Jersey Unreported Judgments

[2011]JRC051A

royal court

(Samedi Division)

7^th March 2011

IN THE MATTER OF AN EX PARTE APPLICATION

Ian Hamilton King, Director of Recovery Management Services Limited.

judgment

the deputy bailiff:

1.        The Appellant seeks leave to appeal against an order of the Petty Debts Court on 20^th October refusing to set aside a judgment obtained by the Respondent on 18^th August in the default of appearance by the Appellant.  Judgment was in the sum of £1,203.27, interest and costs. 

2.        The claim of the respondent was based upon a contract made by the Respondent with the Appellant.  After the summons in the Petty Debts Court had been issued, there was an important exchange of emails between Mr Ian King of the Appellant Company and Mr Philip Boots, Managing Director of Cashback Limited which was handling the claim on behalf of the Respondent.  The emails are important for two reasons.  First of all, Mr King did not indicate that the Appellant had any defence to the claim - on the contrary the email indicated he would not be in a position to issue a cheque until 17^th August as his co-signatory was away.  Secondly Mr Boots' response makes it plain that the action would be adjourned on Wednesday 11^th August for one week in order to give the Appellant time to forward its cheque in settlement of the summons, Mr Boots concluding by saying that if the payment did not reach his office by 4pm on Tuesday 17^th August, judgment would be sought the following morning. 

3.        The application to set aside the judgment in default was supported by an affidavit sworn by Mr King on 5^th October.  Once again, Mr King did not indicate in that affidavit that the Appellant had any defence to the Respondent's claim.  The application to have the judgment set aside was based upon the premise that he, Mr King, understood that a further week's adjournment had been agreed.  Although his affidavit did not disclose that there was any defence to the claim, it did disclose that the Appellant considered the Respondent was aware that the sums claimed were disputed. 

4.        When the application to set aside the default judgment came to be heard by the Acting Magistrate, who pressed Mr King as to the basis for disputing the claim, there was the following exchange at page 15 of the transcript:-

"Magistrate:  Now, the question is, so far as the Court is concerned, are you admitting liability?

Mr King:  No.

Magistrate:  Because I have to be satisfied.  What you can't do is you can't rely on your arrangement with Mr Lyngard.

Mr King:  No I am not relying on any arrangement.  I am saying that the judgment was taken.  The only reason we are asking for the matter to be satisfied and revisited is (1) I was under the impression that an arrangement had been made for another seven days adjournment, that the Lucas accounts department were fully aware that all we were actually really asking for was verification of account, therefore the signatory, so we could see who had signed for the goods and all the rest of it and verify it that way and then we'd enter into and satisfy anything we were 100% sure of was in our bill". 

5.        The test on whether or not leave to appeal should be given is well settled.  The Appellant must show inter alia:-

(i)        that he has a proper defence to the substantive claim, if the judgment obtained in default were to be set aside;

(ii)       there is good reason why the Appellant did not attend in Court when summoned to do so on the day judgment was obtained by default. 

6.        The Court must then weigh all the relevant factors including the defence to the claim and the error or cause of default in determining whether or not to set aside the judgment having regard to any other relevant factors including the delay in making application to set aside the default judgment, and whether either party would suffer injustice if the default judgment were or were not to be set aside. 

7.        Applying these tests, I am not satisfied on the papers that I have read that the Appellant has disclosed any reasonable defence to the claim of the Respondent.  In those circumstances, it is otiose to consider in any detail the other matters which would fall for consideration because the Appellant has not passed the threshold test in relation to its defence of the merits of the claim. 

8.        I do however indicate that a subordinate reason for refusing leave to appeal would be that I am satisfied on the papers that the terms upon which the adjournment of the claim until Wednesday 18^th August were perfectly plain, and that there was reasonable material before the Acting Magistrate on which he could conclude that the default which led to the judgment being taken in default was that of the Appellant, who, if he did understand that the proceedings would be adjourned on 18^th August, had no reasonable basis for doing so.

9.        Leave to appeal is therefore refused. 

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