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Appeals Court dismisses Supreme Court ruling on default judgments

Published:Thursday | March 10, 2016 | 3:00 AMBarbara Gayle

The Court of Appeal has overturned a Supreme Court ruling that it is a mandatory requirement to file an acknowledgment of service in order for the court to entertain an application to set aside a default judgment.

Frank I. Lee Distributors Ltd had appealed against the ruling after Justice Bryan Sykes turned down its application. The appellant contended that it had not been served with the claim form.

The appellant was sued by the law firm Mullings and Co, of which attorney-at-law Gillian Mullings is a partner, for outstanding fees for work done.

In setting aside the ruling, the Court of Appeal ordered that the application to set aside the default judgment must be heard by the Supreme Court. Legal costs were awarded to the appellant.

Attorney-at-law Hugh Wildman, who represented the appellant, argued that the Supreme Court ruling was inaccurate.

He submitted that the rules governing the setting aside of default judgments were clear and did not require the filing of an acknowledgment of service.

Wildman said that the Civil Procedure Rules (CPR) state that the period for filing an acknowledgment of service is 14 days after the date of service of the claim.

He said that it was of paramount importance that service of the claim must mean that the claim had been brought to the attention of the defendant.

He argued that it was only when a defendant had been notified of the claim by service that the need for acknowledgment of service arose.

Wildman said that the rules allowed for an application to be made to set aside a default judgment if it were considered that in the interest of justice it ought to be so set aside.

Disputing

court's jurisdiction

Attorney-at-law Paul Beswick, who represented the law firm, had submitted that the notice of application to set aside the default judgment was a challenge to the court's exercise of its

jurisdiction to issue a default judgment.

The court, in allowing the appeal, said that an application to set aside a default judgment was not disputing the court's jurisdiction to try a claim nor was it being argued that the court should not exercise its jurisdiction.

The court said that on the contrary, "it is more by nature, an invoking of the court's jurisdiction to exercise its discretion to set aside the default judgment already entered so that the claim may be tried".

The court pointed out that a defendant who was not served and had a default judgment entered against him for failing to acknowledge service could hardly be expected to file an acknowledgment of service while seeking to explain the failure in an effort to have the judgment set aside.

barbara.gayle@gleanerjm.com