Thompson v Farquharson and Knowles

• Jurisdiction: Bahamas
• Judge: Thorne, J.,J.
• Judgment Date: 02 July 1992
• Court: Supreme Court (Bahamas)
• Docket Number: 704 of 1983
• Date: 02 July 1992

Supreme Court

Thorne, J.

704 of 1983

Thompson

and

Farquharson and Knowles

Appearances:

Mr. J. Thompson in person.

Mrs. S. Wells for second defendant.

Mr. Isaacs for first defendant.

Practice and procedure - Judgment — Summons to be set aside — Judgement in default of appearance — Appeal against order — “Defendant's” Solicitor accepted service of writ when not instructed to do so — Service of writ not proper service on defendant living abroad — Appeal allowed — Judgment set aside.

RULING

Thorne, J.

1 This matter comes before the Court by way of a Notice of Appeal dated the 24th March, 1988 filed by the second defendant Ruth Knowles (“applicant”). The case has a long and sad history. The plaintiff is an attorney-at-law. The Writ of Summons which is specially indorsed with the Statement of Claim was filed on the 14th July, 1983. It named two defendants, Arnold Farquharson and Ruth Knowles. Farquharson entered an appearance person to the Writ on the 18th August, 1983. Knowles did not. In his affidavit filed on the 30th August, 1983 Rupert Edwards states that on the 18th July, 1983 he served Knowles with a copy of the writ “by personally leaving the said copy with Elliot B. Lockhart of Chambers, Shirley Street in the City of Nassau”. The next step in the action was an application by the plaintiff by way of Summons dated the 30th September, 1983 for judgment by consent against Farquharson and in default of appearance against Knowles. The summons was supported by an affidavit sworn by the plaintiff on the 30th September, 1983. On the 9th December, 1983 an order was made by the Acting Registrar as follows:–

“…. IT IS HEREBY ORDERED with the consent of the first defendant that the plaintiff be at liberty to enter judgment pursuant to Order 19 Rule 7 against the first defendant and pursuant to Order 13 Rule 7 against the second defendant for the sum of $2,116.81.

AND IT IS FURTHER ORDERED AND DECLARED pursuant to the Orders hereinbefore mentioned that the Agreement made between the first defendant as agent for the second defendant dated the 1st day or August 1981 whereby the plaintiff undertook to act on behalf of the defendants in Quieting Titles Petition No. 254 of 1964 is binding on the defendants and further that the second defendant is bound to ratify and confirm the said Indenture dated the 1st day of March A.D. 1982….”

2 It then appears that a summons in Chambers dated October 1984 was prepared by Mr. David Bethel, an attorney, although it is not clear when this summons was filed. On the 9th October, 1984, however, an affidavit sworn by Ruth Knowles on the 8th October, 1984 was riled and attached to this affidavit is a Draft Defence. In her affidavit Knowles states that she is and has been at all material times a permanent resident of the United States of America ordinarily resident in the City of Opa-Locka in the State of Florida; that on the 18th July, 1983 (when it is alleged she was\served with the Writ) she was in Opa-Locka and she had never instructed Mr. Lockhart to accept service of any process on her behalf. She further stated that she had a good defence to the claim against her as shown in the Draft Defence.

3 The action appears to nave remained dormant until. 1987 when a summons was filed on the 21st August, 1987 on behalf of Knowles for an order seeking leave to appeal the Order of the Registrar referred to above. This application was supported by an affidavit sworn by Knowles and filed on the same day. Leave to appeal was granted by, Smith, J. (as he then was) on the 22nd March, 1988. On the 24th March, 1988 the Notice of Appeal was filed on behalf of Knowles. The Notice sets out five grounds of appeal, but I have been informed that the fifth ground is not being pursued. The grounds are:

• “1. That at all material times the 2nd Defendant was residing in the State of Florida and outside the jurisdiction of the Commonwealth of The Bahamas and the Writ of Summons filed herein failed to disclose that she did in fact not reside within the Commonwealth of The Bahamas.

• 2. That the 2nd defendant was never served with the Writ of Summons filed herein and had not instructed counsel to act for her and neither was she given the opportunity of a hearing.

• 3. That the 1st defendant, namely Arnold Farquharson was not the 2nd defendant's agent as stated and had no authority to act for the 2nd defendant or on her be-half as he purported to do on the 9th December A.D., 1983.

• 4. That the 1st defendant had no authority to consent to the Order herein dated 9th December, 1983.

• 5. That the said Order dated the 9th December, 1983 was obtained fraudulently.

The notice goes on to seek an order that “the order obtained herein by the defendant (sic) be struck out and set aside….”

4 At the outset I should state that the third and fourth grounds of appeal are based on a misapprehension of the facts. Farquharson did not act for Knowles on the 9th December, 1983 when the Order was made, nor did he consent to the Order on Knowles behalf. The Order obtained against Knowles was based on her non-appearance to the Writ and no objection is taken to the procedure followed in obtaining such judgment. These grounds of appeal are therefore untenable.

5 The procedure for appeals from the Registrar is set out in Order 58 which provides:–

• “1.–(1) An appeal shall lie to a judge in chambers from any judgment, order or decision of the Registrar.

• (2) The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice to attend before the judge on a day specified in the notice.

• (3) Unless the Court otherwise orders, the notice must be issued within 5 days after the judgment, order or decision appealed against was given or made and served not less than 2 clear days before the day fixed for the hearing of the appeal”.

6 Mrs. Wells submitted that at the time when the Writ was filed Knowles was, to the knowledge of the plaintiff, residing outside the jurisdiction, to wit, in Florida, and the Writ gave no foreign address for this defendant. Moreover, she said, the Writ was not stamped with the words not for service out of the jurisdiction” and no leave to issue the writ had been applied for. She contended, therefore, that Order 6 Rule 6 had not been complied with. This rule reads as follows:–

“6–(1) No writ which, or notice of which, is to be served out of the jurisdiction shall be issued without the leave of the Court….”

7 In notes to the English rules, note 6/7/2 states that:

“A writ may be issued against a defendant with a foreign address where it is not intended to serve it out of the jurisdiction e.g. where the defendant has a solicitor within the jurisdiction who will accept service and undertake to appear for the defendant. The form of writ is that for service within the jurisdiction, and on being issued is stamped with the seal “Not for service out of the jurisdiction.”

8 The address given for the defendant Knowles on the writ is “c/o Elliott B. Lockhart, Esq. Chambers, Shirley St. & Elizabeth Avenue, Nassau, Bahamas”. It was never intended, therefore, to serve the writ out of the jurisdiction. There was, in my view, no necessity to obtain leave to issue the writ. Even if the writ bore a foreign address for the defendant leave to issue it would not have been necessary if it was not intended to serve the writ out of the jurisdiction. I accept the submission of the plaintiff that the failure to put the foreign address of the defendant on the writ is an irregularity and does not render the writ a nullity. Order 2 R.1 provides that:

“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.”

9 In Harkness v. Bell's Asbestos & Engineering Ltd. (1967) 2 QB 729 at 735 Denning, L.J. referring to this rule said:–

“This new rule does away with the old distinction between...