Georgia Kouda v Dimitrious Adampolous
| Jurisdiction | St Lucia |
| Judge | Sandcroft, M. |
| Judgment Date | 22 October 2020 |
| Judgment citation (vLex) | [2020] ECSC J1022-1 |
| Docket Number | Claim Number: SLUHCV2017/0635 |
| Court | High Court (Saint Lucia) |
| Date | 22 October 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Claim Number: SLUHCV2017/0635
Mrs. Shervon Pierre of Counsel for the Claimant/Respondent
Mr. Dexter Theodore Q.C. and Ms. Sueanna Frederick of Counsel for the Defendant/Applicant
Sandcroft, M. [ Ag.]: Generally speaking, the exercise of the Court's discretionary power [under the CPR 2000 (as amended)], appears to have been influenced by considerations of justice and fairness, having regard to all the facts and circumstances of the particular case. The onus of showing the existence of sufficient-cause for relief was on the applicant in each case, and he had to satisfy the Court, inter alia, that there was some reasonably satisfactory explanation as to why the judgment was allowed to go by default.
On 25 th October 2017, the claimant filed a claim in defamation against the defendant, claiming damages as well as injunctive relief (the “Claim”).
The defendant was served with the claim form, statement of claim, the amended list of exhibits and the required forms on 2 nd November 2017. This is evidenced by an affidavit of service filed by Process Server Police Officer, Lucius Bruce on 21 st November 2017.
No acknowledgment of service had been filed by the defendant; the claimant filed a request for default judgment on 24 th November 2017. On 22 nd January 2018, the Court, noting that all the requirements of Rule 12.4 of the Civil Procedure Rules 2000 (CPR) had been satisfied, granted judgment to the claimant (the “Judgment”).
The judgment was not served on the defendant until 21 st June 2018. The claimant stated that the defendant was evading service and filed an affidavit of attempted service to that effect, together with the required affidavit of service.
After the judgment had been served on the defendant, the claimant filed an application for assessment of damages. The application was eventually heard on 29 th April 2019 and the Court issued directions for assessment. The defendant was present and the directions were explained to him by the Court.
On 29 th May, 2019, one month after the court hearing and one year and four months after the judgment was granted, the defendant filed the present application, alleging that he had never been served with either the claim or the judgment and requesting that the judgment be set aside. The defendant later added a further ground, to wit, that the affidavit of service evidencing service of the claim did not specify the year of service and was therefore fatally flawed.
The defendant submitted that he was never served with the claim form, statement of claim and other related documents and that he saw these documents for the first time on 16 th May 2019. He therefore denies that there was any personal service on him.
Counsel for the defendant/applicant submitted inter alia that the claimant had failed to comply with Part 5.5 of the Civil Procedure Rules 2000 as the Affidavit of SPC Lucius Bruce filed on November 21 st, 2017 stated under paragraph 2 that he purportedly served the Defendant on 2nd November and stated no year. This renders the affidavit fatally flawed and this is the affidavit which the court relied upon to enter judgment. Accordingly, the judgment is irregular and ought to be set aside as of right. Manipulation of the affidavit or the filing of a supplemental affidavit at this juncture and after the entry of judgment cannot assist the claimant as it remains that judgment was entered in reliance upon a deficient and defective Affidavit. The defendant maintained that he had never been served with the claim form, statement of claim and supporting documents in the instant matter.
Counsel also submitted that the affidavits of the claimant are defective and incomplete, thus rendering the judgment irregular. The defendant further contends that that he was never served with the claim form, statement of claim or judgment and he having provided the Court with overwhelming evidence to support his contention that he was never served with the said documents, the defendant invites the Court to set aside the judgment and to strike out the Submissions on Assessment in accordance with Part 26.3(a) of the Civil Procedure Rules 2000.
Counsel further submitted that the affidavit of SPC Lucius Bruce filed on 21 st June 2019, the defendant noted that the said affidavit was filed further and in addition to the previous affidavits. The claimant cannot at this juncture proceed to advance evidence of proof of service and ought to have advanced all evidence of service before the entry of judgment, so as to cause any judgment entered to be a regular judgment rather than an irregular judgment, as the current judgment now is.
Counsel also posited with respect to paragraph 5 of the said Affidavit and the purported picture referred to therein, it cannot be said conclusively that the person in the picture is the Defendant, that the documents in the person's hand are the claim form and statement of claim or that the said picture was taken in 2017 or 2019 or any other year.
Counsel further posited that exhibit L.B. 2 and paragraphs 6, 7, 8 and 9 of the aforesaid affidavit, are entirely unreliable as a photograph can easily be manipulated through computer software or mobile phone applications and it remained that the documents in the individual's hand could not be confirmed to be any particular set of documents.
Council submitted that the combined judgment of the appellate court in the three cases of Denton, Decadent and Davies 1 made the following observations of what Courts ought to take into consideration when examining a set aside application:
“In future, judges were to adopt a three-stage approach: (a) they had to identify and assess the seriousness or significance of the relevant failure. Triviality was not part of that stage. There were clearly degrees of seriousness and significance. The assessment ought not to involve consideration of past unrelated failures, only the seriousness and significance of the very breach in respect of which relief from sanctions was sought. If a breach was not serious or significant, relief would usually be granted and there would be no need to spend much time on the second and third stages; (b) the second stage did not derive from r.3.9 but was nevertheless important: the court had to consider why the failure or default occurred”.
Counsel posited that paragraphs 13 to 15 of the affidavit of SPC Bruce attempted to correct, further explain, elaborate upon, clarify, add weight to and make sense of the previous defective and deficient affidavit upon which the Court relied to cause itself to be satisfied that the judgment had been served upon the defendant. It was also submitted firstly that the current expedition by the claimant and SPC Bruce to bolster the said affidavit is an acknowledgment that the previous affidavit was deficient. It was also submitted secondly that the claimant at this juncture could not venture to prove service as such proof ought to have been properly before the Court before the entry of judgment.
Counsel further posited that given that SPC Bruce had acknowledged at paragraph 15 that his previous affidavit was deficient in that it did not contain evidence which he purportedly conveyed to a Legal Assistant, this admission has left the Court with no option but to set aside the judgment.
Counsel also posited that in one affidavit Officer Bruce remained in the car and witnessed the defendant come to the door of the apartment but in another Affidavit he disembarked the vehicle and whilst still in the yard he saw documents being dropped at the defendant's feet. That there was no mention of Officer Bruce disembarking the vehicle in the affidavit of attempted Service and this was simply an embarrassing and unfortunate attempt by him to explain away the fact that the defendant's front door could not be seen from the road or from a vehicle, and which the defendant clearly illustrated in his application to set aside the judgment. These statements by Officer Bruce were embarrassing, a poor attempt to mislead the Court, contradictory in and of themselves, inconsistent and untrue, as usually occurs when an attempt is made to create an untrue story.
Counsel further submitted that in keeping with the overriding objective of the Civil Procedure Rules, 2000 and the administration of justice that the Court ought to exercise its discretion in favour of the applicant and grant the application as prayed.
Counsel for the claimant/respondent submitted inter alia that the affidavit evidence of the parties should be weighed by the Court to determine, on the balance of probabilities, which is more likely to be the truth. See, for example: Imelda Estephane qua representative of the estate of Cherilyn Estephane v Coolie and Smith, decided in 2013 2.
Counsel also submitted that Officer Lucius Bruce, process server, gave evidence in support of service of the claim on the defendant. Officer Bruce had served as a process server and police officer for over thirteen years and he was attached to the Crown Prosecution Service, that Officer Bruce was well aware of the consequences of falsifying evidence. He stated that he took his duties as a process server very seriously. The evidence of the parties did not suggest that he had any personal interest in these proceedings whatsoever.
Counsel further submitted that the defendant, having been served with the judgment in default in respect of this matter on 24 th November, 2017, took no steps to set aside same, more than one year and four months after being served.
Counsel...
To continue reading
Request your trial