THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SAINT VINCENT AND THE GRENADINES
CLAIM NO. 64 Of 2007
BETWEEN:
AND
AND
DR. RALPH E. GONSALVES
MATTHEW THOMAS
BDS LIMITED
CLAIMANT
FIRST DEFENDANT
SECOND DEFENDANT
Appearances: Mrs. Kay Bacchus Browne for the ApplicanV F~rst Named Defendant. Mr G. Graham Boilers
for the ClaimanVRespondent and Mr Kezron Walters with him
2014. June 25
July 17
JUDGMENT
[I] Henry, J. (Ag.): Th1s is an application by the Applicant/First Named Defendant’ filed on January
15, 2014 for an order setting as1de “the summary/judgment dated 16th November 2009 striking out
the defence and also for an order to stay the execution of an oral examination made by the Master
Actie on 26th November 2013 until the hearing and determination of the said Application”. The
Defendant swore an affidavit on January 14, 2014 which was filed on January 15. 2014 in support
1 Referred to herein as “the Defendant”
1
of the application Paragraphs 10 through 14 of the affidavit rehearse in almost identical terms
paragraphs 10 through 15 of the grounds of the application.’ The Claimant opposes the Application
and by affidavit filed on April 22, 2014, he describes the Application as “an abuse of the process of
the court”, states that recourse can be had only to the Court of Appeal and that the trme for dorng
so has already passed.
BACKGROUND
[2[ The ClaimanVRespondent’ rnitiated actron against the Defendant by Fixed Date Claim Form filed on
February 22, 2007 in which he sought damages and costs against the Defendant and Second
Named Defendant for slander by words spoken by the Defendant and broadcast on a radro statron
(Nice Radio 96.7 FM owned by the Second Named Defendant. The Claimant filed a Nollce of
Application on August8, 2009 for an order pursuant to Part 26.3 of the Civil Procedure Rules 2000
(“CPR”) strikrng out the defendant’s defences’ and for JUdgment to be entered for the Claimant for
payment of damages to be assessed and costs. The Claimant and the Defendant were
represented by counsel when that Application was heard on September 30, 2009. Counsel for the
Claimant subsequently filed written submissions pursuant to an order for the parties to do so on or
before October 16, 2009. Counsel for the Defendant filed none.
(3[ By Decision dated November 16, 2009, Her Ladyship Madam Justice Jennifer Remy concluded that
“the Defence of the 1st and 2nd Defendant has no reasonable chance of success, is incurably bad,
2 Those grounds are set out in paragraph 5 of this judgment.
3 Referred to hereafter as “the Claimant”.
4 On the ground that they did not establish reasonable defences
2
wholly unsustainable, without merit and is an abuse of the process of the court and should be
struck out.’ It was ordered that the defence be struck out and judgment was entered for the
Claimant inter alia as follows:
(a) Defendants are liable JOintly and severally to the Claimant for damages to be assessed.
(b)
(c) Prescribed costs to the Claimant based on the quantum of damages awarded.”
[4] The Claimant filed a Notice of Application on March 5, 2010 for damages to be assessed and costs,
and directions for the hearing. By Order dated April 19, 2010, the Learned Master ordered the
Claimant and the Defendant to file and serve evidence and submissions with authorities on the
issue of quantum by July 2, 2010. Both parties were represented by their counsel at that hearing
and again on February 10, 2012 when the hearing for the assessment of damages took place.
Aggravated damages were assessed and awarded against the defendant in the sum of
$155,000.00 with interest at the statutory rate of 5% and prescribed costs of $11,625.00. The
Claimant applied subsequently for the Defendant to be examined orally as to h1s means to satisfy
the judgment debt. The Defendant now seeks the orders in the instant application.
GROUNDS OF THE APPLICATION
[5] The grounds on wh1ch the Application is made are set out in the Defendant’s Notice of Applicat1on as
“(1) By Claim Form filed on the 22nd February 2007, the Claimant sought among
other things damages and costs against the Defendant for slander, claiming that he was
slandered by \vords spoken by the First Defendant broadcast to persons in St. Vincent and
the Grenadines and St. Lucia on Nice Radio 96.7FM, owned by the Second Defendant.
(2) In his Statement of Claim, the Claimant pleaded that he is a Barrister-at-Law
and Solicitor of the Eastern Caribbean Supreme Court in St. Vincent and the Grenadines,
3
that he is the political leader of the United Labour Pmiy in this State, a Member of
Parliament for the North Windword Constituency and is the present holder of the Office
of the Prime Minister and Minister or Finance or the State of Saint Vincent and the
Grenadines.
(3) The \Vords complained of by the Claimant arc set out in paragraph 5 of his
Statement of Claim.
(4) in Paragraph 8 of his Statement of Claim the Claimant pleaded that. by
reason of the publication of the said words the Claimant has been gravely injured in
reputation as a Barrister-at-Law and solicitor of the Eastern Caribbean Supreme Court as
well as his onice as Prime Minister and has been brought into public scandal, contempt
and ridicule and has suffered loss and damage.
(5) The Claimant claimed the f()llowing reliefs against the Defendants jointly
and scverall y:-
I. General damages for slander committed on the 291
h January 2007
2. Aggravated damages
3. Exemplary (sic)
4. An in junction (sic) preventing the Defendants \vhcthcr by themselves,
their respective servants and/or agents or howsoever otherwise from
further speaking or publishing the said or similar words defamatory of the
Claimant.
5. Cost.
6. Any further or other relief as the court thinks lit.
(6) l3y his Amended Defence liled on the 61
h July 2007. the 1 “1 Defendant
pleaded that the Claimant is a non-practicing Barrister-at-Law and Solicitor. He
denies paragraphs 6. 7, 8, 9, 1 0 and 11 of the Statement of claim and in particular
denies that the words complained of could hear the meaning ascribed by the
Claimant. lie contends that the words complained of constituted fair comment
and expressions of opinion made in good faith without malice upon mattes of
public interest. Further, that the said words were published in the exercise of
freedom of speech on the conduct of the claimant in his puhlic capacity of
Leader of the Unity Labour Political Party” and as Prime Minister and head of
Cabinet of the Government of Saint Vincent and the Grenadines.
(7) The 2nd Defendant in his Defence filed on the 23rd March 2007 pleaded:-
4
(i) In paragraph 5 that the words complained of were not understood
to bear or were capable of bearing any of the defamatory meaning
alleged by the claimant,
(ii) In paragraph 6, that the statements were published on an occasion
of qualilicJ privilege.
(8) By Notice of Application tiled on 8111 August 2009, the Claimant applied to
the Court for an Order pursuant to Part 26:3 of the Civil Procedure Rules
2000 (CPR) for an Order that the Defendant’s defences as tiled do not establish
reasonable defences to the action and should be struck out and Judgment
entered for Claimant for the payment of an amount to be decide (sic) by the
Court and costs.
(9) The application \Vas heard and the Court ruled:-
I. The defence is therefore struck out
2. Judgment is hereby entered for the Claimant as follmvs:
(a) Defendants are liable jointly and severally to the Claimant for
damages to be assessed.
(h) An injunction is granted preventing the Defendants w·hcthcr by
thcmsel\’es, their n:spective servants and/or agents or
howsoever otherwise from further speaking or publishing the
said or similar words dcf~lmatory of the Claimant.
(c) Prescribed costs to the Claimant based on the quantum of
damages awarded.
(10) No account was taken of Civil Procedure Rules 15:3(d)(ii) and its import
to this case.
(11) Civil Procedure Rules 15:3(d)(ii) states:-
The Court may give summary judgment in any type o(procc>edings
except.-
(d) Proceedingsjhr-
(ii) defamation
This hearing is one J()r del~tmation.
5
ISSUES
per
( 12) Judgment was therefore entered under Civil Procedure Rules 26:5 where
there is no right to enter such judgment.
(13) The import of Civil Procedure Rules 26:5 is that the Claimant must
prove his case even if there is no defence.
(14) There is a strong distinction between setting aside a judgment for
irregularity. in which case the Court has no discretion to refuse to set it aside
and setting it aside \vhere the judgment, though regular. has been obtained
through some slip or error on the part of the defendant, in which case the Court
has a discretion to impose terms as a condition of granting relief.
Fry, L.J., in A:–IALABY v PRAETOR JUS (I RRR) 20 Q.H.D. 764. AT
769 …………………………………………. .
(15) This judgment is an irregularly (sic) and ought to be set aside.”
[6[ The stated grounds 1 through 9 merely provide factual details and describe the events leading up entry
of judgment against the Defendants. They are nerther formulated as valid grounds which ground the
application before the court. They are accordingly disregarded for the purposes of arriving at the
decision in this matter except as far as is necessary to provide the chronological context within which
the application is made and was considered.
[7] Grounds 10 and 11 raise the issue of the relevance of Rule 15.3 (d) (ii) of the CPR to the instant case
and whether failure by the Learned Judge to give consideration to that Rule provides an opportunity to
and mandates this Court to set aside the Order whereby judgment was entered against the Defendant
for damages to be assessed and the subsequent order payment made for aggravated damages with
interest and costs.
6
[8] Grounds 12 and 13 challenge the alleged entry of judgment pursuant to Rule 26.5 of the CPR and
requires a consideration of whether this court can set aside that judgment entered pursuant to tha
Rule.
[9] Grounds 14 and 15 are concerned with the singular issue of the Court’s authority to set aside a
judgment which is entered irregularly, and in this case on the assertion that the judgment entered by
Order dated November 16, 2009 was an irregularity because it violated the requrrements of Rules
15.3(d)(ii) and 26.5 of the CPR.
SUBMISSIONS- DEFENDANT
[10] Counsel for the Defendant, Mrs Bacchus Browne, made oral submissions in this matter at the heanng
on June 25, 2014. These were substantially amplified in written submisSions filed on July 4, 2014 as
set out fulsomely below. In essence, Learned Counsel urged on the court in her oral submissions that
this Application is made under rule 26.6(1) of the CPR and that the Learned judge did not take into
account Rule 15.3(d)(ii) of the CPR which prohibits the court from entering summary judgment In a
defamation suit. Mrs Bacchus Browne contends that instead of entering judgment pursuant to rule
15.3(d)(1i), the Learned Judge should have set a date for trial and given the Defendant time to crossexamine
the Claimant as it was necessary for there to be a hearing. She cited the cases of Wilson v
Temujin International Limiteds, St. Lucia Motor and General insurance Company Limited v.
Modeste6 and Swain v. Hylton7 as authorities for the proposition that there is a distinct difference
5 HCVBVI2006/307
° Claim No. 8 of 2009
I [2001] 1 All E.R. 91
7
between striking out a Defence under Rule 26.3 of the CPR and entenng summary judgment under
Rule 15 of the CPR.
[11] Mrs Bacchus Browne’s written submissions were extensive and will be summarized below.
Essentrally, she submitted that
”The Issues to be decided arc:
I. Can judgment be entered lOr the claimant immediately upon striking out the
Defendant’s defence without a trial under Civil Procedure Rules 26:3 (I)?
2. What is the import of Civil Procedwe Rules 15:3(d}(ii)!
3. Docs it matter if the Claimant’s application is made under the Civil Procedure Rule
26:3? Is there a material difference between the tests under Civil Procedure Rules
15:3 and Ci\·il Procedure Rules 2ri ·]?
She states:
“It is significant that under Civil Procedure Rules 15: (3) there is a notation referring to Rule
20:3.” After quoting verbatim the provisions of Rules 26.3(1), 15.3 and 26.6(2) of the CPR
!.earned Counsel stated:
.. In the case of ANALBY AND OTHERS V PRAETORIUS 188 20 QBD 764- [Tab
IJ The ratio may be stated thus:
(a) “There is a strong distinction hetween selling aside a judgment for
irregularity. in >vhich case the court has no discretion to refUse to set it
aside and selling the judgment, though regular: has heen ohtained
through some slifJ or error on the part of the defendant, in which case
the court has a discretion to impose terms as a condition (~(granting
the defendant relief.””
Per Fry.
AT 769 ..
LJ. in ANALABY V I’KAETORIUS /1888/20 Qll./J 76./.
[12J Learned Counsel Mrs Hacchus Hrowne also submitted: ·’In Lennox Hunter ami Rttchae/
Caesar eta/ Parnel R. Campbell QC applied to lligh Court 6 years after to set aside a judgment
for irregularities. The damages were reassessed. fTah 2/
8
The judgment entered after striking out the defence in Gonsalves V.\· Thomas was therefore
entered irregularly without recourse to CFR l5.3(i)(d) and that part entering judgment for the
Claimant \Vith damages assessed ought to be set aside by virtue of CPR 26.6(2). Thus, the fact
that damages were assessed under an in·egular judgment cannot operate as a har to stop the
defendant Jfom seeking to set aside the judgment.
In the case of Curtis Zimmerman and RVJ Tourist Board 2009/388 .!. Bannister said at
paragraph 18. ··The judgment of 24th Decem her 2009 is irregular and is liable to be set aside.
In Troy Lewis tmd Constable Glendon Samuel Dominica 201010068. Lanns M. said at
paragraph 1 0 and 11:
10. Where a defendant can establish that the correct procedures hat•e not
beenfhl!owed in ohraininK}IIdKment, the deji!ndant can haw judgment set
aside as of right without the requirement of”eslahlishing a dej(mce to the
c/ainwnf ‘s claim. Here the court may set aside the judgment on or without
an application (Rule 1 3.2). Rule 20.6 (2) may be substituted here!”
!13) Learned Counsel added: ·’In the nue of Michael Wilson aud Partners Ltd and I Temujin
International Ltd eta/. J. Hariprashad- Charles as she then was dealt comprehensively with
this matter. Paragraph 4- 14 …… . {Tab 3]
Paragraph 4 5,’friking out is (?fien described as a draconian step, as it usua!!y
means that either the whole or JWrt of’ that party’s case is at an end The court
has two distinct powers to achievt: this. One is under CPR 26.1 where the court
can strike out a statement (~lease oj’part ~~lit if’! discloses no reasonable grounds
for hringing or defi::nding a claim; or where the statement of case or the part to be
struck out is an ahuse of’ the process oft he court or is likely to ohstruct the just
di:,posal (~/the proceedings. The phrase discloses no reasonable grounds j()r
bringing or JefCnding a claim addresses two situations.
Paragraph 5- The other power is under CPR 15. It gives the court the power to
enler sum matT judgment agaim·J a claimant or a deji!ndant •rhen that party has
no real prwpect (~/succeeding on the claim or defi:nce. Uudouhtedly, there i.f a
sub.ftantial overlap between the two pmver.f and an application can be made
under both rules, as the Applicants /rave done in the prewnt case. “
·These cases show that the distinction between the tests under Civil Procedure Rule 26 or Civil
Procedure 15 is most times indistinguishable.”
P4l Mrs Racchus Rrownc continued: ··The Defendant has not appealed the decision to strike out
the defence. Therefore he is stuck with that decision, however. that is not the end of the matter.
9
The learned Judge Remy at Para;;raph 56 of her ruling struck out the defence then proceeds at
paragraph 57 to enter judgment for the claimant. This is irregular.
In Richard Frederick and Luctu Frederick and Comptroller of Ctutoms and the Attorney
General. TICVAP 20081037 at paragraph 46 aud 47 George-Creque JA .mid: fTah 5f
{..fOJ!t does not appear that anyone directed their mind~ to Cl>R Part 15 ….
Quite apart fi-om the fCtct that summary judgment may not he ohtained on a fixed
date claim fhrm. it is similarly not ohtainable in re.\pect (~l proceedings fur
constitutional redress not, I might add fhr proceedinxs or claims axainst the
Crown. Dealing with a claim summarily doe.’l not mean entering summary
judgment. The claimant must ;o.·ti/1 pro~·e that he is entitled to the relief sought.
Therefore a trial must be conducted albeit in a summary way. “
[ 15] Learned Counsel for the Defendant further elaborated and stated: ··rr the court was dealing
with the Claim summarily because there is no defence then the Claimant must still prove he is
entitled to the relief sought. Therefore a trial must be conducted albeit in a summary way! This
\Vas not done in the present case instead the claimant had summary judgment entered. The matter
should have proceeded to case management under CPR 26 as was done in Frederick el a! cited
above.
“Dealing with a claim summarily under Civil Procedure Rule 27 or 26 docs not mean entering
summary judgment but requires a trial of the issues between the parties to be conducted in a
summary manner. The claimant Dr. Gonsalves must still prove that he is entitled to the relief
sought. Very importantly Gonsalves pleaded malice by paragraph IO(b) of his claim form and
exemplary and/aggravated damages. The Claimant ought to prove this by a trial on oath!!
Also sec Alexander v Arts council ol Wales 200 I I Wl.R I8..f0. /!so the case of Rooks v Barnard
(nul) 1964 ACI129. Exemplary damages arc not available as a matter of law unless a party
pleads that the defendant \Vas a public oflicial who acted oppressively. Sec paragraph 35 Lennox
Linfon v Anthony Astaphan (I’Ubmil!ed hy the Claimant.) /Tab 6/”
”It would be irregular to av..’ard exemplary and/or aggravated damages as was done without a
trial on malice. [Tab 7J for damages to be assessed, “The Claimant must adduce evidence that is
probative of malice and no! merely equall}y’ consistent trith its existence. ” Paragraph 55 Linton
l.ewis. Paragraph I 0 allegations pleaded hy the claimant against Matthew Thomas must be prove
by the claimant in order for him to be av..’arded aggravated damages as he was. The pleadings are
inadequate on the face of it to prove malice- sec l.ennox l.ewis paragraph fil and 62. ·•
f 16] Counsel for the Defendant also urged on the court that: “Lewi.~ v Anthony St. Lucia Civil
Appeal No 2!2006 is authority that ignorance of untruth is no basis for a plea of exemplary
damages. There is no evidence the defendant Matthew Thomas knew Reuben Morgan was
acquitted. or that /\lex Lawrence \Vas released, indeed there is no evidence that /\lex Lawrence
10
was indeed released! Paragraphs 1U(b) (v) (vi) and (vii) of the pleadings are Otiose unless
cogent evidence is offered to prove it and h:stcd under cross-examination.
··rn Talford Roberts and Anesta Ou!’; Hump/trey. 1. St. Vincent case, the appellant submitted
this:
(i) By s!riking oul the Appellant’s defence and counterclaim, .Justice Remy in
essence summarily determined the case and as such. she erred in this
rexard as summary judgment is not required to he given in fixed date
claims pursuant to part 15.3 (h) (?(the CPR 2000.
“On appeal the Court of Appeal stated the issue “as whether or not a trial Judge can enter
summary judgment or judgment in default or a fixed date claim form, CPR 15.3 (c)”. The
same issue ns before the court here. The defence had been struck out~ The court of appeal held:
The appeal is allowed and the order set aside.
J The timefhr.flling a de.fi!nce to the statement of claim is J -1 days .fi·om today ‘s
date provided that the costs ordered in paragrc1ph -1oft he order of this court
made on 291
h .March 2012 is pahi no later than Friday R1
h June 2012.
2. There shall be no costs in the appeal. fTah RJ”
‘”The case of Talford Roberts am/ Anesta Cass Humphrey is on all fours with the present case.
The only ditTcrcnce is that in the T;.tlford Robc11s the defendant failed to file a defence on time,
atlcr repeated orders to do so, then filed a defence of bare denials contrary to part I 0:5(5) exactly
as alleged by the Claimant in this case (see paragraph 16 of the judgment of Justice Remy).
·’The learned Judge Remy in Talford Roberts, upon submissions to strike out the defence for
disclosing no reasonable ground for defending the claim under CPR 26:3 (b) and for tirst hearing
under CPR 27:2 (3), without having a summary trial, proceeded to give judgment for the
claimant just like in the present case. (81:’1:’ copil:’s of” the transcript oft he court in Talfhrd
Roherts) [Tah 9J. The record of appeal \Vas out of time, Court of Appeal orders were ignored.
Yet, the Court of Appeal set aside thc.judgmcnt and ordered further time for the defendant to tile
a defence, because of Civil Procedure Rule 15 prevented summary judgment.”
··[n the case of” Richard Williams Lexhartlnc. vs Olin Dennie Me Connie Yammie Ltd St. Vincent
f!C 22-1/2006 {Tab 10/, the case ofJ’.’dwardo Lynch vs Ralph Gonsalves was discussed.
“The case of Richard Williams is signiticant for two reasons: It showed lhat even if a defence
has been struck out or treated as being struck out, a trial can be proceeded \Vith.”
[17] Learned Counsel for the Defendant also contends: “In the Edwardo Lynch case HCVAP
20091002 the facts states that “Justice Thom held !he appellants (Lynch) had no prospect (~l
11
succeedinK in any of’ the defences and stuck them out. Summary Judgment was entered for
the appellants with damages to be assessed.” See [Tab 11]
”This was clearly wrong since the application before the court was identical to the application in
the present case part 26.3(i). To enter summary judgment was contrary to CPR 15.3. The fact
that witness statements were filed as well as documentary evidence in Lynch’s case does not
cure the irregularjudgment. In any event Edwardo Lynch did not consider the irregularity or not
of the summary judgment. .!.he ration of the case \’.-‘as about assessment of damages.
“In the other case Civil Appeal 18/2005 t:dwardo Lynch v.\’ Uonsah·es the issue of CPR 15:3 was
also not considered and as stated above Richard Frederick vs Comptroller of Customs docs not
agree with the position of Justice Barrow at paragraph 11 and 12 of the :!005 Gonsalves
judgment. Richard Williams vs Olin Dennie et alfbl/owed Richard Frederick.
l18j Learned Counsel for the Deft:ndant concluded her written submissions with the following:
“As stated above there was no appeal against the decision to strike out the defence in Matthew
Thomas’s case. This decision must stand but the irregular part of the decision, the summary
judgment must be set aside. As stated we are not challenging the order to strike out the defence.
There is no discussion on a provision like CPR 15:3 in our mles.
“Lennox Linton and Anthony Astaphan
This case underscores the need fOr a trial for the Claimant to prove his case especially as the
claimant pleaded malice and exemplary and aggravated damages sec paragraphs 35, 54, 55, 61,
62. The meanings and damages of the words pleaded by Dr. Gonsalves a\ paragraph 6 and I 0 of
his claim arc prolix, un-particularizcd. cmotivc and pejorative. He pleaded allegations which arc
equivocal and cannot sufTicicntly establish malice. It would be .:ontrary to the interest of justice
to Jet this irregular judgment for aggravated damages to stand without a trial for the claimant to
prove his case. More over (sic) in S’t. Lucia Aiotor and General lnsumnce Co. I.rd \’S Peterson
lvfodesle. George-Creque Justice of Appeal held
“Summary judgment should only he gran!ed in cases u·here it is clear that a claim on its
face obviously cannot he sustained, or in some olher way is an ahuse qj”the process of’!he
court. fYhat must bee sho·wn is that the claim or the de.fCnce has no “real (ie realistic as
opposed to fancijid) prmpect of success. llclving regard lo the deficiency (~l the
pleadings and the evidence. the defence (~f.fi”audlilfega!ity is unlikely to meet with any
degree of success so that the case is a suitahle one fhr the ent1:y summary judgment
”This is what Justice Remy did entered summary judgment in a defamation matter. Justice
George-Creque was speaking generally (except in CPR 15:3) cases). Thus the decisions in Ralph
Gonsalves vs El1,1.’ardo Lynch and similar cases have no application since the issue of CPR 15:3
was not addressed as it was in Richard Frederick’s case. The judgment ought to be set aside and
12
case management directions given \Vith costs to the defendant. The Cact that a ruling found that
the words used by the de!ence are capable of being defamatory does not guarantee the finding of
defamation without a trial albeit summarily.”‘
SUBMISSIONS- CLAIMANT
[19] Learned Counsel for the Claimant Mr Boilers also made oral submissions which he
supplemented with written authorities filed at the registry on June 25. 2014. Unfortunately.
those authorities were misplaced and that mishap did not come to the undersigned’s
attention until the day before the date set for delivery or this decision. This decision is
accordingly prepared without the benefit of those submissions. For this, the court apologizes
to Counsel for the Claimant and to the Claimant.
r20] Mr Rollers directed the court’s attention to paragraph 12 of the judgment of Justice Rcmy
and indicated that the application to strike out was made pursuant to Rule 26.3 and not Part
15 or the CPR. lie submitted that the Defendant’s contention that an application for
summary judgment was made by the Claimant under Part 15 has no basis in fact or in law.
He submitted further that Rule 26.3 of the CPR empowers the court to strike out a claim
without recourse to Part 15. each being separate and distinct applications. Counsel submitted
further that an order on assessment of damages \Vas delivered by the Learned Master in
2012, rendering this courtfimcfus with no open issues left for determination by this court.
He submitted further that the proper avenue to be pursued by the defendant for rc!icfw·as by
way of appeal of the interlocutory order in 2009 or the final order in 2012. It is the
Claimant’s submission that the application should be dismissed with costs of$ 1200.00.
13
LAW ANI> ANALYSIS
[211 The applicable provisions of the CPR are rules 12.2, 12.5, 12.10 (I) (b), 13.2 (I) (b), 13.3
(I), 15.1. 15.2, 15.3 (c) & (d) (ii), 26.3 (I) (b), 26. 5 (I) and 26.6 (I). They provide:
·· 12. 2 A claimant may not ohtain default judgment !/’the claim is(
hj A fixed date claim:
“12.5 The murt office at the request of the claimant must enter judgment
fOr failure to defi.!nd if~
(a) (i) the claimant proves sen•ice of the claim f(mn and siOtement of
claim. or
(ii) An acknoli’/edgment of service has heen filed hy the defCndant
a}!,ainst whom judgment is sought
(h) The periodfiJrjifing a dejence and an}’ ex/ens ion agreed by the parties
or ordered hy the court has expired:
(c) The de/(!ndant has not-
(i) filed a defimce to the claim or any part of it ….
(ii)
(iii)Sati.~jied !he claim on u·hich the claimant seeks judgment. and
(iv) ([f’necessmy) the claimant has the permis.< ;ion of the court to enter
_judxmenl.
“1 2.10 (I) Dej(m/t judgment on a claim fhr-
(b) an unspec(/ied sum of money- must be _judgment for the payment
o/an amount to be decided hy the court;
“1 3.2 (l) The court must set aside a judgment entered under !’art 12 i(judgmenl was

1-rongly entered hecause in the case qf
(h) judgment fhrfhilure to defi.:nd any qf”the conditions in rule 12.5 was
not sati.sjied
‘”13. 3 (I) flrule 13.2 does not apply, the court may set aside a judgment entered under
Part 12 only i(the defi.:ndanl-
(a) applies to the court as soon as reasonably pracOcab/e qfter.finding out
that judgment had heen entered:
(h) Rives a f{Ood explanationfhr the failure tofi/e an acknowledgment of”
service or a defi.:nce as the case may he; and
14
(cj has a real prospect (~(.1w.xessjid/y defi:nding the claim.
15.1 This Part sets out a procedure by which the court may decide a claim or a particular
issue without a tria/_
15.2 The court may give swnmaryjudgmenl on the claim or on a particular issue !lit
considers that !hi:!
(aj clahnant has no prospect ofsucceeding on the claim or the is.we, or
(hj defCndanl has no real prospect o{succe.\4i1fly de.fi:nding the claim or the issue.
• Rule 26.3 gi1•es the court powa to sn·ike out the \’hole or par/ (!fa statement of case if it
discloses no reus unable grounrljOr hringing or defending the claim
I 5. 3 The court may gil·e summary judgment in any !Jpe (?f]Jroceedings except{
c)proceedings by ‘IWIJ’ offixed date claim.
(d) proceedings fhr-
(iij defamation:
26.3 (lj In addition to any other fJOwer under tht:se Rules. rhe court may strike out a
statement of’case or pal of statement oj’ca.1·e if’ it appears to the court that(
h) the statement f?lcase or the part to be struck out does not disclose any
reasonable groundfhr hringing or defi:nding u claim;
26.5 (/)This rule applies where the court makes an order which includes a term that the
statement o{case of’ a party he struck olll ifthe party does not comply 1vilh the
“unless order” bJ’ the SJ?ecified date.
26.6 {I) a party against H’hom !he court has enteredjudgment under rule 26.5 when the rixht
to enter judgment had not arisen may apply to the court to set if aside.”
[22] This Application raises a number of issues foremost of \Vhieh is whether a judge can set
aside a judgment made in error (whether of law or fact) by a judge of concomitant jurisdiction.
The Privy Council decision of Lcymon Strachan v. The Gleaner Company & Anors is
authority for answering that issue in the negative. At paragraph 32 of that decision. Lord Millett
opined:
.. The 5:upreme Co uri of’Jamaica. like the High (‘our/ in l:’ngfand, is a superior court or
court (~(unlimited jurisdiction, that is to say, it has jurisdiction to determine the limit.<,·
8 [2005] UKPC 33
15
oj’ifs own jurisdiction. Fmm time to lime, ajudge t~f’the .)’upreme Court \Vill make an
error as to the extent of’ his jurisdiction. Occasiona/(r … his jurisdiction will have been
challenged and he will have decided qjier wgumenr that he has jurisdiction: more ojien
… he will have exceeded his jurisdiction inadvertent(v. its absence having passed unnoOced
!Jut·whenerer a judge makes an order he musl he taken implicitly to have
decidud that he has jurisdiction to make il. {j’he is 1rrong he makes an error whether of
law orfGct which can he corrected hy the Court of Appeal. But he does not exceed his
jurisdiction hy making the error. nor does a judge (?f co-ordinate jurisdiction have
power to correct it.”
l23j The Defendant in the instant case seeks an order setting aside the decision of Justice Remy
where she entered _judgment either in default of defence or summary _judgment against the
defendant, in circumstances where the defendant was represented by experienced counsel who
neither made submissions on the application before the court nor sought to appeal the decision in
accordance with the CPR. The decision in Strachan v. The Gleaner Company precludes this
court from setting aside that decision for the reasons stated by Lord Millett. I so lind.
l24J If perchance I am wrong hovvever, the court must consider the other issues which have been
identified above. I will proceed to address each of them. The defendant relics on Rule 15.3 (d)
(ii) of the CPR to invalidate the order of Justice Remy whereby judgment was entered tOr the
Claimant by a finding that the Defendants are jointly and severally liable to the Claimant for
damages to be assessed. The defendant correctly nsserts that Rule !5.3 (d) (ii) prohibits the court
from entering summary judgment in proceedings by way of fixed date claims and also in
proceedings for defamation. The instant case is both a fixed date claim and a defamation suit.
Interestingly, the CPR contains no provisions empowering the court to set aside a summary
judgment. In addition, the Defendant has not identified any legal authority which suggests that a
judge of the High Court is empowered to set aside a summary judgment. All of the legal
authorities presented by the Defendant<) on this issue relate to judgments entered in default of
defence or acknowledgment of service or summary judgments set aside by the Court of Appeal.
[25] In any event, even if the Court can entertain an application to set aside a summary judgment
the successful applicant must sunnount the hurdle of satisfying the requirements of Rules 26.6 10
(3) and 26.8 of the CPR which stipulate that the application must be:
(l) made promptly 11
;
9 Anlaby v. Praetorius 1888 20 Q.B. 764; lennox Hunter v. Rachael Caesar et al Claim No. 317 of 2006; Richard
Frederick v. Comptroller of Customs HCVAP 2008/037;
10 Or 26.6 (1) & (2) dealt with subsequently in the judgment
16
(2) supported by evidence on affidavit;
(3) satisfy the court that:
{i) the failure to comply was not intentional;
(ii) there is a good explanation for the failure; and
(iii) he has generally complied with all other relevant orders. rules, practice directions,
directions;
Conditions (1), (2) and (3) (i) and (iii) arc self- explanatory. What is a .. good explanation”
depends on the circumstances of each case. \Vithout defining the expression, the Privy Council
in the case of The Attorney General v. Universal Projects Limitcd 12 opined ··if the
explanation liJr the breach … connotes real or substantial htult on the part of the defendant, then
it does not have a good explanation … “. The defendant in this case has not provided aftidavit
evidence \Vhieh is supportive of any of these conditions. The Application is extremely tardy and
there is no evidence in it to explain the deJendant’s tardiness or to indicate that this was not
intentional. His application accordingly fails on this ground as it provides no basis on which to
set aside the Honourable Judge’s order.
[261 The defendant at grounds 12 and 13 of his application assert that the entry of judgment was
made pursuant to rule 26.5 of the CPR. An examination of that rule however illustrates that this
is incorrect. By sub-rule ( 1) of Rule 26.5. that Rule is invoked only if the court makes an ”unless
order” stipulating time for compliance. The factual matrix in this case does not include an
“unless order.” In the premises. neither Rule 26.5 nor rule 26.6 (l) & (2) are applicable to the
instant case. The ddCndant’s application to sl’l aside the judgment would therefore fail on
grounds 12, 13, 14 and 15 as the judgment \Vas not entered under Rule 26.5 of the CPR.
1271 The dcJCndant’s submissions obliquely touch on entry of a default judgment under Part 12
of the CPR. For completeness, suffice it to say that the defendant \vould not be able to avail
himself of an order to set aside the judgment under rule 12.5 (even if a default judgment was
entered) 13
. It is trite law that an applicant seeking to obtain an order under rule 12.5 to set aside a
default judgment must satisl)’ the three conditions outlined at rule 13.3 (1 ):
(l) applies as soon as reasonably practicable after learning that the judgment has been
entered;
l: Depends on the circumstances of the case- Louise Martin (as widow and executrix of the Estate of Alexis
Martin, deceased) v. Antigua Commercial Bank
11 [20111 UKPC 37
:
3 1t is clear that a default judgment was not entered as the judgment made no reference to entry of a default
judgment
17
(2) gives a good explanation Cor failure to file acknowledgment of service or defence; and
(3) has a real prospect or defending the claim.
These conditions are conjunctive and mandatory –see Louise Martin as widow and executrix of
the Estate of Alexis Martin, deceased) v. Antigua Commercial Bank. 14 The defendant obviously
did not satisfy any of the conditions. Rule 13.3 docs not assist him for the reasons advanced
above.
1281 The Defendant raised a tev,., matters in his written submissions which go outside of the
ambit of the Application as tiled and venture into the realm of appeal proceedings. They have not
been addressed as it is inappropriate for this court to entertain them.
ORDER
[29] For the foregoing reasons, this case is not one wh1ch lends itself to the grant of the reliefs sought It
is ordered as follows:
1. The Defendant’s application for an order setting aside the judgment is dismissed.
2. The Defendant shall pay the Claimant costs of $120000.
Esco L Henry
HIGH COURT JUDGE (Ag.)
14 ibid
18