THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
BANK OF NOVA SCOTIA
Mrs. Michelle John-Theobalds Master [Ag.]
Mr. Horace Fraser for the Defendant/Applicant
Mr. Leevie Herelle for the Claimant/Respondent
Mrs. Alberta Joseph-Felicien, the Defendant/Applicant
Ms. Yasmin Joseph representative of the Claimant /Respondent
2019: May 15;
2020: August 3.
 JOHN-THEOBALDS M [AG.]: This is an
application to set aside the judgment entered against the defendant on 11 th May 2018, in default of acknowledgement of service.
 The circumstances giving rise to this application can be shortly
stated. On 28th March 2018, the claimant (“the
Bank”) instituted proceedings against the defendant to recover the sum of
$51,421.61, together with interest at the rate of 12% from 22nd
October 2015. This sum represented a debt owed by the defendant to the Bank
in respect of a small business loan granted for the conduct of business for
the company Alwin Manufactures Ltd. The Bank maintained that the claim form
and the statement of claim were served on the defendant personally on 9 th April 2018. The defendant having not filed an acknowledgment
of service within 14 days of the date of service of the claim, the Bank
made a request for entry of judgment in default which was entered against
her on 11th May 2018.
 On 15th June 2018, the defendant was served with a copy of
the judgment in default. The defendant alleged that she was unaware that a
claim had been filed against her as she was never served personally with
the claim. On 4th July 2018, she therefore filed an application
seeking to have the default judgment set aside together with an affidavit
 It appears from the heading of the defendant’s application to set aside
the default judgment that it is being made pursuant to rules 13.2(1) and
13.3(1) of the Civil Procedure Rules 2000 (the “CPR”). The
grounds of the application, however, have not been clearly set out by the
defendant, who has left the court to navigate through the maze of the
written submissions. In any event, it seems that the defendant is, in the
first instance, seeking to have the default judgment set aside under rule
13.2(1) of the CPR, on the basis of her contention that she was never
served with the claim. I will therefore deal with these in turn.
Application to set aside default judgment under rule 13.2(1)
 Under rule 13.2(1) of the CPR, the court must set aside a judgment
entered under Part 12 if the judgment was irregularly entered, where there
was a failure to file an acknowledgment of service, or where any of the
conditions in rule 12.4 of the CPR was not satisfied. Rule 12.4 (a)
outlines the conditions to be satisfied when the court enters judgment for
failure to file acknowledgment of service, as follows:
“12.4 The court office at the request of the Claimant must enter judgment
for failure to file an acknowledgment of service if –
(a) the Claimant proves service of the claim form and statement of claim;…”
 The Bank filed an affidavit of service on 26th June 2018
attesting to service of the claim form and the statement of claim on the
respondent. The affiant who is a process server, Police Constable 369
Anthony Worrell John (“Officer John”), deposed that he personally served
the defendant on 9th April 2018 at 5:53 pm at the registered
business address of Alwin Manufactures Ltd. However, in her affidavit filed
in support of her application to set aside the default judgment, the
defendant stated that she was never personally served with the claim form
and statement of claim in this matter and that she was only aware of a
previous suit which had been discontinued against her. Thus, she contended
that the default judgment should be set aside.
 The application to set aside came up for hearing before another master
on a number of occasions, where the matter was case managed. With service
on the defendant clearly being in issue, the learned master summoned the
process server, Officer John to attend court on 15th May 2019 to
be examined on his affidavit of service.
 When the application came up for hearing on 15th May 2019,
the court heard the evidence of the defendant and Officer John. The
defendant testified that she was very familiar with Officer John whom she
has known for a long time and that he would have had no difficulty
identifying her. When asked whether Officer John had ever served her with
any documents, she recalled being served by him only once, which was on 15 th June 2018 when she was served with the judgment in default of
defence. The defendant testified that on the day in question she was at
work at the Bordelais Correctional Facility where she is employed as a
correctional officer. She said that her workday ended at 5:00 pm, however
on that day she never went to Alwyn Manufactures Ltd. She also stated that
Alwyn Manufactures Ltd. is her husband’s company and that she does not
perform any functions at the company. In essence, the defendant was adamant
that she was not served with any documents by Officer John on 9 th April 2018.
 In his oral evidence, Officer John confirmed that he has known the
defendant for over 15 years as she was a family friend. He testified that
he did in fact serve the defendant with the claim form, statement of claim
and supporting documents on 9th April 2018 at Alwin Manufactures
Ltd. He testified that he was not mistaken that he served the defendant.
Learned counsel for the defendant, Mr. Fraser, in his cross examination,
suggested to Officer John that he served Mr. Andre Felicien, the
defendant’s husband with the documents and not the defendant. Officer John
denied this, as he was certain that he only served Mr. Felicien documents
that were relevant to him and the defendant was whom he served on that day.
 It is a fact that there is some measure of familiarity between the
defendant and Officer John as they both testified to having known each
other for a while. The defendant confirmed that on 15th June
2018, before she was served with the judgment in default, Officer John
telephoned her to find out where she was and she informed that she was at
Alwin Manufacturers Ltd. He then went to serve her at that location.
Officer John testified that he was not mistaken as to who he served, or any
of the other details of the service because he took notes and was able to
produce an affidavit of service from these notes.
 During his oral submissions, Mr. Fraser stated that the length of time
it takes to travel from the Bordelais Correctional Facility to Union where
Alwin Manufactures Ltd. is located is about one hour. He argued that, if
the defendant leaves work at 5:00 p.m., it would be impossible for her to
have been at Alwyn Manufactures Ltd. by 5:53 pm for Officer John to have
served her there. Mr. Fraser therefore asked this court to find that
Officer John was not a credible witness; that he did not effect personal
service on the defendant, but instead left the documents at Alwin
Manufacturers Ltd. with Mr. Felicien.
 In her affidavit in support of her application the defendant deposed
that “it seemed” that the process server left the documents at Alwyn
Manufacturers Ltd., a place where she did not live or work. It is
noteworthy that at no time during the evidence given by the defendant did
she intimate that the document was served on her husband and not her. The
first time that this version of events was canvassed was briefly in Mr.
Fraser’s cross examination of Officer John. Later in his closing arguments,
Mr. Fraser sought to persuade the court that Officer John was so familiar
with the defendant and her husband, Mr. Andre Felicien, that he in fact
left the claim form and statement of claim with Mr. Felicien, as opposed to
serving the defendant personally. The court at that time intimated to Mr.
Fraser that no such account had not been brought out in the defendant’s
 Having listened intently to the testimonies, and after closely and
carefully observing the demeanor of both witnesses, the defendant did not
appear to me to be forthright about service of the claim form and statement
of claim on her. The defendant also did not appear to be forthcoming in
some of her answers. During cross examination, the defendant became very
defensive and irritated and at times was aggressive to counsel for the Bank
although the line of questioning was not antagonistic or unduly
unreasonable. Her demeanor while giving her evidence suggested to me that
she is not a credible witness.
 Additionally, Mr. Fraser’s submission in relation to why it was not
possible for Office John to have served the defendant at the location he
deposed to have, is not convincing to me. Therefore, I do not accept that
it was impossible for the defendant to have left place of work at 5:00 pm
and have arrived at Alwin Manufactures Ltd. to be served at the time that
 I prefer the evidence of Officer John as I find it to be more
credible. He was very forthcoming with his answers. In addition to being a
process server for over 20 years, Officer John testified that works as a
process server for a number of attorneys, including counsel for the
defendant and that he had no desire to tarnish his reputation or bring his
clients into disrepute. Having also carefully considered the defendant’s
testimony, I am not persuaded that she was not served with the claim and
supporting documents by Officer John.
 Taking all of the above into consideration, I therefore find that the
claim form and statement of claim were duly served on the defendant.
Consequently, the application to set aside the default judgment under CPR
13.2(1) fails as: (i) the Bank has proven service of the claim form and
statement of claim; and (ii) the defendant has failed to file an
acknowledgment of service within the time stipulated by CPR 9.3(1).
Application to set aside default judgment under CPR 13.3(1)
 Having found that the application to set aside under CPR 13.2 fails, I
will now consider the application to set aside the default judgment under
 CPR 13.3(1) specifies three conditions which a defendant must satisfy
before the court can set aside a default judgment. It provides that:
“If Rule 13.2 does not apply, the court may set aside a judgment entered
under Part 12 only if the defendant –
(a) Applies to the court as soon as reasonably practicable after finding
out that judgment had been entered;
(b) Gives a good explanation for the failure to file an acknowledgement of
service or a defence as the same case may be; and
(c) Has a real prospect of successfully defending the claim.”
 It is settled law that the conditions for setting aside a default
judgment are conjunctive.
Therefore, unless all three conditions are satisfied, the court ought not
to aside the judgment. I now turn to consider whether the defendant has
satisfied the conditions under CPR 13.3(1).
Limb 1 – Applies to the court as soon as reasonably practicable
 Judgment in default of acknowledgment of service was entered against
the defendant on 15th May 2018 and was served on her on 15th June 2018. The defendant filed an application to set aside on 4th July 2018. This would put the
defendant’s filing of the application to set aside some 19 days after being
served with the default judgment. In Glen Guiste v New India Assurance Co. (T&T) Ltd.,
Cenac-Phulgence J did not find a lapse of 20 days to be unreasonable.
Although the defendant did not give a reason for filing the application 19
days after being served with the default judgment, I find that the delay
was not inordinate. The defendant therefore satisfies this limb.
Limb 2 – Explanation for the failure to file an acknowledgement of
 The affidavit in support of the application filed by the defendant
sets out in very general terms, over one brief paragraph, the defendant’s
explanation for failing to file the acknowledgment of claim. The
explanation offered by the defendant was simply that she was not personally
served with the claim form and statement of claim. The defendant further
deposed in paragraph 7 of her affidavit in support that:
“It seems that the process server left those documents at Alwin
Manufactures Ltd, a place where I do not work or live.”
 The defendant offers nothing further by way of an explanation. Taking
her explanation into consideration, there may not be much more which the
defendant could have offered if this was the basis for her failure to file
an acknowledgment of service. However, having regard to my earlier finding
that the defendant was in fact personally served by Officer John, I am not
satisfied that the defendant has provided no good explanation for her
failure to file an acknowledgment of service. The application therefore
fails on this limb.
Limb 3- Real prospect of successfully defending the claim
 As stated earlier, all three conditions under CPR 13.3 must be
satisfied for the default judgment to be set aside. It therefore follows
that the defendant having failed on the second limb will not be successful
in her application to set aside the default judgment. However, for the
purposes of completeness, I will consider the third condition.
 Before addressing the third limb of the test under CPR 13.3(1), I note
that CPR 13.4(3) provides that the affidavit in support of an application
under CPR 13.3(1) must exhibit a draft of the proposed defence.
 The defendant, however, has failed to exhibit a draft defence in
accordance with the requirements of CPR 13.4(3). In my opinion, the
construction of CPR 13.4(3) was deliberate. It was not intended for the
proper consideration of applications under CPR 13.3(1) to be done only on
the basis of the affidavit in support of the application. Indeed, CPR
13.4(3) clearly states that the affidavit must exhibit a
draft of the proposed defence. This is because in order to satisfy the test
under CPR 13.3(1), the applicant has to demonstrate a real prospect of
successfully defending the claim. It is therefore to the draft defence
which the court must look to determine whether the applicant has
demonstrated any such prospect of success. It must go hand in hand with the
affidavit in support. While an affidavit contains the evidence in support
of the application, the draft defence particularises what the applicant’s
defence will be at trial should the application to set aside the default
 Mr. Fraser’s response to this observation was that the affidavit in
support of the application to set aside the default judgment, sets out what
the defence will be. In my view, such an approach is not contemplated by
the CPR. However, I note the position taken by Thom J (as she then was) in Doreen Leslie v Bradley Davis et al
where Her Ladyship acknowledged that the purpose of filing a draft defence
is to allow the court to determine whether there is a real prospect of
success. Notwithstanding counsel’s failure to exhibit a draft defence, the
court proceeded to consider the affidavits filed in support of the
application to determine whether the defendants had a real prospect of
successfully defending the claim. I am guided in this regard and will now
examine the affidavit in support to determine whether the defendant has a
real prospect of success.
 In her affidavit in support, the defendant stated that she was also a
defendant in claim no. SLUHCV2015/0847 along with Mr. Felicien and Alwin
Manufacturers Ltd. On 23rd February 2018, the claim against the
defendant was withdrawn and discontinued by the Bank before any
determination by the court and that claim was never served on the
defendant. On 13th March 2018, judgment was entered in favour of
the Bank against Mr. Felicien and Alwin Manufacturers Ltd. On 28 th March 2018, the Bank initiated these proceedings in respect
of the same debt, this time against the defendant only. The defendant
contended that when the Bank withdrew the claim against her and entered
judgment against Mr. Felicien and Alwin Manufactures, the issue of the
loan, which was the subject matter of the claim, became a non-issue. She
argued that the Bank is estopped from raising the issue as the matter is res judicata.
 In assessing this issue, a useful starting point is paragraph 975 of Halsbury’s Laws of England,
“Essentials of res judicata.
In order that a defence of res judicata may succeed it is necessary to show
not only that the cause of action was the same but also that the Plaintiff
has had an opportunity of recovering, and but for his own fault might have
recovered in the first action that which he seeks to recover in the second.
A plea of res judicata must show either an actual merger, or
that the same point has been actually decided between the same parties
… It is not enough that the matter alleged to have been estopped might
have been put in issue, or that the relief sought might have been claimed.
It is necessary to show that it actually was so put in issue or claimed.”
 Paragraph 1529 of Halsbury’s Laws of England goes
further to indicate that the plea of res judicata should only succeed where
the cause of action is the same and has already been determined on the
merits. It emphatically states that a procedural prohibition will not
satisfy res judicata. Therefore, the defendant must demonstrate
not just that the matter alleged to have been estopped might have been put
in issue, or that the relief sought might have been claimed, but showing
that it actually was so put in issue and that the same point has been
actually decided between the same parties.
 During his oral submissions, Mr. Fraser contended that if the judgment
is set aside, the defendant can avail herself of the plea of res judicata at trial. He stated that the fact that judgment was
entered in claim no. SLUHCV2015/0847 amounts to the matter being
adjudicated and consequently the Bank is estopped from bringing this
present claim which is in respect to issues which could have been raised in
the previous claim. He further contended that the instant claim is an abuse
of process. In support of his contentions, Mr. Fraser relied on Greenhalgh v Mallard
and Barber v Staffordshire County Council.
 I agree with learned counsel for the Bank, Mr. Leevie Herelle, that Greenhalgh and Barber do not provide much
assistance to Mr. Fraser’s contentions as both cases involved circumstances
very different to those of the case at bar. In support of his submission
that res judicata does not apply, Mr. Herelle referred to the
decision of the Court of Appeal in
Analdo Bailey v St. Kitts and Nevis Cable Communications Limited
In that case, the Court of Appeal held that the debt in question, which was
owed to the respondent, had in fact not been litigated in the previous
proceedings and hence res judicata did not apply.
 The case of Douglas O’Neal Creese v Vibert Creese
is instructive on this point. In that case, Thom J (as she then was)
Where a claim was withdrawn and none of the issues raised in the claim
were adjudicated upon, the doctrine of res judicata does not apply to
prevent a party from raising the same issues in a subsequent proceeding
. This issue was considered in Land v Land  AER p.
218. In Land’s case a summons by a wife for maintenance on the ground that
her husband had deserted her was withdrawn after the wife had given
evidence but before the Court made a ruling. The wife subsequently filed a
second summons on the ground of the husband’s desertion. The evidence given
was substantially the same as in the earlier proceedings. It was argued on
behalf of the husband that the wife was precluded from bringing a second
summons on the same grounds. The Court held that the matter of complaint
not having been adjudicated on, the wife was not estopped from proceeding
with a second complaint based on the same matter.” (Emphasis added)
 Support for the position set out in Creese v Creese,
is found in the decision of the Court of Appeal in Marie Madeleine Egger v Herbert Egger
where Alleyne JA held:
“ [W]here there is a challenge as to the effect of a judgment, the binding
authority of the judgment, in the sense of estoppel or res judicata, only
arises when the Court has had the benefit of argument by counsel on both
sides and has actually adjudicated the question…a default judgment, is not the result of adjudication by the Judge, but…
of failure of the defendant to take a procedural step within a
prescribed time or at all
.” (Emphasis added)
 A careful examination of the case law in this area reveals that
estoppel or res judicata can only properly be pleaded, and by extension
relied upon, where the first claim was decided based on its merits, rather
than by mere procedural prohibition. It is clear that the defendant’s
liability in relation to the debt was never put in issue as the claim was
withdrawn against her before the matter was adjudicated. Moreover, as the
first claim culminated in a default judgment, the issues raised in the
claim were not decided on their merits and therefore cannot properly be
said to have been adjudicated. Accordingly, I am not of the view that the
defendant has any real prospect of defending the claim on the basis of res judicata.
 Additionally, the defendant in her application briefly stated that on
17th April 2018, the Bank entered into a forbearance agreement
with Mr. Felicien with respect to the said debt. A copy of the agreement
was adduced. However, Mr. Fraser did not address the issue of the agreement
in his written or oral submissions.
 In the written submissions filed on behalf of the Bank, learned
counsel Mr. Herelle advanced a number of reasons why the defendant cannot
rely on the forebearance agreement to defend the claim. Upon review of the
agreement, I agree with Mr. Herelle that there is no mention of the
defendant. The agreement speaks to a meeting with Mr. Felicien relative to
the debts owed by Alwin Manufacturers Ltd., of which it was in default. The
Bank therein agreed to forbear pursuing legal action on the conditions that
(i) payments would be maintained at a minimum of $500.00 per fortnight and
would be made no later than the 15th and 30th of each
month and (ii) that the bank does not waive the defaults and reserved its
rights arising from these defaults, including the right of acceleration. I
also note, as pointed out by counsel for the bank, that the agreement was
dated after the date that judgment against Mr. Felicien and Alwin
Manufacturers Ltd. was entered in suit SLUHCV2015/0847 and that it makes no
reference to the claim or the judgment or any other claim for that matter.
I am satisfied that the defendant is not a party to the forbearance
agreement. Therefore, I do not consider that the defendant has a real
prospect of successfully defending the claim on the basis of the agreement.
 For the forgoing reasons, I hereby make the following orders:
(1) The defendant’s application to set aside the judgment entered on 11 th May 2018 in default of acknowledgment of service is refused;
(2) The defendant, having been unsuccessful in her application to set aside
the default judgment, shall pay costs to the Bank in the sum of $750.00 to
be paid within 21 days of the date of this order.
 I am grateful to counsel for their assistance in this matter. I deeply
regret the delay in delivering this judgment.
By the Court
Kenrick Thomas v RBTT Bank Caribbean Limited, Saint Vincent and the
Grenadines Civil Appeal No. 3 of 2005 (delivered 13th
October 2005, unreported).
SLUHCV2016/0171 (delivered 1st March 2017, unreported)
at para 13.
Saint Vincent and The Grenadines High Court Civil Claim No. 47 of
1998 (delivered 21st September 2006, unreported).
4th Edition (Reissue).
 2 All ER 255.
 2 All ER 748.
Saint Christopher and Nevis Magisterial Civil Appeal No. 3 of 2004
(delivered 1st November 2004, unreported).
Saint Vincent and The Grenadines High Court Civil Claim No. 318 of
2004 (delivered 24th October 2005, unreported) at para.
Saint Lucia Civil Appeal No.17 of 2002 (delivered 26th
April 2004, unreported) at para. 67.