Heart & Soul Construction Ltd v Veleka Eve
| Jurisdiction | Bermuda |
| Judgment Date | 21 December 2017 |
| Date | 21 December 2017 |
| Docket Number | Civil Jurisdiction 2011 No 84 |
| Court | Supreme Court (Bermuda) |
[2017] Bda LR 142
In The Supreme Court of Bermuda
Civil Jurisdiction 2011 No 84
Mr C Swan for the Plaintiff
Mr K Worrell for the Defendant
The following cases were referred to in the judgment:
Smith v Brown [2014] Bda LR 109
Tarn Insurance Services Ltd (in administration) v Kirby [2009] EWCA Civ 19
Woodhouse v Consignia plc [2002] EWCA Civ 275
Blerim Ethemi v Robert Shiels [2008] EWHC 291
CIBC Mellon Trust Co v Stolzenberg [2004] EWCA Civ 827
Bournemouth and Bascombe Athletic Football Club Ltd v Lloyds TSB Bank plc [2003] EWHC 834
RC Residuals Ltd v Linton Fuel Oils Ltd [2002] 1 WLR 2782
Finnegan v Parkside Health Authority [1998] 1 WLR 411
Smith v Stoneham [2015] Bda LR 64
Paulo v Simmons [2016] Bda LR 132
Application to set aside judgment — Non-compliance with unless order — Construction dispute
RULING of Subair Williams R
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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 28day 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.
11. 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.
12. 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 on15 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).
13. 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...
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