Strachan v. The Gleaner Company Ltd & Anor (Jamaica)  UKPC 33 (25 July 2005)
Privy Council Appeal No. 22 of 2004
Leymon Strachan Appellant
(1) The Gleaner Company Limited and
(2) Dudley Stokes Respondents
THE COURT OF APPEAL OF JAMAICA
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 25th July 2005
Present at the hearing:-
Lord Rodger of Earlsferry
Sir Charles Mantell
[Delivered by Lord Millett]
Did Walker J. have jurisdiction to set aside the default judgment after damages had been assessed?
"Any judgment by default, whether under this title or under any other provisions of this law, may be set aside by the Court or a Judge upon such terms as to costs or otherwise as such Court or Judge may think fit."
That Title includes section 247 which provides for the entry of an interlocutory judgment for damages to be assessed. In Mason v Desnoes and Geddes Ltd  2 AC 729, (a case under a different section which enables the Court to set aside a judgment where a party does not appear at the trial), the Board observed that the reference to "the Court or a Judge" makes it clear that the jurisdiction is one which may be exercised by a judge in chambers and, at pp 736-737:
"…the application to set aside a default judgment is not the invocation of an appellate jurisdiction but of a specific rule enabling the court to set aside its own orders in certain circumstances where the action has never been heard on the merits." (Emphasis added.)
"Whilst Saudi Eagle is clear authority, if authority were needed, for the proposition that an application to set aside a default judgment can be made (and, if refused, can then be appealed) notwithstanding that final judgment has been entered, it is certainly not authority for saying that on an appeal against an assessment of damages a previous default judgment can be set aside without any such application ever having been made ..."
"The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure".
If Walker J had no jurisdiction to set aside the judgment for damages to be assessed, was his order a nullity which Smith J had jurisdiction to set aside?
"part of the difficulty is that the phrase 'ex debito justiciae' had been taken as equivalent to a nullity, but, with all respect to Lord Greene's judgment in Craig v Kanssen, it is not. The phrase means that the [defendant] is entitled as a matter of right to have it set aside."
Upjohn LJ distinguished between defects in proceedings which could and should be rectified by the Court and those which were so fundamental that they made the whole proceedings a nullity. These included (i) proceedings which ought to have been served but which have never come to the notice of the defendant at all; (ii) proceedings which have never started at all owing to some fundamental defect in issuing them; and (iii) proceedings which appear to be duly issued but fail to comply with a statutory requirement. These are all examples of orders of the court made in proceedings which are nullities because they have not been properly begun or served. None of them is an example of a case where an order has been made in proceedings which have been properly begun and continued. In re Pritchard itself was an example of the second class; the proceedings had never been started at all. According to Danckwerts LJ, the originating process had no more effect to commence proceedings than a dog licence.
"The first point to be considered is whether, assuming that the association was an unlawful one, and that the Court had no jurisdiction to make the order, an appeal is the proper method of getting rid of it. I think it is. I think that an order made by a Court of competent jurisdiction which has authority to decide as to its own competency must be taken to be a decision b y the Court that it has jurisdiction to make the order, and consequently you may appeal from it on the ground that such decision is erroneous."
At p. 145 Brett LJ said:
"In this case an order has been made to wind up an association or company as such. That order was made by a superior Court, which superior Court has jurisdiction in a certain given state of facts to make a winding-up order, and if there has been a mistake made it is a mistake as to the facts of the particular case and not the assumption of a jurisdiction which the Court had not. I am inclined, therefore, to say that this order could never so long as it existed be treated either by the Court that made it or by any other Court as a nullity, and that the only way of getting rid of it was by appeal."
"An order of the Court of Appeal, if not properly constituted, is a nullity. It is, of course, a proper ground of appeal that the court from which the appeal is brought had no jurisdiction to make the order in question; but if that is found to be the case the court hearing the appeal has no jurisdiction to determine the appeal on its merits but is bound to confirm the position by setting aside the order below as a nullity.
35. The parties cannot confer on us by consent a jurisdiction which we do not possess, and since the issue goes to our own jurisdiction then, contrary to the advice given to the parties by the Court of Appeal … we are bound to enquire into it whether the parties raise it or not."
In the event the Court of Final Appeal held that the original order was a final order from which a two man Court of Appeal had no jurisdiction to hear an appeal, and set aside its order.