Morille v Pierre et Al
| Jurisdiction | St Lucia |
| Judge | Hariprashad-Charles J. |
| Judgment Date | 02 May 2001 |
| Neutral Citation | LC 2001 HC 14 |
| Docket Number | Civil Suit No. 596 of 1994 |
| Court | High Court (Saint Lucia) |
| Date | 02 May 2001 |
High Court
Hariprashad-Charles, J.
Civil Suit No. 596 of 1994
Mr. Alberton Richelieu for the plaintiff.
Mr. Kenneth A.H. Foster for the defendants.
Practice and procedure - Filing of default judgment — Plaintiff filed default judgment for damages for injuries sustained in a motor vehicle accident — Plaintiff then withdrew judgment and substituted it with another default judgment without leave of court — Whether second application of same nature could be entertained by court in absence of fresh evidence — Whether plea of res judicata tenable — Whether matter should be deemed abandoned — Course taken by plaintiff procedurally incorrect as he did not seek variation or setting aside of judgment pursuant to RSC Order 19, r. 9 — Summons dismissed.
Hariprashad-Charles J. This is indeed an unfortunate case. On 16th day of June 1993, the plaintiff, a young man of 35, suffered severe multiple injuries as a result of a motor vehicular accident on the Castries/Gros-Islet Highway in the vicinity of Bois d'Orange in the Quarter of Gros-Islet. On 27th day of June 1994, the First-named defendant was convicted of the offence of driving without due care and attention contrary to section 53 (1) of the Motor Vehicle and Road Traffic Act, No.23 of 1988.
On 9th day of August 1994 the plaintiff filed a Writ of Summons endorsed with Statement of Claim seeking special damages of $65,263.00 and other relief for personal injuries allegedly sustained as a result of the said vehicular accident. On 26th day of September 1996, the plaintiff filed an amended Statement of Claim pursuant to Order 20 of the Rules of the Supreme Court seeking increased special damages of an aggregate of $199,258.05.
The amended Statement of Claim was personally served on the defendants on 28th day of September 1996. With alacrity, the defendants entered appearance three days later.
On 27th day of November 1996, the plaintiff entered a Default Judgment against the defendants.
On 25th day of March 1997, a Summons for Assessment of Damages was filed by the plaintiff which was served upon the defendants on 22nd day of April 1997. Two days later, the defendants filed a Summons to set aside the Default Judgment.
On 14th day of October 1997, the defendants filed a Notice of Motion to deem the matter abandoned under Order 34. Then on 29th day of January 1998, the defendants filed another Notice of Motion to deem the said matter abandoned.
A perusal of the Record of the Court revealed that except for the grant of adjournments, nothing significantly transpired during several court hearings prior to the 6th day of November 1998 when Mitchell, J. [Ag.] heard the quadrupled pending interlocutory applications and made the following Order:
(1) That the three [3] applications by the defendants be dismissed;
(2) That the application by the plaintiff for Assessment of Damages be dismissed; and
(3) That costs be costs in the cause.
En passant, I observe that counsel for the plaintiff, Ms. Brender Portland was present at the hearing before Mitchell, J.[Ag.] and the defendants' counsel, Mr. Kenneth Foster, Q.C. was regrettably absent.
In dealing with the plaintiff's Summons for Assessment of Damages, this is what Mitchell, J.[Ag.] had to say at page 2 of his judgment:
“A Summons for Damages to be assessed must be based on a judgment. Such a Summons cannot be filed before the judgment. In any event, this judgment even if it were filed before the Summons for Assessment of Damages could not have founded the Summons. To found such a Summons, the judgment should include the authorizing words “and damages to be assessed” or some similar wording. In this case, the Default Judgment in question is for special damages of $199,268.05 with interest and costs. It does not authorize an Assessment of Damages [my emphasis]. Finally, the Summons for Assessment of Damages should be dismissed because it is not supported by any affidavit evidence. The Summons is dismissed.”
There has been no appeal against the judgment of Mitchell, J.[Ag.] but consequent upon the delivery of the said Judgment, a somewhat unusual turn of events ensued.
On 26th day of March 1999, the plaintiff filed a Notice withdrawing the Default Judgment dated 27th day of November 1996. No leave or order of the court was sought and or obtained.
The unfortunate chronology of events continued. Having unilaterally withdrawn the aforesaid Default Judgment, the plaintiff was successful in obtaining another Default Judgment on 24th day of January 2000 in the following terms: “No Defence having been entered by the defendant herein it is this day adjudged the defendant do pay to the plaintiff Damages to be assessed interest thereon and costs.”
Then on 22nd day of March 2000, the plaintiff filed another Summons for Assessment of Damages pursuant to Judgment in Default of Defence dated 24th day of January 2000. Accompanying this Summons was a properly drawn up affidavit.
On 20th day of June 2000, I ordered that written skeletal arguments and submissions be exchanged on or before 21st day of July 2000 and that the matter be finally adjourned to 25th day of July 2000.
On 25th day of July 2000, the court reserved judgment without hearing counsel.
The crux of the plaintiff's contention is that the Summons for Assessment of Damages should not be dismissed for the following reasons:
(i) It is a proper...
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