Smith v Stoneham and Stoneham

• Jurisdiction: Bermuda
• Judgment Date: 29 June 2015
• Date: 29 June 2015
• Docket Number: Civil Jurisdiction 2014 No 442
• Court: Supreme Court (Bermuda)

[2015] Bda LR 64

In The Supreme Court of Bermuda

Civil Jurisdiction 2014 No 442

Between:

SEAN SMITH

Plaintiff

and

NICOLE STONEHAM AND CAROL STONEHAM

Defendants

Mr J Durham for the Plaintiff

Mrs S Subair-Williams and Mr J Rogers for the Defendants

The following cases were referred to in the judgment:

Alpine Bulk Transport Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd's LR 221

Wenlock v MoloneyWLR [1965] 1 WLR 1238

Construction dispute — Money due under contract — Application to set aside default judgment — Application to strike-out defence

EX TEMPORE RULING of KAWALEY CJ

Introductory

1. Before the Court today is a composite Summons issued by the Plaintiff seeking to set aside judgment on the Counterclaim and to strike-out the Defence.

2. This action was commenced by way of a Specially Indorsed Writ of Summons which was issued on December 23, 2014 and claims money due under a construction contract which, according to the Statement of Claim, was oral even if it was partly evidenced by writing.

3. The Defendants responded by filing an undated Defence and Counterclaim on January 29, 2015. And the Counterclaim essentially alleged that the Plaintiff failed to complete the works to a satisfactory standard and alleged negligent breach of contract.

4. The response to that was not lightning-fast. Because the Defence to Counterclaim fell due on February 12, 2015 and, in fact, a Default Judgment was obtained on March 24, 2015 and a Defence to Counterclaim was only filed after that. That pleading was clearly late, filed on or about March 25, 2015; and, in effect, it was filed in support of the Plaintiff's application to set aside the Default Judgment.

5. Directions were ordered in relation to the Plaintiff's Summons on April 30, 201Those directions gave the Plaintiff leave to file further evidence within 14 days, because he had already filed an Affidavit dated March 18, 2015 in support of his Summons. The Defendants were given leave to file Affidavit evidence 14 days thereafter and then standard setting down directions were ordered.

6. What happened in fact was that the Defendants through the 1st Defendant filed a Reply Affidavit sworn on May 29, 2015, the Plaintiff having not availed himself of the opportunity to file further evidence. And then, without leave of the Court, the Plaintiff filed his reply evidence on June 22, 2015. As a practical matter it must be noted that the Directions Order was deficient in not providing for an opportunity for the Plaintiff to reply to the evidence filed, really, in answer to his own applications. And so, although objection was made at the beginning of the hearing to the technical breach of the Directions Order which the filing of the Reply Affidavit of the Plaintiff entailed, I exercised my discretion by permitting the Affidavit to be treated as regularly filed, because justice clearly required that the Plaintiff should have an opportunity to respond.

Application to set aside Default Judgment-governing principles

7. The Plaintiff's primary application was obviously to set aside the Default Judgment on the Counterclaim. And his counsel relied on the well-known case of Alpine Bulk Transport Inc v Saudi Eagle Shipping CoInc (“The Saudi Eagle')[1986] 2 Lloyd's LR 221, which the Defendant's counsel agreed represented the applicable law.

8. The relevant principles are set out at in the judgment of Sir Roger Ormrod at page 223 where he says this:

‘The following “general indications to help the Court in exercising the discretion’ (per Lord Wright at page 488) can be extracted from the speeches in Evans v BartlamELR[1937] AC 473, bearing in mind that ‘in matters of discretion no...