Heart & Soul Construction Ltd v Veleka Eve
| Jurisdiction | Bermuda |
| Judge | Shade Subair Williams |
| Judgment Date | 21 December 2017 |
| Neutral Citation | [2017] SC Bda 113 Civ |
| Docket Number | CIVIL JURISDICTION 2011 No: 84 |
| Court | Supreme Court (Bermuda) |
| Date | 21 December 2017 |
[2017] SC (Bda) 113 Civ
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2011 No: 84
Plaintiff Mr. Chris Swan ( Christopher E. Swan & Co.)
Defendant Mr. Kamal Worrell (Mastermind Bermuda Law)
Application to set aside Judgment made as a sanction for non-compliance with an Unless Order
RULING of Registrar Shade Subair Williams
The Parties in this matter appear before the Court on the Defendant's summons, dated 25 August 2017, for an order to set aside judgment made by the learned Justice Charles-Etta Simmons on 20 September 2013. In this case, judgment was made on the papers as a sanction for non-compliance with an Unless Order made by the same learned judge on 15 August 2013 at a hearing where only the Plaintiff was present.
The Plaintiff filed a Specially Indorsed Writ on 16 March 2011 for unpaid contractual works to the Defendant's property in the sum of $188,790.00.
On 10 May 2011 the Defendant filed a Memorandum of Appearance through her then attorney, Kevin Taylor of Marshall Diel & Meyers and on 3 June 2011 a Defence was filed on basis that the contractual works were carried out poorly.
On 16 March 2012 the Plaintiff filed a summons for pre-trial directions which was heard before the learned Hon. Chief Justice, Ian Kawaley, on 19 April 2012 when pre-trial directions were issued.
In part, Kawaley CJ, ordered for the parties to exchange their list of documents within 14 days of his 19 April 2012 directions. Neither party complied with this time-frame. Over two months later, the Plaintiff filed its list of documents on 6 July 2012 which was served on the Defendant's attorney on 12 July 2012. To date, the Defendant has not filed a list of documents.
The Chief Justice's directions also provided for the exchange of witness statements on or prior to 30 September 2012. To date, neither party has complied with this direction. In fact, nearly a year lapsed after the first missed deadline (Thursday 3 May 2012) before the Plaintiff took any Court action at all.
By letter dated 1 April 2013 and filed on 2 April 2013, the Plaintiff requested a case management hearing before a Judge in Chambers. A Notice of Hearing, dated 4 April 2013, was issued listing this matter for Thursday 25 April 2013. The Defendant filed a Notice of Intention to Act in Person on 9 April 2013.
On 25 April 2013, when this matter was listed at the request of the Plaintiff, Mr. Swan, by letter of same date, requested for the hearing to be relisted to 9 May 2013 to accommodate a priority matter before an Acting Magistrate in the Court below. Mr. Swan's delist letter was not copied to the Defendant. Nonetheless, a Court Administrator acting on behalf of the former Registrar, confirmed a relisting for 16 May 2013.
On 16 May 2013 the Defendant, Veleka Eve, appeared before the learned Justice Carlisle Greaves as a litigant in person. Counsel for the Plaintiff also appeared. It seems from the learned judge's handwritten note of the hearing that Ms. Eve informed the Court that she had or would retain Mr. Worrell to represent her. Indeed, four days later on 20 May 2013, Mr. Worrell filed a Notice of Appointment of Attorney confirming his representation of the Defendant.
At the 16 May 2013 hearing, Greaves J ordered for the Defendant to comply with the 19 April 2012 directions within a 14 day period and for the parties to ‘ follow the Order per time periods stated therein.’ The pre-trial directions, as can be implicitly understood from the 16 May 2013 Order, required the Defence to file its List of Documents within 14 days of the Order. The said Order by Greaves J also specified for the parties to exchange witness statements within a 28 day period and leave was granted for the filing of expert evidence from the Defendant with a provision for reply expert evidence from the Plaintiff. From 16 May 2013 the matter was adjourned to 11 July 2013.
On 11 July 2013 Mr. Worrell made his first Court appearance in this matter before Greaves J. It appears from the Court record that Mr. Swan, on behalf of the Plaintiff, failed to appear on this occasion. Unsurprisingly, the Court acceded to Mr. Worrell's request for an adjournment and the matter was adjourned for one month. Mr. Worrell, a known offender for failing to file perfected Orders with the Court, did not draw up an Order arising out of the 11 July 2013 hearing. However, by reference to the learned judge's handwritten note, it is clear enough that the Court ordered for the Registrar to list the matter again in one month. A return date was not specified.
A month of Thursdays thereafter on 15 August 2013, Mr. Swan appeared before the learned Justice Charles-Etta Simmons. On this occasion, Mr. Worrell was not present. There are no documents on the Court file which would suggest that the Registrar (my learned predecessor, Charlene Scott) issued a Notice of Hearing to either party to appear on 15 August 2013. Mr. Swan initially suggested that a Notice of Hearing must have been issued on the basis that he could not otherwise explain how he knew to appear before Simmons J on 15 August 2013. However, Mr. Swan also accepted that he regularly appears in the Thursday Civil Court Chambers session on various matters and that it is equally plausible that he noticed this matter on the cause list while attending on other unrelated matter(s).
Notwithstanding, at the 15 August 2013 hearing Simmons J noted on the record that the matter was set for mention from 11 July 2013. Seemingly, the learned judge proceeded on the basis that both parties had sufficient notice to appear. The Court made an order in the following terms:
“ Unless the Defendant complies with the order of 16 th July 2013 within 14 days of the date hereof, the Defence shall be struck out and Judgment to the Plaintiff shall be ordered.”
It is clear, as was accepted by both parties, that the above reference in the Order to 16 July 2013 was an error and that it was intended for the Order to instead refer to the previous order of 16 May 2013.
It is an agreed fact between the parties that the Mr. Swan caused a copy of the 15 August 2013 Unless Order to be sent to the Defendant's home address by registered mail. However, Mr. Swan accepted that he never served the Defendant's Counsel, Mr. Worrell, with a copy of the Order.
All the same, on 20 September 2013, Simmons J made the following Order on the papers (ie. without a hearing): “ Pursuant to the non-compliance of the Defendant with the order of July 16th 2013 and the failure to comply with the order of August 15th 2013 the Defendant's Defence is struck out and Judgment to the Plaintiff is ordered.”
There is no evidence or suggestion that a copy of this Order was served on Mr. Worrell. In fact, what followed was the filing of a Writ of Execution by the Plaintiff on 15 October 2014. Notably, the Plaintiff never filed a Judgment Summons.
A Court Administrator, by letter dated 22 October 2014, advised Mr. Swan on his omission to file a Praecipe which he later filed more than two years later on 6 May 2016. Mr. Swan also refiled his writ of execution on 6 May 2016. This prompted the Registry to direct Mr. Swan to file a Notice of Intention to Proceed pursuant to the Order 3(6) of the Rules of the Supreme Court 1985.
Over a month later, a Notice of Intention to Proceed was filed by the Plaintiff on 10 June 2016. Some four months later, Mr. Swan wrote to the Court to inquire as to the status of the Writ of Execution without receipt of a reply.
On 7 December 2016 Mr. Worrell filed a Search Praecipe to search the Court file having obviously received a copy of the writ of execution. Some three weeks thereafter on 29 December 2016, Mr. Worrell filed a Summons application to stay the Writ of Execution. This application was supported by affidavit evidence from the Defendant, Veleka Eve. In her affidavit sworn on 23 December 2016, Ms. Eve expressed surprise as to how the proceedings had reached this point. Ms. Eve also stated that the Orders of 15 August 2013 and 16 July 2013 were never served on her or otherwise communicated to her. In the same affidavit, she said that she was assured by her Counsel that even he was unaware of the said Court fixtures. (It is clear that there are no Orders of 16 July 2013 in these proceedings. The reference to a 16 July 2013 Order was erroneously stated in the Unless Order made by Simmons J on 15 August 2013).
On Thursday 12 January 2017 and on 9 March 2017 the Defendant's summons to stay the writ of execution was adjourned by the learned Justice Stephen Hellman for lack of service on the Plaintiff. I was told by Counsel that the learned judge also advised Mr. Worrell that he would have to file a summons to set aside judgment if he intended to challenge the judgment.
On 23 March 2017 the matter came before me and was further adjourned at the parties' request to 6 April 2017 for Counsel to consider a procedural point. The matter was relisted by agreement from 6 April 2017 to 20 April 2017 to oblige Mr. Swan. However, on 20 April 2017 Mr. Worrell did not appear. Accordingly, I adjourned this matter from 20 April 2017 to 27 April 2017.
On 27 April 2017 Mr. Swan appeared but Mr. Worrell was absent once again. Mr. Swan advised the Court that he personally informed Mr. Worrell about the 27 April 2017 hearing and assured the Court that Mr. Worrell's absence was not for a lack of knowledge on his part. Consequently, I made an Unless Order that the Defendant's summons would be struck out in the event of another non-appearance on the return date fixed for 4 May 2017. On 4 May 2017 both parties appeared before me. and I made another Unless Order that the application to stay the writ of...
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