Veronica Joseph Claimant v Alan Mark Julien/Phillip Defendant [ECSC]

• Jurisdiction: Grenada
• Judge: Ellis, J.
• Judgment Date: 30 January 2013
• Neutral Citation: [2013] ECSC J0130-3
• Judgment citation (vLex): [2013] ECSC J0130-10
• Court: High Court (Grenada)
• Date: 30 January 2013
• Docket Number: CLAIM NO. GDAHCV 2010/0394

[2013] ECSC J0130-10

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

IN THE HIGH COURT OF JUSTICE

CLAIM NO. GDAHCV 2010/0394

Between:

Veronica Joseph

Claimant

and

Alan Mark Julien/Phillip

Defendant

Ellis, J.

1 The Claimant's fixed date claim form and statement of claim together with the customary documents were personally served on the Defendant on 23^rd September 2010. No defence has been entered in respect of this claim.

2 By notice of application filed on 1^st March 2012, the Defendant herein applied for an extension of time to file and serve his defence herein.

3 The grounds of the application are:

• 1. That the Defendant lives with his girlfriend, the mother of the Defendant's three young children. The mother of the said children is unemployed and the Defendant is the sole bread winner of the family earning $574.00 per fortnight as maintenance man at Maurice Bishop International Airport. TheDefendant was therefore not able to retain counsel and was attempting to handle the matter himself.

• 2. Mr Alban John, of counsel, was asked by the court to assist the Defendant on 7^th July 2011 but the Defendant then had an accident on the job causing serious injury to his hand resulting in hospitalisation for 8 days.

• 3. The Defendant then fixed an appointment on 9^th December 2011 but became disillusioned and disheartened because he was unable to raise the monies to approach counsel for assistance as he was of the view that he had to be able to financially retain counsel to handle the matter.

4 The application is opposed by the Claimant. On the last occasion that this matter came up for hearing the court asked the parties to provide submissions in writing. The parties agreed to have this matter decided on the papers.

Chronology

5 The factual background and chronology are critical to the decision in this case and is set out in brief.

• 1.8^th September 2010— Claimant files fixed date claim form and statement of claim seeking inter alia an order for recovery of possession of land owned by the Claimant and occupied by the Defendant.

• 2.23^rd September 2010— the Defendant is served.

• 3.4^th November 2010— first hearing of fixed date claim. Defendant appears and advises that his name is incorrectly stated on the claim form.

• 4.12^th April 2011— application to amend the Claim granted.

• 5.28^th February 2011— the Claimant files an application for judgment pursuant to CPR 20.2 (3) on the basis that the Defendant has failed to file a defence within the time prescribed by the CPR 10.3 and the Defendant has not filed an application to extend the time for filing a defence.

• 6.12^th October 2011— Defendant sustains an on-the-job injury which requires hospitalisation for 8 days.

• 7.1^st December 2011— at the hearing of the Claimant's application the court invites Alban John to act for the Defendant.

• 8.8^th December 2011— counsel for the Defendant files notice of his appointment as counsel.

• 9.27^th February 2012— Court grants leave until 2^nd March 2012 to make an application for leave to file a defence failing which the Defendant will not be allowed to file a defence in the action and the Claimant can proceed to apply for judgement.

• 10.1^st March 2012— Defendant files application to extend the time for filing his defence.

Analysis

6 CPR 10.3 (1) mandates that the time for filing a defence is 28 days after service of the claim form. No distinction is drawn between the fixed date claim form and the ordinary claim form. The distinction arises under CPR 12. In the case of the ordinary claim form where a Defendant fails to file a defence within the prescribed period, judgment may be entered for failure. However under CPR 12.2 (b) default judgment is not available for a fixed date claim.

7 The Defendant concedes that his defence was filed outside the period stipulated by the CPR, and in the premises he asks that the court exercise its discretion to extend the time for the filing of his defence.

8 CPR 26.1 (2) (k) provides that except where the rules provide otherwise, the court may 'extend or shorten the time for compliance with a rule, practice, direction, order or direction of the court if the application for an extension is made after the time for compliance has passed.'

9 What then are the factors to be taken into account in the exercise of the court's discretion?

10 There is no express or implied sanction for the failure to comply with the CPR 10.3 (1). The court notes the dicta of Lord Dyson inAttorney General v Keron Matthews [2011] UKPC 38 where at paragraph 16 of the judgment he stated:

"There is no rule which states that, if the Defendant fails to file a defence within the period specified by the CPR, no defence may be filed unless the court permits. The rules do, however, make provision for what the parties may do if the Defendant fails to file a defence with the prescribed period: rule 10.3(5) provides that the Defendant may apply for an extension of time; and rule 12.4 provides that, if the period for filing a defence has expired and a defence has not been served, the court must enter judgment if requested to do so by the Claimant. It is straining language to say that a sanction is imposed by the rules in such circumstances. At most, it can be said that, if the Defendant fails to file a defence within the prescribed period and does not apply for an extension of time, he is at risk of a request by the Claimant that judgment in default should be entered in his favour. That is not a sanction imposed by the rules. Sanctions imposed by the rules are consequences which the rules themselves explicitly specify and impose."

11 It follows therefore that the Defendant is not required to seek relief from sanctions and that the court is not obliged to consider the factors set out in Part 26.8 of the CPR.

12 In circumstances where there is no sanction, the rules do not expressly prescribe the factors which the court must take into account in exercising its discretion to extend time. Thankfully, however, the Court of Appeal has provided clear guidance on this.

13 InC.O. Williams Construction Co. Ltd. v Inter Islands Dredging Co. Ltd, the Eastern Caribbean Court of Appeal held that:

"On an application for extension of time generally, where no sanction specified for failure to comply with a rule which prescribes the time limit, the court in the exercise of its discretion will consider (1) the length of thedelay (2) the reasons for the delay (3) the chances of success if the extension is granted; and (4) the degree of prejudice if the application is granted."

14 The Court accepts that applying these factors to this case that these are relevant factors to be considered in the exercise of its discretion. In exercising its discretion the Court must ultimately seek to give effect to the overriding objective.

Length of Delay

15 It is not disputed that the Defendant was served with the claim form on 23^rd September 2010. It follows that this application to extend time (filed on 1^st March 2012) was filed some 17 months after his defence became due. Given the prescription in CPR 10.3(1), there is no question that the delay is inordinate.

Reasons for the Delay

16 The affidavit of Veronica Plenty, filed in support of this application indicates that following receipt of the fixed date claim the Defendant was not able to retain counsel and was attempting to handle the matter himself. Ms Plenty averred that the Defendant is the sole bread winner of the family, earning $574.00 per fortnight as maintenance man at Maurice Bishop International Airport.

17 Although counsel had been asked by the Court to assist the Defendant on 7^th July 2011, it appears that he suffered an accident on the job which caused serious injury to his hand resulting in hospitalisation for 8 days. The medical certificate exhibited indicates that he was in fact admitted and treated at the MSW ward of the General Hospital between the 14^th October 2011 and 21^st October 2011.

18 The evidence discloses that Defendant then fixed an appointment with Counsel on 9^th December 2011 but then became disillusioned and disheartened because he felt unable to approach counsel for assistance as he was of the view that he had to be able to financially retain counsel to handle the matter.

19 The court accepts that the illness or physical incapacity of an applicant would be a justifiable and plausible excuse for delay. However in the Claimant's case, the illness or incapacity covers a period of no more than 10-15 days. There are several significant gaps in the chronology which have not been addressed in the Defendant's application.

20 The evidence which the Defendant has offered in support of his application provides no reasonable explanation for the delay between 21^st October 2010 and the 7^th July 2011. Having elected to go it alone without the benefit legal counsel, the Defendant does not explain why he failed to personally take any steps in the matter.

21 Further, there is no explanation for the failure to take any step in the proceedings between 7^th July 2011 (when the assistance of counsel was solicited) and 21^st October 2011 (when the Defendant sustained his injury). There is also no plausible or reasonable explanation to explain the further period of delay between 21^st October 2011 and 9^th December 2011 or between 9^th December 2011 and the eventual filing of this application.

22 In order to determine whether there is a good explanation for the failure to file a defence within time, there must be proper evidence before the court to justify the entire period of delay. The Court is not satisfied that the Defendant's alleged impecuniosity could justify failing to take any action to defend this claim. He may well have felt unable to retain counsel in the matter but that does not excuse his inertia. As with any other litigant in Grenada, the Defendant has the...