Marcus Trimmingham and Sylvia Trimmingham v CCA Ltd and Adolphus Corridon

• Jurisdiction: St Vincent and the Grenadines
• Judge: Moise, M.
• Judgment Date: 19 September 2018
• Neutral Citation: VC 2018 HC 57
• Court: High Court (Saint Vincent and the Grenadines)
• Docket Number: CLAIM NO: SVGHCV2014/190
• Date: 19 September 2018

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Moise, M.

CLAIM NO: SVGHCV2014/190

Between:

Marcus Trimmingham Sylvia Trimmingham

Claimants

and

CCA Limited Adolphus Corridon

Defendants

Appearances:

Mr. Duane Daniel with Ms. Jenelle Gibson for the claimants.

Mr. Grahame Bollers for the 1 ^st defendant.

Legislation:

CPR r. 12.9

Civil Practice and Procedure - Default judgment — Election and merger — Functus officio — Whether court ought to have considered r. 12.9 of CPR when determining application of 2nd defendant to set default judgment aside — Whether court functus officio — Whether claimants made election preventing them from proceeding to trial against 1st defendant

Moise, M.

1 The claimants are the parents of Chesley Trimmingham who, unfortunately, died as a result of an accident at work on 21 ^st October, 2011. They have brought this action against the defendants for damages pursuant to the Compensation for Injuries Act 1. As it relates to the liability of the defendants, the claimants assert the following at paragraphs 5 to 7 of their statement of claim:

(5) At all material times the Deceased, was employed by the 1 ^st Defendant, absolutely, to work on a construction site at Godhal Bay, Canouan in the State of Saint Vincent and the Grenadines.

(6) Alternatively, at all material times the Deceased, Chesley Trimmingham, was

employed by the 1 ^st Defendant through its agent the 2 ^nd Defendant, to work on a construction site at Godhal Bay, Canouan in the state of Saint Vincent and the Grenadines.

(7) Further in the alternative, at all material times the Deceased, Chesley Trimmingham was employed by the 2 ^nd Defendant, a subcontractor of the 1 ^st Defendant.

2 The defendants were duly served copies of the claim form and statement of claim and neither of them filed a defence within the time prescribed by the Civil Procedure Rules 2000 (CPR). As a result of this, the claimants requested and obtained judgment in default against both defendants. The default judgment was granted on 13 ^th February, 2015. Both defendants subsequently filed applications to set the default judgment aside. In the preamble to her order dated 14 ^th April, 2015 the master noted that there was no objection from the claimant to the application of the 1 ^st defendant. On that basis the default judgment entered against the 1 ^st defendant was set aside. The application of the 2 ^nd defendant was adjourned due to the absence of counsel for the 2 ^nd defendant.

3 The application of the 2 ^nd defendant came up for hearing on 15 ^th April, 2015 and was denied. In her preamble to that order, the master stated that the 2 ^nd defendant had failed to satisfy the court that there was a good explanation for his failure to file a defence within the time prescribed by the CPR. Indeed, the 2 ^nd defendant grounded his application on CPR13.3(1) and in so doing needed to satisfy the court that all of the requirements for setting aside a default judgment under that rule were satisfied. The effect of these 2 orders however, was that a claim which has been filed in the alternative is now to proceed to trial against the 1 ^st defendant only, in circumstances where a judgment in default has already been obtained against the 2 ^nd defendant.

4 When this matter first appeared before me on 10th April, 2018 for case management, a number of issues were raised both from the bench and from counsel on behalf of the 1 ^st defendant. These issues now fall for consideration by the court. I have summarized them as follows:

• (a) Given that the claim involves more than one defendant, should the court have considered the provisions of 12.9 of the CPR when determining the application of the 2 ^nd defendant to set the judgment in default aside?

• (b) Following on from (a), is the court now functus officio in giving consideration to this issue?

• (c) Have the claimants made an election in securing judgment against the 2 ^nd defendant, which now prevents them from proceeding to trial against the 1 ^st defendant as submitted by counsel for the 1 ^st defendant?

RULE 12.9 OF THE CPR

5 The CPR makes specific provision for the factors which are to be considered in circumstances where a judgment in default is being entered against one defendant in a claim brought against multiple defendants. The rule states as follows:

12.9. (1) A claimant may apply for default judgment on a claim for money or a claim for delivery of goods against one of two or more defendants and proceed with the claim against the other defendants.

(2) If a claimant applies for a default judgment against one of two or more defendants, then if the claim –

• (a) can be dealt with separately from the claim against the other defendants –

  • (i) the court may enter judgment against that defendant; and

  • (ii) the claimant may continue the proceedings against the other defendants;

• (b) cannot be dealt with separately from the claim against the other defendants, the court –

  • (i) may not enter judgment against that defendant; and

  • (ii) must deal with the application at the same time as it disposes of the claim against the other defendants.

6 In this case the claimants made their request for judgment in default against both defendants. However, both defendants made separate applications to have this judgment set aside. Having then consented to setting aside the judgment in default against the 1 ^st defendant, the provisions of Rule 12.9 ought to have been a consideration when the court came to address the question of whether the judgment in default ought to have been maintained against the 2 ^nd defendant. Consideration had to be given to the question of whether the case could have been dealt with separately from the claim against the other defendants. In the case of Development Bank of Saint Kitts v. Brian Browne et al2, Ramdhani J(ag) addressed the issue in this rule and stated that “rule 12.9(2)(b) will also be relevant to cases where it would be inappropriate to grant default judgment against one defendant when the case against the remaining defendant could not be disposed of on the merits, without an examination of the case against the defaulting defendant.” His Lordship examined the facts in the case of Crown Aluminium Ltd v. Western Insurance Company Ltd3 and drew from that case the proposition that “the court had to deal with any application for default judgment against one defendant at the same time as it disposed of the claim against the other defendant.”

7 Whilst I generally appreciate the conclusion in the case of Crown Aluminium Ltd., I am of the view that the approach must give consideration to the peculiar facts of each case. In a circumstance where one defendant has not only failed to file a defence but does not participate in the proceedings at all, it may be entirely appropriate to consider the application for judgment in default at the end of the trial against the other defendant. However, in a case such as the present, where both defendants have approached the court to set aside the judgment in default, it may not be just and equitable in all circumstances to allow one defendant to defend the case and deny the other “ when the case against the remaining defendant could not be disposed of on the merits, without an examination of the case against the defaulting defendant.” Rather than waiting to consider the issue at the end of the trial, the court should give consideration to the provisions of 12.9 prior to the commencement of the trial and in the appropriate circumstance, allow the defaulting party the opportunity to put things right and to participate in the proceedings.

8 Here the claimants have filed their claim in the alternative. Essentially the claimants assert that the deceased was employed by the 1 ^st defendant absolutely. Alternatively, it is claimed that the 1 ^st defendant was the employer of the deceased as a result of an agency which existed between the 1 ^st and 2 ^nd defendants. Finally it is asserted, as an alternative to the first two propositions, that the deceased was the employee of the 2 ^nd defendant as a subcontractor. It is difficult to see the circumstances under which the 1 ^st defendant can be held liable for the death of the deceased, either as employer in its own right, or as principal within an agency, without examining the case against the 2 ^nd defendant. If the 1 ^st defendant is held to be liable as employer then it means that the 2 ^nd defendant cannot be liable for the death of the deceased; and yet a judgment in default has already been entered against him.

9 It would seem clear at this stage, that I am of the view that Rule 12.9 ought to have been addressed when considering the application of the 2 ^nd defendant to set aside the judgment in default entered against him. No doubt, this issue was not raised before the master as the 2 ^nd defendant premised his application on Rule 13.3(1) of the CPR. This was understandable as at that point judgment had been entered against both defendants. However, when the claimants consented to setting aside the judgment in default against the 1 ^st defendant, the provisions of Rule 12.9 became relevant if they were to have proceeded to object to the 2 ^nd defendant's application to set aside the judgment in default. It is unfortunate that neither party, nor the court, raised the issue at the time.

10 After this issue was canvassed at the case management hearing I considered the statement of Ramdhani J in Development Bank of Saint Kitts v. Brian Browne et al, where he states the following at paragraph 51:

“I dare say that if default judgment has been granted in anysuch case where there has not been this exercise conducted by the court, the default judgment, if it has not been acted upon, should be set aside on the court's own motion, as it would have been improperly entered, and such an...