Luenda Billingy Plaintiff v Mark Smith Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Baptiste J.
• Judgment Date: 22 April 1998
• Judgment citation (vLex): [1998] ECSC J0422-1
• Date: 22 April 1998
• Docket Number: SUIT NO.: 108 OF 1995
• Court: Supreme Court (St Vincent and the Grenadines)

[1998] ECSC J0422-1

SUIT NO.: 108 OF 1995

Between:

Luenda Billingy

Plaintiff

and

Mark Smith

Defendant

RULING

Baptiste J.

1 This is an application by the defendant by way of summons for an order to stay execution on a consent judgement dated 16th July, 1996 until final determination of High Court Suit Number 87 of 1998.

2 The ground of the application is that the defendant has instituted the proceedings in Suit No. 87 of 1998 to set aside the consent judgment as he was induced by the plaintiff to settle her claim for the amount set out in the judgment by fraud and misrepresentation. The application which is made under Order 66 rule 11 of the Rules of the Supreme Court, is supported by the affidavits of the defendant and Keith Boyea sworn to and filed on the 20th February, 1998 and 18th March, 1998 respectively.

3 Order 66 rule 11 states:

"Without prejudice to order 68 rule 1, a party against whom a judgment has been given or an Order made may apply to the court for a stay of execution of the judgement or order or other relief on the ground of matters which have occurred since the date of the judgementor order, and the court may by order grant such relief, and on such terms, as it thinks just."

4 The facts of the case so far as material are as follows: By a specially endorsed writ of summons filed at the High Court Registry, on March 29, 1995, the plaintiff commenced proceedings against the defendant for personal injuries which arose out of an accident on the 16th of July, 1993.

5 The defendant's insurance company Caribbean Insurance Company Limited assumed responsibility for his defence, and on the 16th July, 1996 a consent judgement was entered for the plaintiff in the sum of $55,000.00 and $5,000.00 costs.

6 The insurance company paid the plaintiff the sum of $25,000.00 and $5,000.00 costs to her solicitor. These sums were paid on the 23rd and 24th of July, 1996 respectively. The remainder of the judgment debt is still to be satisfied.

7 The defendant is resisting further payment and has also applied to the High Court to set aside the consent judgement, both on the ground of fraud.

8 In paragraph 4 of the affidavit of Mark Smith it is stated inter alia:

"I am informed by Mr. Boyea and verily believe the same to be true that upon investigating the authenticity of the medical documents obtained in the United States, it was discovered that the defendant's medical expenses had been paid by Medicare in the United States of America and her hospitalisation was in no way related to the accident."

9 That is refuted by the plaintiff in paragraph 1 (f) of her affidavit sworn to on March 10,1998 and filed on 11th March, 1998.

10 Keith Boyea, manager of Beacon Insurance Company Limited formerly Caribbean Insurance Company Limited in his affidavit filed on 18th of March, 1998 stated in paragraph 9 the following:

"My company has discovered from the hospital, where the Plaintiff claims that she was treated, that her medical bills were paid by her medical insurance and not by her as she claimed. Furthermore by letter dated 20th March, 1995, Mr. Arthur Williams wrote a letter to the Defendant which was copied to me alleging that the Plaintiff had not been able to return to work until 1st November, 1993. Annexed to that letter is a letter from one Lucille Benson a Personnel Consultant for the City of New York in which she claims that the Plaintiffs health insurance hadbeen cancelled since July 16th, 1993" (copies of the said letters are exhibited herewith and marked "KB2" and "KB3" respectively).

11 In paragraph 10 of his affidavit Keith Boyea states:

"Upon investigation with U.S. Health Care, it was discovered that the Plaintiff was medically covered from 19th October, 1993, to 1st April, 1994 which meant that she was employed during the period when she claims not to have worked. In the premises the Plaintiff has clearly lied when she claimed to be entitled to special damages of some $14,366.00 for loss of earnings."

12 Mr. Boyea states in paragraph 11:

"Based on misrepresentations made by the Plaintiff, my company was induced to consent to paying to her a sum representing $36,229.25 for loss of wages and reimbursements of medical expenses none of which she had spent or loss…"

13 The plaintiff filed an affidavit in reply to the affidavit of Mark Smith, on the 11th March, 1998.

14 When the summons came up for hearing learned counsel for the plaintiff Mr. Robertson stated that he was taking some preliminary objections to the application. Mr. Robertson's submissions can be summarised thus:

• (1) The action is barred by laches, acquiescence and lapse of time.

• (2) There is no material before the court to enable the exercise of a discretion to grant a stay.

• (3) Section 16 of the Motor Vehicles Insurance (Third Party Risks) Act Chapter 356 delimits the time within which the insurance company ought to exercise their option as to whether they should challenge the judgment. The defendant is therefore barred from bringing the action.

15 In dealing with the submission of Mr. Robertson with respect to the Motor Vehicles Insurance (Third Party Risks) Act Cap 356, Mr. G. Boilers counsel for the defendant submitted that there is no provision of section 16 which is applicable to the...