Doreen Leslie Claimant v Bradley Davis Lex Clayton Davis Defendants [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Thom, J
• Judgment Date: 21 September 2006
• Judgment citation (vLex): [2006] ECSC J0921-2
• Court: High Court (Saint Vincent)
• Date: 21 September 2006
• Docket Number: HIGH COURT CIVIL CLAIM NO. 47 of 1998

[2006] ECSC J0921-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

HIGH COURT CIVIL CLAIM NO. 47 of 1998

Between:

Doreen Leslie

Claimant

and

Bradley Davis Lex Clayton Davis

Defendants

Appearances:

Mr, Richard Williams for the Claimant

Mr, Emery Robertson for the Defendants

RULING

Thom, J

[1] This is an application to set aside a judgment in default of defence.

[2] On January 28, 1998 the Claimant filed a writ of summons in which she claimed the following reliefs:

• (a) A declaration that the Plaintiff is a tenant in common of the said premises.

• (b) An order cancelling the Possessory Title registered as 3153 of 1998.

• (c) An order cancelling the Deed of Gift registered as No. 1199 of 1989.

• (d) An order cancelling the Deed registered as No. 161 of 1994.

• (e) An order partitioning the said parcel of land.

• (f) Such further or other relief.

• (g) Costs.

[3] The First named Defendant entered appearance on the 11^th day of March 1998.

[4] On 19^th day of March 1999 the Claimant filed a Motion for Judgment in default.

[5] Notice of hearing was filed on the 5^th day of May 1999 for hearing of the matter on the 13^th day of May 1999,

[6] On the 13^th May the matter was adjourned sine die for settlement.

[7] On April 4,2003 at Case Management Conference at which both Counsel for the Claimant and the Defendants were present, the Master ordered that the matter be removed from the Case Management Conference list.

[8] On the 27^th day of July 2005 on the application of the Claimant the Court ordered that judgment in default of defence be entered.

[9] On the 20^th day of August 2005 the Defendants filed an application seeking to set aside the judgment in default on the following grounds:

• (a) The matter is deemed abandoned and incapable of revivor since 27^th January 1999 in accordance with the Rules of the Supreme Court Order 34 Rule 11(1) of 1970, the Claimant having failed to comply with the provisions of Order 34 Rule 11(a)-(c).

• (b) The judgment was entered irregularly since the action was incapable of revivor.

• (c) The proceedings were old proceedings having been commenced before the Civil Procedure Rules 2000 and were not saved by the Transitional Provisions under CPR 2000 Part 73.3.

• (d) The matter having come on irregularly for Case Management Conference before Master Brian Cottle on the 4^th day of April 2003 an Order was made that the matter be removed from the Case Management Conference list.

• (e) The application was made without notice to the Defendants or their Counsel and is contrary to law and wrong.

• (f) Part 12:10 (4) of CPR 2000 is inapplicable to this instant case since the matter was non-existent.

• (g) Before a Court grants a declaration it must hear evidence, the Order was therefore a nullity and ought to be set aside under Part 13.3 and under the inherent jurisdiction of the Court.

[10] I will deal with submissions (a), (b), (d) and (f) together since they are all based on the premise that the matter was abandoned.

[11] Learned Counsel for the Defendants submitted that the matter having commenced on January 28,1998 the matter was automatically abandoned pursuant to Order 34 Rule 11 of the 1970 Rules of the Supreme Court. While learned Counsel for the Claimant submitted that the matter was not abandoned CPR 2000 applied and relied on the decision of the Court of Appeal in Rudolph George and Ivan Chimney; Cyril Ramsey v Lucia Penn and Calvin Penn Civil Appeal Nos. 14 and 15 of 2002 BVI.

[12] In the Rudolph George'scase the Court of Appeal considered the issue whether a matter which was commenced prior to CPR 2000 and in which more than one year had elapsed since the last proceeding the matter was automatically abandoned pursuant to Order 34 Rule 11 of the 1970 Rules. The Court held that there was no automatic abandonment of a matter pursuant to Order 34 Rule 11 of the 1970 Rules. Redhead JA stated at paragraph

"In my considered opinion there would have been no suit in existence if there was an automatic dismissal of the suit on 27^th July 1999 but from the authorities referred to above Frett v Davis (supra) Isaacs v Robertson the dismissal of the suit can only occur when the application is made for an order deeming the matter abandoned."

Saunders JA as he then was stated at paragraph 59:

"I think the cases referred to by my brother Redhead JA illustrate that a matter was never automatically deemed abandoned. Neither the Court nor the litigant could assume that because a certain set of events had occurred, a matter was ipso facto abandoned. The matter was still alive up to the point in time a Court ordered that it had been deemed abandoned."

And at paragraph 60:

"The new CPR 2000 having repealed the Old Rules, the opportunity to argue that a matter has been deemed abandoned pursuant to Order 34 has been thereby removed. There is now no rule in existence pursuant to which a litigant can ask a Court to deem a matter abandoned."

[13] Applying the above principles to this case no application was made under Order 34 Rule 11 prior to the coming into effect of CPR 2000 for the matter to be deemed abandoned. CPR 2000 having repealed the Old Rules the Defendants cannot now ask the Court to deem the matter abandoned pursuant to Order 34 Rule 11. I find that the matter was not abandoned on the 27^th July when the Order was made for judgment in default of defence.

[14] The Defendants' submission at paragraph (c) that since the proceedings were commenced before CPR 2000 came into effect and were not saved by CPR 2000 Part 73.3 is without merit. Part 73.3 provides:

"These Rules do not apply to proceedings commenced before the commencement date in which a trial date has been fixed unless that date is adjourned."

[15] In this case no trial date was fixed prior to the coming into effect of CPR 2000. indeed it is not disputed that no defence was filed.

[16] The Defendants' submission at paragraph (e) that the application was made without notice and is contrary to law and is wrong is also without merit. An application for judgment indefault of defence may be heard without notice pursuant to CPR 2000 Part 12.10.5 which reads as follows:

"An application for the Court to determine the terms of the judgment under paragraph (4) need not be on notice but must be supported by evidence on affidavit and rule 11.15 does not...