
    original claim – Civil Procedure Rules 2000 Parts 9, 10 and 13
    The respondent filed and served a claim form and statement of claim (“the Original Claim”)
    on the appellant. The appellant filed an acknowledgement of service within the prescribed
    time under the Civil Procedure Rules 2000 (“CPR”). The respondent then filed and
    served an amended claim form and statement of claim (“the Amended Claim”). The
    appellant did not file another acknowledgment of service. The respondent entered a
    request for judgment in default of acknowledgment of service. The appellant filed and
    served a defence to the amended claim within the 28 day time limit prescribed by CPR.
    The appellant subsequently filed another acknowledgement of service. The Registrar
    entered the default judgment. The appellant applied to have it set aside on the ground that
    2
    it was wrongly entered as he had filed an acknowledgment of service to the Original Claim
    and as such there was no failure to file an acknowledgment of service. The application
    was dismissed by the judge. The appellant has appealed.
    Held: allowing the appeal, setting aside the default judgment, remitting the matter to the
    High Court for case management and awarding costs to the appellant, that:
    1. The learned trial judge was required as a matter of law to set aside the default
    judgment entered ‘in default of acknowledgment of service’ as having been
    wrongly entered pursuant to CPR 13.2(1) as there was an effective
    ‘acknowledgment of service’ filed to the Original Claim. It did not matter that the
    Original Claim was subsequently amended. The acknowledgement of service
    remained valid and effective in respect of the Amended Claim.
    2. The judge erred in accepting the respondents’ argument that the Amended Claim
    constituted a fresh action, as the Original Claim did not die and remained the claim
    even though amended.
    JUDGMENT
    [1] PEREIRA CJ: This interlocutory appeal arises from the refusal of the trial judge
    on 9th November 2012, to set aside a judgment entered in default against the
    appellant on 4th September 2012, the terms of which were fixed on 20th November
    2012. It raises the sole question as to whether a party is required, where he/she
    has filed an acknowledgement of service to an original claim form, on the filing of
    an amended claim form, to file a further or another acknowledgement of service.
    [2] The procedural chronology so far as is relevant to this appeal is as follows:
    (a) On 20th April 2012, the respondents issued a claim form together with a
    statement of claim against the appellant (“the Original Claim”);
    (b) On 22nd May, 2012, the appellant was served with the Original Claim.1
    (c) On 29th May, 2012 the appellant filed an acknowledgment of service. This
    acknowledgment of service was timely having been filed within fourteen
    days after service of the Original Claim as prescribed by rule 9.3(1) of the
    Civil Procedure Rules 2000 (“CPR 2000”).
    1 Other documents in respect of interim injunctive relief obtained on 24th April 2012 were also served on the
    appellant.
    3
    (d) On 21st and 22nd June 2012, the respondents filed and served respectively
    on the appellant an amended claim form and statement of claim (“the
    Amended Claim”).
    (e) No further or additional acknowledgment of service was filed and served
    by the appellant to the Amended Claim.
    (f) On 17th July 2012, the respondents issued a request for entry of default
    judgment “in default of – Acknowledgment of service”.
    (g) On 19th July 2012, the appellant had filed a defence in the proceedings. It
    is noteworthy that the appellant’s defence, in so far as the Amended Claim
    was concerned, would have been duly filed within the 28 day time limit
    prescribed by CPR 10.3(1) for service of a defence after service of the
    Amended Claim.
    (h) The appellant filed another acknowledgement of service on 31st August
    2012.
    (i) On 4th September 2012, the Registrar entered the default judgment.
    (j) On 12th September 2012 the appellant applied to set aside the default
    judgment on the ground that it was wrongly entered as he had filed an
    acknowledgment of service to the Original Claim and as such there was
    no failure to file an acknowledgment of service.
    (k) The application to set aside came on for hearing before the trial judge on
    9th November 2012 and that application was dismissed. The appellant
    has accordingly appealed with the leave of the court.
    [3] No written reasons were given by the learned trial judge for refusing to set aside
    the default judgment. Further, it appears that no formal order of refusal has been
    filed (as the record discloses none) and no copy of the order was attached to the
    notice of appeal as required by CPR 62.4(2). A timely reminder to the Registrars
    of the court offices in the jurisdiction as to the requirement contained in CPR
    42.5(1) would, I hope, be of some use. It says in part, subject to certain
    exceptions, that “Every … order must be drawn by the court, unless …” (my
    emphasis). Notwithstanding these failures, it appears to be common ground
    4
    between the parties that the learned trial judge refused to set aside the default
    judgment because he was of the view that:
    (i) the Amended Claim was a new claim; and
    (ii) it was not open to the appellant to acknowledge service of the Amended
    Claim after the Request for Entry of Default Judgment had been received
    by the Court Office.
    Accordingly, he held that the default judgment had been properly entered.
    [4] It does not appear that the learned trial judge considered the merits of the defence
    and counterclaim which was timely filed to the Amended Claim notwithstanding
    that the appellant, in his application to set aside, relied not only on CPR 13.2(1)(a)
    (which deals with a situation where the court must set aside a default judgment
    which was wrongly entered), but also on CPR 13.3(1) which gives the court a
    discretion as to whether or not to set aside a default judgment. In the exercise of
    that discretion the court must have regard to the timeliness of the application, the
    reason for the failure to file an acknowledgment of service or defence as the case
    may be, and the realistic prospects of defending the claim. On this application,
    launching a two-pronged attack on the default judgment, it was, in my judgment,
    incumbent on the trial judge, having found that the default judgment was regular
    and thus falling outside CPR 13.3(1), to have gone on to consider whether he
    ought to have exercised his discretion under CPR 13.3(1). The record does not
    disclose that the learned trial judge adverted his mind to CPR 13.3(1) at all and it
    is my considered view that he did not. I am fortified in this view having regard to
    Ms. Dyer’s skeleton arguments which fail to mention that the learned trial judge
    engaged in any such consideration. I have no doubt that had the learned trial
    judge done so, counsel would have so stated and indeed relied upon it. For this
    reason alone, the appeal ought to be allowed and the matter remitted to the
    learned trial judge to consider the application under CPR 13.3(1). However, this
    approach would not address the more fundamental issue of the default judgment
    entered ‘in default of Acknowledgement of service’ on the basis that
    notwithstanding an acknowledgment of service was timely filed in respect of the
    5
    Original Claim, that another ‘acknowledgement of service’ was required once the
    Amended Claim had been subsequently filed. I now turn to consider this question.
    Is another ‘acknowledgement of service’ required in respect of an amended
    claim where an ‘acknowledgment of service’ had already been timeously
    filed in respect of the original claim?
    [5] Ms Dyer, counsel for the respondents readily accepts that since the advent of CPR
    2000, it does not appear that the situation as here, has been tested and that no
    authority has been found on the point. She refers to the pre-CPR era and the UK
    Supreme Court Practice (White Book) 1993 20/1/7 which in essence stated
    ‘where the amendment is made after acknowledgement of service, the Court will
    generally dispense with service of the amended writ2 and will generally order
    service and acknowledgement of service to stand although such order is not
    strictly necessary, since the original acknowledgment of service stands good to the
    amended writ’. She continued, in reliance on the White Book, that this was so
    because the amendment to the writ took effect not as from the date of the
    amendment but rather took effect retrospectively to the date of original issue of the
    writ.3 The Rules of Court 1970, (“the Old Rules”) generally followed the approach
    in the White Book.4
    [6] Counsel then posits that the Old Rules are at odds with CPR 2000 because:
    (i) CPR 20.3 expressly provides that a party must serve a copy of the
    amended statement of case on every other party;
    (ii) CPR 2000 does not enact an equivalent of the Old Rules Order 20/3/2/b
    for the management of proceedings after amendment. Given CPR’s
    silence thereon it must be inferred that timelines were all then meant to
    run afresh; and
    (ii) unlike the Old Rules, a claimant can amend his claim to add a cause of
    action which accrued to him since the issue of the claim form which is
    2 The “Writ” is now called the “Claim Form” under CPR 2000.
    3 See the White Book 1993 at 20/5-8/2.
    4 See generally, Order 20 of the Old Rules.
    6
    what the respondents did here, by adding a claim for monies due under a
    promissory note which became due on 14th May 2012.
    Accordingly, counsel says, that this leads to the conclusion that an amended claim
    constitutes a fresh action with fresh particulars and that it is logical that the
    timelines would run afresh since the amended claim supersedes the original claim.
    Analysis
    [7] It is true that CPR 2000, which allows a party to amend a statement of case,5 is
    silent as to the specific consequential steps to be taken thereafter. It does not say
    for example:
    (a) that where a party files and serves an amended statement of case
    on a defendant, that the defendant is allowed 28 days as set out
    in CPR 10.3(1) for the filing of an amended defence; or
    (b) that where a defendant has filed an ‘acknowledgment of service’
    to the original claim, once the original claim is amended and
    served on him, he/she must (notwithstanding having already
    given notice of intention to defend) file another or second
    acknowledgment of service in respect of the amended claim
    within the time allowed under CPR 9.3(1) for the filing of an
    acknowledgment of service to the original claim.
    Indeed, no provision is made for amending an acknowledgement of service (unlike
    Order 20 Rule 2 of the Old Rules).
    [8] This begs the question as to what is the true purport of the provisions of CPR 2000
    in the face of these omissions in relation to amendments to a statement of case.
    Were they deliberate? Should CPR import such provisions or read them as having
    been so imported to give effect to the provisions of CPR dealing with amendments
    to a statement of case? Or, put another way, is it necessary for giving effect to the
    provisions dealing with amended statements of case that such provisions be read
    5 Once without permission at any time prior to the date fixed for the first case management conference and
    thereafter with permission of the court.
    7
    into or imported into CPR 2000 where it is silent? The answer to this question lies
    in my view on an analysis of the provisions of CPR 2000, which would have a
    bearing on an amendment to a statement of case. In carrying out this analysis I
    bear in mind the fact that the drafters of CPR 2000 would have been quite familiar
    and versed in the Old Rules which were abolished only when CPR 2000 came into
    force.
    [9] An appropriate starting point in my judgment is with the definition of a ‘statement of
    case’ in CPR 2000. CPR 2.4 says that a ‘statement of case’ means:
    “(a) a claim form, statement of claim, defence, counterclaim, ancillary
    claim form or defence and a reply; and
    (b) any further information given in relation to any statement of case
    under Part 34 …”6
    We are here not concerned with subparagraph (b) of this rule, but rather with
    subparagraph (a). Importantly, an ‘acknowledgment of service’ is not caught
    within the definition of ‘statement of case’ and thus cannot be treated as or in the
    same way as a statement of case. This in my view is for good reason, having
    regard to the object and purpose of an ‘acknowledgment of service’. It is a
    document which serves a number of purposes:– It may give notice of an intention
    to defend the claim, or it may admit the whole or part of a claim with an intention to
    defend other parts of the claim, or, it may be a necessary precursor to disputing
    the court’s jurisdiction. An acknowledgement of service need not be filed at all if
    the defendant files a defence within the time that he should have filed such
    acknowledgement.7 The mere filing of the defence within the time limited for
    acknowledging service serves as sufficient notice of the defendant’s intention to
    defend the claim. It is to me pellucid that the object and purpose of the
    acknowledgment of service is to put the claimant on notice as to the stance taken
    by the defendant in relation to the claim. It pleads nothing one way or the other.
    6 Part 34 deals with Requests for Information.
    7 See CPR 9.1(2)(b) and 9.2(4).
    8
    [10] CPR 9.3(1) states that the general rule is that the period for filing an
    acknowledgment of service is the period of 14 days after the date of service of the
    claim form. This is clearly a reference to the original claim form. CPR 9.3(4) also
    states that ‘[a] defendant may file an acknowledgment of service at any time
    before a request for default judgment is received at the court office out of which
    the claim form was issued.’ This reference also appears to be a reference to the
    original claim form. Similarly, CPR 10.3(1) states as the general rule that ‘… the
    period for filing a defence is the period of 28 days after the date of service of the
    claim form.’ This also appears to be a reference to an original claim form.
    [11] CPR Part 20 deals with amendments to ‘statements of case’. It tells you when and
    the basis on which a statement of case may be amended. It does not deal with or
    impose timelines for filing an amended statement of case – whether by way of
    claim form, statement of claim, defence, counterclaim or reply. More importantly, it
    does not state that where a statement of case is amended it gives rise to or
    constitutes ‘a fresh action’ or that the amended claim ‘supersedes’ the original
    claim as contended by counsel for the respondent if what is meant by those
    phrases is that the action will have commenced only as from the date of filing the
    amended claim and that the Original Claim has simply died as from the date of
    filing the amended claim. This was not the case pre-CPR and the language of
    CPR does not call for such a construction now. To my mind, to speak of an
    ‘amended statement of case’ or a statement of case being amended means
    exactly what it says – that the statement of case albeit amended, remains the
    ‘statement of case.’
    [12] In my view the references to the ‘claim form’ (in CPR 9.3(1), 9.3(4) and 10.3(1))
    are wide enough and would sensibly incorporate an ‘amended claim form’. It
    would be absurd to think that where a claim form was amended before service on
    a defendant and a defendant filed an acknowledgment of service that it needed to
    be specified or stated that he was acknowledging service of the ‘amended claim
    form’. Similarly, where a defendant was served with a ‘claim form’ but prior to the
    14 day period limited for acknowledging service he was again served with an
    9
    ‘amended claim form’, it would be quite odd to require the defendant to specify that
    he was acknowledging service of the ‘amended claim form’ or, worse yet require
    that the defendant proceed to file two ‘acknowledgments of service’ – one in
    relation to the original claim and one in relation to the amended claim. Yet, by
    analogy, this is precisely what the respondents argue should be the case here.
    The defendant had filed an acknowledgement of service to the Original Claim form
    before being served again with the Amended Claim. Counsel for the respondents
    urged and the learned trial judge accepted (in my view, wrongly), that the
    Amended Claim constituted a fresh action. With the utmost respect to counsel
    and the learned trial judge this is simply not the case. The Original Claim (even as
    here where a new cause of action was added by amendment), did not die. It
    remained the claim albeit amended. As such, it does not constitute a ‘fresh action’
    but continues as the action in its amended form. For similar reasons it is incorrect
    to speak of the Amended Claim as having ‘superseded’ the Original Claim.
    [13] In short, the claim form, albeit amended, is still, to all intents and purposes, the
    claim form. To my mind it would be more apt to view the Amended Claim as being
    subsumed in the Original Claim with effect from the date when the amendment
    became so subsumed. Once it is understood in this way, the time lines as set out
    in CPR Parts 9 and 10 are easily and properly applied without the need to resort to
    importation or seeking the aid of pre-CPR provisions to give effect to what is, to
    my mind, the plain and obvious construction of the word “amend” as understood in
    its natural context. Accordingly, whether the defendant filed an acknowledgement
    of service to the Original Claim before service on him of the Amended Claim
    matters not. The fact that an Amended Claim has been filed and served on the
    defendant subsequently, does not affect the legal efficacy of the
    ‘acknowledgement of service’ filed in respect of the Original claim or the Amended
    Claim. It holds good for both as the Amended Claim is, as a matter of law, no
    more than the Original Claim in amended form. Similarly, a defence filed in
    respect of the Original Claim would be efficacious in respect of the Amended
    Claim although a defendant may, if desirable, file an amended defence, which to
    all intents and purposes would be ‘the defence’ to be filed in accordance with the
    10
    timeline set out in CPR 10.3(1). Mr. Tyme, counsel for the appellant is quite right
    in his contention that ‘the amended claim was served on the appellant on 22nd
    June 2012. In keeping with Rule 10.3(1) of the Civil Procedure Rules the
    appellant had 28 days in which to file his Defence; that by filing his Defence on
    19th July, 2012 the Appellant was within the time specified for him to do so…’. In
    my judgment, the drafters of CPR 2000 must have considered the matter and
    concluded that it was not necessary to state that which (on applying the natural
    meaning of words within their context) is plain and obvious.
    Conclusion
    [14] Based on the foregoing, it follows that the learned trial judge was quite wrong not
    to set aside the default judgment ‘in default of acknowledgment of service’
    pursuant to CPR 13.2(1) when there was an effective ‘acknowledgment of service’
    filed on 29th May 2012 to the Original Claim. CPR 13.2(1) does not admit of a
    discretion. The learned trial judge was required as a matter of law to set aside the
    default judgment entered ‘in default of acknowledgment of service’ as having been
    wrongly entered. I accordingly allow the appeal and make the following orders:
    1. The order of the trial judge made on 9th November 2012 refusing to set
    aside the default judgment entered on 4th September 2012, is hereby set
    aside.
    2. The default judgment entered on 4th September 2012, the terms of which
    were fixed on 20th November 2012, is hereby set aside pursuant to CPR
    13.2(1) as having been wrongfully entered.
    3. The substantive matter shall be set down by the Registrar of the Court on
    a date to be fixed for the conduct of a first case management conference
    pursuant to CPR 27.3.
    4. The respondents shall bear the costs of this appeal fixed in the sum of
    $2,500.00.
    11
    [15] Finally, I am grateful to counsel on both sides for their well-written submissions.
    Dame Janice M. Pereira
    Chief Justice

    /adam-bilzerian-v-gerald-weiner-et-al/
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