Michael Edward Smith v Ron Pharoah Siddhartha Melchizedek Magnum

• Jurisdiction: Bermuda
• Judge: Ian RC Kawaley CJ
• Judgment Date: 31 March 2016
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION 2015: 274
• Date: 31 March 2016

[2016] SC 35 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2015: 274

Michael Edward Smith

and

Ron Pharoah Siddhartha Melchizedek Magnum

Mr. Keivon Simons, Smith & Co., for the Plaintiff

Ms Lauren Sadler-Best, Trott & Duncan Limited, for the Defendant

EX TEMPORE RULING

(in Chambers)

Application to set aside order made in absence of party-Order 32 rule 5 (3) of the Rules of the Supreme Court 1985-scope of discretion to order a rehearing

Introductory

1 The Court on 14 ^th January of this year granted a strike-out application made by way of a Summons issued by the Plaintiff with regard to the Defence on 22 ^nd September 2015. In addition to striking-out the Defence, the Court entered judgment against the Defendant in the amount of $35,809.72 with interest together with costs to be taxed. This formed part of the prayer for relief in the Plaintiff's relevant Summons.

2 The circumstances of that hearing on 14 ^th January 2016, as I recall them, was that it was represented to me (and it has been confirmed today) that the hearing was in fact fixed on notice to both parties in the ordinary Chambers List at 10am. The Defendant's Counsel failed to appear. The Plaintiff, Mr. Smith himself, did in fact inform the Court that the Defendant's Counsel was overseas and the Court, forming the view that this was perhaps a debtor who was simply not properly instructing his counsel, encouraged the Plaintiff to proceed with the application and granted the order sought.

3 It appears that the Order was submitted for my signature and was accordingly perfected on or about 15 ^th January 2016 the day following the hearing. Mr Simons, appearing today for the Plaintiff, confirmed that the Order was submitted to the Court without a draft of it being served on the Defendant's Counsel and, further, that the Defendant's Counsel only received a formal notice of the fact that the Order had been made when served with the perfected version of the order.

4 Thereafter the Defendant sprang to life and filed issued a Summons on the 17 ^th February 2016 which sought to set aside the strike-out ruling and the entry of judgment. The application presupposed that this Court had jurisdiction to set aside the Order made in the absence of the Defendant.

Jurisdiction to set aside inter partes orders made against an absent party

5 The jurisdiction to deal with this matter is somewhat obscure in that the Court is more frequently required to consider its jurisdiction to set aside an ex parte order when it is common ground that an ex parte order can be set aside by the judge who made it or indeed a judge of the same rank.

6 As far as a judgment entered in the absence of a party who had notice of a hearing is concerned, the relevant rule is found in Order 32 rule 5(3), which is headed ‘ Proceeding in absence of party failing to attend’. It bears reflecting on what the first three sub-paragraphs of rule 5 say:

‘( 1) Where any party to a summons fails to attend on the first or any resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do.

(2)Before proceeding in the absence of any party the Court may require to be satisfied that the summons or, as the case may be, notice of the time appointed for the resumed hearing was duly served on that party.

(3)Where the Court hearing a summons proceeds in the absence of a party, then, provided that any order made on the hearing has not been perfected, the Court, if satisfied that it is just to do so, may re-hear the summons.’

7 Looking at the plain words of the rule (rule 5(3)), Mr. Simons was entitled to submit that the Defendant is unable to avail himself of a rehearing and could only appeal because in this case the Order was perfected before the application was made for a rehearing (or in this case, more strictly, an application was made to set aside the Order was made). That result Ms Sadler-Best contended would be unjust having regard to the unusual circumstances in which the Order of 14 ^th January 2016 came to be made.

8 In brief the matter was sent down for mention in the Chambers List, and not for a substantive hearing on the merits/ on a contested basis. And, more than that, there was genuine confusion on the part of the Defendant's attorneys as to whether or not the matter was in fact going to proceed on that date. Part of the confusion arose because there had been some slippage in the directions agreed by the parties for the filing of evidence. Secondly, Ms William-Smith, the attorney having conduct of the matter for the Defendant, was overseas on medical grounds for an extended period. And, thirdly, enquiries were made of the Court in the week preceding the hearing as to whether the matter was in fact proceeding on the 14 ^th January 2016 and the...