Bridgewater v Bermuda Accounting & Management Services

• Jurisdiction: Bermuda
• Judgment Date: 13 January 2015
• Date: 13 January 2015
• Docket Number: Appellate Jurisdiction 2014 No 20
• Court: Court of Appeal (Bermuda)

[2015] Bda LR 2

In The Supreme Court of Bermuda

Appellate Jurisdiction 2014 No 20

Between:

Kyle Bridgewater

Appellant

and

Bermuda Accounting & Management Services

Respondent

Mr K Worrell for the Appellant

Mr K Bean for the Respondent

The following cases were referred to in the judgment:

Dobie v Interinvest (Bermuda) Ltd and BlackBDLR[2009] Bda LR 31

Wakefield and Accardo v Marshall et alBDLR[2010] Bda LR 53

Appeal against refusal to set aside default judgment — Prospects for success — Conduct of parties — Abuse of process

JUDGMENT ofKawaley CJ

Background

1. By a Summons dated February 21, 20111, the Respondent sued the Appellant for $8506.46 plus costs. The claim was initially based on an alleged compromise of an original bill for accounting services in an amount of $50,000, which was negotiated down to $14,400 to be paid in six instalments three of which were outstanding. The Appellant's case was that no further sums were due because he had since discovered further errors which had caused him substantial loss.

2. Judgment was first obtained by the Respondent on or about November 26, 2010 by default. By letter dated December 10, 2010, the Appellant applied to set aside the default judgment on the grounds that he had no notice of the hearing. This judgment was set aside in November 2011. On February 22, 2013, judgment in default was entered a second time. The Appellant applied to set this judgment aside before the Wor Maxanne Anderson (Acting) on May 3, 2013 and prayed in aid a diary error. The Learned Magistrate refused what she regarded as the second application to set aside a default judgment in the same case. The Appellant appealed against that refusal.

3. At the hearing of the appeal, I expressed the provisional view that the appeal should be dismissed on terms that that the Appellant should be at liberty to pursue any counterclaim in the same action in the Magistrates' Court. This was because in the absence of expert evidence it was difficult to assess the merits of any such counterclaim and to justify depriving the Respondent of a judgment when the Appellant had not pursued his alleged counterclaim with any diligence in the Court below. Almost four years after the Respondent had sued for the balance of an agreed sum, the Appellant had still not formulated a coherent basis for denying that any further sums were properly due. On the other hand, his counsel vigorously contended that the Appellant wished a further...