Syla Ltd v Real Estate Funding Ltd
| Jurisdiction | Bahamas |
| Judge | Madam Senior Justice Deborah Fraser |
| Judgment Date | 11 March 2024 |
| Docket Number | 2020/COM/com/00015 |
| Court | Supreme Court (Bahamas) |
and
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Her Ladyship The Honourable Madam Senior Justice Deborah Fraser
2020/COM/com/00015
IN THE SUPREME COURT
COMMERCIAL DIVISION
Extension of Time to Serve Defence — Request for Defence filed out of time to be deemed valid and effective — Rule 12.5 of the Rules of the Supreme Court, Civil Procedure Rule, 2022 — Judgment in Default of Defence — Prospect of successfully defending claim — Delay — Reasons — Rule 26.1(2)(k) of the Supreme Court Civil Procedure Rules, 2022 — Rule 26.1(2)(v) of the Supreme Court Civil Procedure Rules — Part 71 of the Supreme Court Civil Procedure Rules — Costs
McFalloughn Bowleg Jr. for the Claimants
Mr. Rhyan Elliott for the First Defendant
Ms. Roberta Quant and Ms. Leslie Brown for the Second Defendant
There are two applications before the Court — namely (i) an application on behalf of the Claimants requesting judgment in default for the First Defendant's failure to file its Defence in time; and (ii) An application on behalf of the First Defendant requesting an extension of time in which to serve its Defence and a request that the Court make an Order declaring the First Defendant's filed Defence be deemed valid and effective. Each application will be considered.
On 06 March 2020, the Claimants filed a Specially Endorsed Writ of Summons (“ Writ”) against all of the Defendants.
The First Defendant was served with the Writ on 16 March 2020.
On 24 March 2020, Mr. Rhyan Elliot (“ Mr. Elliot”), counsel for the First Defendant, wrote to Mr. Christopher Jenkins (“ Mr. Jenkins”), counsel for the Claimants, and stated, inter alia:
“ In light of the promulgation of the Emergency Powers ( COVID-19)(No. 1) and (No. 2) Orders, 2020 (“the Emergency Orders”) and the provisions thereof, we anticipate that we will be unable to enter an Appearance to the captioned action on behalf of the First Defendant within the time limited by the Rules of the Supreme Court (1978). Notwithstanding this, we attach an unfiled copy of our Notice of Appearance and Memorandum of Appearance, which we intended to file on Friday 27 March, 2020.
In all the circumstances, we should be grateful if you would accept our undertaking to file and serve the Notice and Memorandum at the Supreme Court Registry once the Emergency Orders expire.”
On that same date, Mr. Jenkins confirmed that the Claimants agreed to an extension of time in which the First Defendant may file its Defence.
During the period of 24 March 2020 and 11 February 2021 Mr. Jenkins and Mr. Elliot continuously corresponded via email in an effort to agree an extension of time in which the First Defendant could file its Defence. Multiple extensions were granted to the First Defendant by the Claimants.
On 26 June 2020, Higgs and Johnson filed a Notice of Appearance and Memorandum of Appearance.
On 02 February 2022, the Claimants filed, with leave of the Court, an Amended Specially Indorsed Writ of Summons. On that same day, the First Defendant was served with the Amended Specially Indorsed Writ of Summons.
On 11 March 2022, the Claimants filed a Summons pursuant to Order 19 Rule 7 (1) of the Rules of the Supreme Court, 1978 (“ RSC”) and/or the inherent jurisdiction of the Court that no Defence having been served by the First Defendant herein, judgment be entered for the Claimants against the First Defendant.
The First Defendant then filed a Summons on 25 March 2022 seeking an Order pursuant to Order 3, Rule 4 of the RSC that the time limited by the RSC Order 18, Rule 2 for the First Defendant to serve its Defence to the Amended Writ of Summons, filed herein on 02 February, 2022, be extended to 25 April, 2022 or such other time frame that the Court shall deem just and expedient.
On 26 October 2022, the First Defendant then filed a Defence out of time and without leave of the Court.
There was also a Summons filed by the First Defendant on 07 November 2022 requesting the aforementioned extension of time to serve its Defence and/or alternatively, an Order pursuant to Order 31A, Rule 26 and/or the inherent jurisdiction of the Court that the Defence, filed herein on 26 October, 2022 be confirmed as valid and effective.
I shall address each application in turn.
I have not seen any affidavit filed on behalf of the First Defendant in this matter.
The Claimants filed the Affidavit of Tonesa Munnings on 29 March 2023 (“ Munnings Affidavit”) which provides evidence in relation to the First Defendant's late filing of its Defence. The Munnings Affidavit provides: (i) On 06 March 2020, the Claimants filed their Writ; (ii) on 24 March 2024, Mr. Elliot (on behalf of the First Defendant) emailed Mr. Jenkins regarding the promulgation of the COVID-19 protocols and his inability to file and serve a Notice and Memorandum of Appearance at the time due to the said protocols. He sent Mr. Jenkins an unfiled copy of the Notice of Appearance and Memorandum of Appearance; (iii) on 24 June 2020 Mr. Jenkins wrote to Mr. Elliot stating, inter alia, that the COVID-19 protocols had been extended to the end of June and would likely be extended further. He also stated that the Courts returned to operationality and he no longer saw a justification for delaying. He requested Mr. Elliot to do the requisite filings on behalf of the Defendant within 21 days; and (iv) On 01 July 2020, Mr. Elliot wrote to Mr. Jenkins stating, inter alia, that COVID-19 (No. 2) Rules, 2020 remain in effect (which extended the time limited for the filing of a Defence during the COVID-19 pandemic to 10 August 2020) and therefore, the time limited for filing a Defence did not expire.
The Munnings Affidavit further provides: (i) that the COVID-19 (No. 3) Rules, 2020 extended the time for filing a Defence to 07 September 2020 and that, as of that date, no further extensions were permitted. (ii) On 04 February 2021, Mr. Elliot wrote to Mr. Jenkins stating, inter alia, that he did not have proper instructions and was, therefore unable to file the Defence. He requested a further extension of time in which to file the First Defendant's Defence and informed Mr. Jenkins that he formally made application for extension of time to serve the Defence on 05 March 2021; and (iii) Mr. Jenkins wrote back to Mr. Elliot on 11 February 2021 stating that he was concerned that Mr. Elliot did not receive instructions given the lapse of time and that a formal application for an extension of time has been made without instructions. He told Mr. Elliot that he was instructed to apply for Default Judgment.
The issue that the Court must decide is whether I ought to grant judgment in default of defence?
I have considered the submissions of counsel and the evidence. I will now apply same to the instant case.
For completeness, I wish to expressly state that these proceedings (and all other proceedings in this matter moving forward) are governed by the CPR by virtue of Practice Direction No. 9 of 2023, paragraph 2.1. That paragraph provides that, where no trial date has been fixed, the CPR applies. As no trial date has been fixed for this matter, the CPR, therefore applies to these proceedings.
In relation to an application for judgment in default of defence, Rule 12.5 of the CPR provides:
“ 12.5 Conditions to be satisfied – judgment for failure to defend.
The claimant may enter judgment for failure to defend if —
(a) the claimant proves service of the claim form and statement of claim or an acknowledgement of service has been filed by the defendant against whom judgment is sought;
(b) the period for filing a defence and any extension agreed by the parties or ordered by the Court has expired;
(c) the defendant has not —
(i) filed a defence to the claim or any part of it, or the defence has been struck out or is deemed to have been struck out under rule 22.1(6) ;
(ii) if the only claim is for a specified sum of money, filed or served on the claimant an admission of liability to pay all of the money claimed, together with a request for time to pay it; or
(iii) satisfied the claim on which the claimant seeks judgment; and
(d) where necessary, the claimant has the permission of the Court to enter judgment (emphasis added)”
The Supreme Court Civil Procedure Rules, 2022 Practice Guide, January 2024 (“ Practice Guide”) gives helpful guidance on the applicability of this rule and how the Court ought to proceed. On page 126 of the Practice Guide, the following notes were provided:
“ Notes:
It should be recognized that proof of service is integral, along with the requisite period having been expired before judgment in default is entered. Where the request for default judgment is administratively done or made in court, the following requirements must be satisfied: (a) The claimant must prove service of the claim form and particulars of claim on the defendant (see E J Cato & Sons Ltd v Attorney General (2012) HC No. 384 of 2009 [Carilaw VC HC 31] (b) The period for filing an acknowledgment of service or defence, as the case may be has expired; (If no acknowledgment of service (or defence) is filed within 14 days after the date of service as required by the CPR, then a defence filed within 42 days of the date of service of the claim does not prevent the entry of judgment in default of acknowledgment of service of the claim form) ( RBC Royal Bank (Jamaica) Ltd v Howell (2013) Supreme Court Jamaica, No 94 of 2012 [ Carilaw JM 2013 SC 21; (c) The defendant has...
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