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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
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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.
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(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
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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
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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.
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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.
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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).
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[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
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‘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
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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.
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[15] Finally, I am grateful to counsel on both sides for their well-written submissions.
Dame Janice M. Pereira
Chief Justice