Moses Stay v Massy United Insurance
| Jurisdiction | St Vincent and the Grenadines |
| Judgment Date | 26 July 2022 |
| Neutral Citation | VC 2022 CA 23 |
| Docket Number | CLAIM NO: SVGHCV2020/0039 |
| Year | 2022 |
| Court | High Court (Saint Vincent) |
CLAIM NO: SVGHCV2020/0039
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Mrs. Kay Bacchus-Baptiste for the Claimants/Respondents
Ms. Chanté Francis of Duane A. Daniel Chambers for the 3 rd Defendant/Applicant
This is the court's decision on an application to set aside judgment in default of acknowledgement of service.
On 1 st April 2020, the claimants filed a claim form and statement of claim against all three defendants for damages for personal injuries and damage to a vehicle owned by the first claimant, caused by a motor vehicular accident which occurred on Christmas Day in 2017. The 3 rd defendant, ASL Auto, is an automotive repair business registered under the Companies Act. Augustin Ledger is the director of ASL Auto. He is also the director of another business, ASL Real Estate Agencies Inc.
By affidavit of service filed on 14 th July 2020, Lynette Jameson, legal clerk, deposed that she served the claim on one “Shelly-Ann Wright at ASL Real Estate Agencies on behalf of Augustine Ledger owner of ASL Auto”.
Judgment in default of acknowledgement of service was entered against ASL Auto on 22 nd September 2021. A first request filed on 14th July 2020 was refused by the learned registrar.
ASL Auto filed the instant application to set aside the set default judgment on the ground that it was wrongly entered. It contends that the claimants failed to prove service of the claim in accordance with the Civil Procedure Rules 2000 as amended ( CPR 2000). An amended notice of application further asks the court to set aside the default judgment under the court's inherent jurisdiction on the ground that it is irregular as the court office/registrar has no jurisdiction to enter default judgment against one party in a claim involving multiple defendants.
The court has to determine whether to set aside the judgment in default entered by the learned registrar on 22 nd September 2021.
CPR 13.2(1)(a) provides that the court must set aside a default judgment entered under Part 12 if judgment was wrongly entered because, in the case of a failure to file an acknowledgement of service, any of the conditions in CPR 12.4 was not satisfied.
In order for judgment to be entered in default of acknowledgement of service, CPR 12.4(a) requires the claimant to prove service of the claim form and statement of claim. ASL Auto's evidence in support of the application is that it was not served with the claim form and statement of claim.
In relation to a claim against a limited liability company, as is ASL Auto, CPR 5.7 provides that service may be effected:
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(a) By leaving the claim form at the registered office of the company;
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(b) By sending the claim form by telex, FAX or prepaid post or cable addressed to the registered office of the company;
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(c) By serving the claim form personally on an officer or manager of the company at a place which has a real connection with the claim;
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(d) By serving the claim form personally on any director, officer, receiver, receiver-manager or liquidator of the company; or
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(e) In any other way allowed by any enactment.
In order to comply with CPR 5.7(a) or (b), the proper place to serve ASL Auto is the registered address as in the companies registry. The registered office of ASL Auto is Villa Flat, St. Vincent and the Grenadines. The affidavit of service of Lynette Jameson indicates that the claim was served at ASL Real Estate Agencies in Kingstown. Therefore, I find that service has not been effected in compliance with CPR 5.7 (a) or (b).
CPR 5.7 (c) speaks to 2 elements. The proper person to be served is an officer or manager of the company. This person must be served at the proper place, that is, a place that has a real connection with the company.
Exhibited to the affidavit of the first claimant, Moses Stay, in opposition to the application, is the handwritten excerpt of the purported service on Ms. Wright. It reads as follows:
“Defence } Received by: SWright
Acknowledgment} Date: 14.04.20
Claim form } Time: - 8:55”
The affidavit of Augustin Ledger filed in support of the application states that Shelly-Ann Wright is not an officer of ASL Auto, nor is she an agent of his and that she is not authorised to accept service of documents on his behalf. He further states that he is aware that Ms. Wright is employed by and performs secretarial duties for ASL Real Estate Agencies.
The claimants contend that Ms. Wright falls within section 543(c) of the Companies Act 1 which defines the word “officer”. Section 543 reads:
“officer” in relation to a body corporate means –
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(a) the chairman, deputy chairman, president or vice-president of the board of directors;
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(b) the managing director, general manager, comptroller, secretary or treasurer; or
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(c) any other person who performs for the body corporate functions similar to those normally performed by the holder of any office specified in sub-regulation (a) or (b) and who is appointed by the board of directors to perform such functions. (my emphasis)
Whereas it can be successfully argued that Ms. Wright, in accepting service of the claim, performed a function similar to those normally performed by other senior officers of a company, there is nothing before the court evidencing that she was appointed by ASL Auto's board to perform such function. Further, “secretary” in section 543 (b) is taken to refer to a corporate secretary and not a receptionist or someone performing clerical duties. In the classic text, A Practical Approach to Civil Procedure, 2 the learned author states:
“Personal service on a company is effected by leaving the documents with a person in a senior position (CPR, r 6.5 (3)(b)), which in turn means a director, treasurer, secretary, chief executive, manager, or other officer (PD 6A, Para 6.2)”
Mr. Ledger's affidavit exhibits a Notice of Appointment of Secretary/Assistant Secretary dated 25 th June 2014 pursuant to the provisions of the Companies Act of 1994. The document appoints the secretary of ASL Auto Inc as Kayon N. Howard-Ledger. In all these circumstances, I am of the view that service of the claim on Shelly-Ann Wright does not amount to proper service on ASL Auto. Therefore, the claimants have not satisfied the requirements in CPR 5.7(c). The same analysis and conclusion suffice in respect of CPR 5.7 (d).
Notwithstanding my holding, for completeness, I will consider the second element of CPR 5.7(c). Mr. Ledger in his affidavit sets out that ASL Real Estate Agencies is a company which, as the name suggests, engages in real estate business, while ASL Auto engages in the business of automotive repair services and the sale of auto parts. He swears, “I can confirm that services (sic) ASL Real Estate Agencies Inc have no connection whatsoever with the services offered by ASL Auto Inc.” The claim before the court concerns, among other things, automotive repairs to a vehicle owned by Moses Stay, the first claimant.
Mr. Stay deposes that following the accident, the subject matter of the claim, he visited the premises of ASL Auto at Villa Flat to discuss the repairing of his vehicle, and Mrs. Kayon Howard-Ledger, the wife of Augustin Ledger and also a director of ASL Auto, sent him to the “office in Kingstown”, that is, ASL Real Estate, in order to discuss the issue of his auto repairs. Mr. Stay states that he understood Mrs. Howard-Ledger to mean that the business of ASL Auto takes place at the Kingstown office. The same day, he went to the office of ASL Real Estate Agencies, and after an initial interaction with the aforementioned Ms. Shelly- Ann Wright, he and his wife, the second claimant, met with Mr. Ledger in his office at ASL Real Estate about repairing the vehicle, and a contract was negotiated for Mr. Ledger to repair the vehicle on behalf of the insurance company. Mr. Stay further states that he had various meetings with Mr. Ledger about his vehicle at the Kingstown office and absolutely refutes Mr. Ledger's claim that the two businesses have no connection.
Additional evidence on this is provided in the affidavit of Kendol Texeira which reveals that he conducted business with Mr. Ledger in relation to his car at the Kingstown office.
ASL Auto has not challenged the evidence of Moses Stay with regard to the direction of Mrs. Ledger to him to go to the Kingstown office (ASL Real Estate) to deal with the repairs to his vehicle or to any of the evidence of his dealings with Mr. Ledger in relation to the auto repairs at that office. It appears that Mr. Ledger accommodated Mr. Stay at the location he was based to conduct the business of ASL Auto. The evidence of Kendol Texeira is also unchallenged. In my view, therefore, in these circumstances, ASL Real Estate has a real connection with the claim for damages in respect of the repairs to Mr. Stay's vehicle. Unfortunately for the claimants, I have already ruled that service of the claim on Ms. Wright is not proper service on ASL Auto in accordance with the rules. The two elements in CPR 5.7 (c) are conjunctive.
An affidavit which complies with the rules of procedure creates a rebuttable presumption of service. The burden then shifts to the party allegedly served to prove that there was no service. 3 The claimants contend that the claim was served personally on an officer of ASL Auto and that they have complied with CPR 5.5. ASL Auto submits that the affidavit of service failed to comply with the CPR...
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