Elizabeth Smith v Ivan Floyd

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Gardner Hippolyte, M.
• Judgment Date: 04 May 2022
• Judgment citation (vLex): [2022] ECSC J0504-1
• Year: 2022
• Docket Number: Claim No: ANUHCV2020/0470

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No: ANUHCV2020/0470

Between:

[1] Elizabeth Smith

[2] Strahinja Teodosic

Claimants

and

[1] Ivan Floyd

[2] Lionel Francis

Defendants

Appearances:

Leslie-Anne Brissette, Counsel for the Claimants

Kemar Roberts, Counsel for the first Defendant

DECISION

Gardner Hippolyte, M.

1 This is an application by the first Defendant to set aside a default judgment under Civil Procedure Rule ( CPR) 13.2, alternatively for the default judgment to be set aside under CPR 13.3.

Background

2 The instant claim was filed on the 18 ^th December, 2020 and the first Defendant was served personally on the 22 ^nd January, 2021 with the claim form and the statement of claim. 1 The authorization code was not served on him at that time.

3 The affidavit in support of the first Defendant's application to set aside the judgment indicates that the person subsequently served with the authorization code is an attorney for the insurance company and the Attorney for the insurance company filed an acknowledgment of service on the 29 ^th January, 2021.

4 The affiant to the application in support further deposes that the first defendant did not instruct the attorney for the insurance company to accept service on his behalf. Further that the first defendant had no knowledge that the authorization code had been served on the Attorney for the insurance company or that an attorney had been elected to represent him in these proceedings by the insurance company.

5 The affiant for the first Defendant indicates that his instructions to the insurance company was only to facilitate settlement and some payments were made to the Claimant. The affiant is adamant that at no time was it communicated to the first Defendant that he was being represented by Counsel.

6 An affidavit in support of service of the claim form was filed by the Claimants on the 2 ^nd February, 2021. It deposes personal service on the first defendant on the 22 ^nd January, 2021 of the claim form and the statement of claim. A supplemental affidavit was then filed on the 1 ^st April, 2021 by another deponent. The affidavit states that the first Defendant was served via email on the 29 ^th January, 2021 the exhibit attached refers to an email sent to C. Brown on the 28 ^th January, 2021 with the authorization code and the email is acknowledged by C. Brown on the 29 ^th January, 2021.

7 On the 29 ^th January, 2021 an attorney files an acknowledgement of service on behalf of the first Defendant, and subsequently no defence was filed. On the 26 ^th March, 2021 a request for judgment in default of defence was filed and granted.

8 On the 23 ^rd June, 2021 the matter came up before the Court and it was noted that the first Defendant had separate counsel than who appeared on the court's E-litigation record. It was agreed that directions for assessment could be issued but the counsel on the E-Litigation record would withdraw to allow the newly instructed counsel to enter an appearance. An appearance was subsequently entered by the newly instructed counsel on the 21 ^st October, 2021. Thereafter an application to set aside the default judgment was filed on the 10 ^th November, 2021. The application is grounded first under CPR 13.2, and in the alternative 13.3 to set aside the default judgment.

9 On the 15 ^th December, 2021 the Claimant filed another affidavit deposing that the Form of Judgment for an amount to be decided by the Court, a notice of Hearing and the Authorization Code form was served on the first Defendant on the 30 ^th April, 2021.

10 Written and oral submissions were received from both Counsel for the Claimants and for the first Defendant. I find that the application to set aside the default judgment can be granted under CPR 13.2 and the reasons for the same will be highlighted below. Accordingly, an examination of CPR 13.3 will not be necessary in the circumstances.

11 I will now go on to the substance of the application as it pertains to the rules of service under CPR 5, Rule 13 under the Eastern Caribbean Supreme Court (Electronic Litigation Filing and Service Procedure) Rules 2019, entering a default judgment under CPR 12.5, and setting aside a default judgment under CPR 13.2.

The Applicable Law

CPR 5

12 CPR 5 sets out clearly the rules as it pertains to service on a defendant. The first requirement is that a claim form must be served personally on each defendant. 2 Proof of personal service is laid out in CPR 5.5 with requirements for the method of service, the place of service, and how a person is to be identified. 3

13 CPR 5.6 highlights if a legal practitioner is authorised to accept service on behalf of a party and they have notified the Claimant in writing that he or she is so authorised to accept the service, the claim form may be served on the legal practitioner.

Rule 13 — Eastern Caribbean Supreme Court (Electronic Litigation Filing and Service Procedure) Rules 2019

14 With the advent of the Electronic Litigation Filing, rules were implemented to assist users with proper procedure on filing under the E-litigation Portal. The rules include a component of how service is to be effected in relation to documents. The Eastern Caribbean Supreme Court (Electronic Litigation Filing and Service Procedure) Rules 2019 at rule 13 sets out the requirements for service of proceedings that have commenced. Rule 13.(3) has a twofold mandatory requirement by the filing party to firstly ensure that service is effected in accordance with the applicable rules and secondly, the generated authorization code must be served at the same time.

15 The rule 13.(3)(b) states “ the filing party must at the same time serve the authorization code generated by the Electronic Litigation Portal in Form 1 in Schedule 2 to these rules.” (My Emphasis)

16 Rule 13 (4) further qualifies this section and emphasises that “where the authorization code generated by the Electronic Litigation Portal is not served on a party in accordance with sub-rule 3, service shall be deemed not to have been effected, except where service is effected in

accordance with directions given by the court in respect of an order permitting substituted service.”

17 Accordingly, if the authorization code is not served on a party the service shall be deemed not to have been effected. 4

CPR 12.5

18 CPR 12.5 requires the Court office at the request of a Claimant to enter judgment for failure to defend if the Claimant proves service or an acknowledgement of service is filed. The request made by the Claimant was for the failure to file a defence since an acknowledgment of service was filed on behalf of the first Defendant on the 29 ^th January, 2021.

19 CPR 12.5 states as follows:

12.5 The court office at the request of the claimant must enter judgment...