[1] Ministry of Communications & Works [2] Attorney General Appellant v Clement Cassell Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Barrow, J.A.,Denys Barrow, SC,Justice of Appeal
• Judgment Date: 19 June 2008
• Neutral Citation: [2008] ECSC J0619-1
• Judgment citation (vLex): [2008] ECSC J0619-4
• Docket Number: HCVAP 2008/006
• Date: 19 June 2008

Between:

[1] Ministry of Communications & Works

[2] The Attorney General

Intended Appellant/Applicant

and

Clement Cassell

Respondent

Between:

[1] Ministry of Communications & Works

[2] The Attorney General

Intended Appellant/Applicant

and

Lauretta Daley

Respondent

[2008] ECSC J0619-1

The Hon. Denys Barrow, SC Justice of Appeal

HCVAP 2008/006

HCVAP 2008/007

IN THE COURT OF APPEAL

Civil Appeal — Extension of time to apply for leave to appeal-Leave to appeal — Setting aside judgment in default of defence against the Crown — rule 13.2 of the CPR-rule 13.3 of the CPR-scope and object of rule 12.3 (1) (b) -whether rule 12.3 (1) (b) applies where default judgment sought against the Crown-whether "a State" under Rule 12.3 (1) (b) of the CPR includes the Crown-whether permission of the court necessary before default judgment may be entered against the Crown.

The intended appellants applied for an extension of time within which to apply for leave to appeal and if granted, for leave to appeal the decision of the master refusing to set aside the judgments in default of defence entered against them in the High Court. In support of this application, the intended appellants contended that rule 12.3(1)(b) of the Civil Procedure Rules required a claimant to obtain the permission of the court before applying for judgment in default of defence against the Crown. The intended appellants argued that the requirement was necessary to comply with section 29 (2)(c) of the Crown Proceedings Ordinance which required that rules of court should provide such mandatory protection to the Crown. Rule 12.3(1)(b) not having been complied with, the intended appellants submitted that under rule 13.2 of the CPR the judgments in default must be set aside. The main issue before the Court of Appeal was whether the use of the term "a State" in rule 12.3(1)(b) included the Crown.

Held: refusing the intended appellants' application for an extension of time within which to apply for leave to appeal and refusing leave to appeal, that:

• (1) Rule 12.3(1)(b) of the CPR 2000 did not require a claimant to obtain the permission of the court before applying for judgment in default of defence against the Crown and so the judgments would not be set aside under rule 13.2 of the CPR 2000;

• (2) The reference in rule 12.3(1)(b) was to a State rather than to the State or the Crown. Rule 12.3(1) referred to four classes of defendants for whom special provision was made, namely, minors, patients, states and diplomatic agents; it made no provision for the Crown. The rules that made special provision in respect of the Crown were contained in Part 59 and there was no provision in this Part to the effect that permission first had to be obtained before judgment in default of defence could be entered against the Crown; and

• (3) There was no realistic prospect of the intended appellants succeeding on appeal in setting aside the judgments in default of defence under rule 13.3 of the CPR 2000.

Barrow, J.A.

1 This application by the intended appellants (the Crown) for an extension of time within which to apply for leave to appeal and, if the extension is granted, for leave to appeal, raises the question whether judgment in default ofdefence can be entered against the Crown in the usual way or whether such judgment may only be entered if permission is first obtained.

Judgment in default against the Crown

2 Judgment in default of defence was entered against the Crown on 20^th November 2007 in each of the underlying High Court proceedings, for damages for trespass in the sum of $165,110.00 and in the sum of $187,704.00, respectively. I use the expression the Crown in the usual way to refer to the Government of Her Majesty the Queen. This usage derives from the fact that it is the government which in practice exercises the executive powers vested in Her Majesty as the head of state. The Crown applied to Master Lanns to set aside the judgments in default of defence on the basis that rule 12.3(1)(b) of the Civil Procedure Rules 2000 ( CPR 2000) had not been complied with because the respondents had not applied for and obtained permission of the court before entering judgment in default of defence against the Crown.

3 Rule 12.3 (1)(b) provides as follows:

"(1) A Claimant who wishes to obtain a default judgment on any claim which is a claim against a:-(a)…

(b) State as defined in any relevant enactment relating to state immunity;must obtain the court's permission." (Counsel's emphasis)

4 The Crown argued before the master that if permission had not been obtained in accordance with rule 12.3(1)(b), then the judgment in default of defence did not satisfy the requirement of rule 12.5(d) that made obtaining such permission a precondition. By virtue of rule 13.2, the Crown argued, the judgment in default must be set aside.

5 Rule 13.2, which is headed "Cases where court must set aside default judgment" provides as follows:

"13.2 (1) The courtmust set aside a judgment entered under Part 12 if judgment was wrongfully entered because in the case of —

(a)…

(b) judgment for failure to defend — any of the conditions in rule 12.5 was

not satisfied." (Counsel's emphasis)

It was the Crown's submission that rule 13.2 of the CPR 2000 places a mandatory requirement on the court.

6 Counsel emphasised that rule 13.2 of CPR 2000 does not give the court discretion on whether or not to set aside the judgment in default if that judgment is entered in contravention of rule 12.5. Nor was the court required to be satisfied that the defendant has a real prospect of successfully defending the claim, as is required when the application to set aside is being dealt with under the discretion given in rule 13.3 of the CPR 2000.

7 On the Crown's submissions, the issue at the centre of the application before the master and the issue at the centre of the intended appeal is the interpretation to be given to rule 12.3(1)(b) of the CPR 2000. Clarification of this issue would determine whether the respondents obtained judgment in default of defence in contravention of the relevant rules, the Crown urged.

8 Before the master the Crown had argued that in theCrown Proceedings Ordinance1 it was provided in section 29(2)(c) that:

"(2) Provisionsshall be made by rules of court and Magistrates' Courts rules with respect to the following matters—

(a)…

(b)…

(c) for providing that in the case of proceedings against the Crown the plaintiff shall not enter judgment against the Crown in default of appearance or pleading without the leave of the court to be obtained on an application of which notice has been given to the Crown;" (Counsel's emphasis)

9 The Crown had argued before the master that rule 12.3(1)(b) gave effect to this requirement of the Ordinance that rules of court should provide that no judgment in default of pleading should be entered against the Crown without leave of the court, to be granted only on notice to the Crown.

10 The master decided that rule 12.3(1)(b) did not make the provision that the Ordinance required. By referring to 'State' but not 'Territory', the master held, the

rule omitted to extend its benefit to Montserrat. In effect, the master decided that rule 12.3(1)(b) made the provision, required by the Ordinance, in relation to states but not in relation to territories. The master apparently agreed with the submission of counsel for the intended appellants that this was not intended but was an oversight. While advertent2 to the argument for the Crown, that if the alleged omission were accepted as fact it would be a "travesty", and that if the protection of the Crown against default judgments was not extended to Montserrat "it would have political implications for Montserrat", the master concluded, in effect, that rule 12.3 (1) (b) did not require a claimant to obtain permission before entering default judgment against the Crown.

Applicability of the permission requirement

11 In support of the Crown's argument that it should be given leave, counsel repeated the contention below that the interpretation of rule 12.3(1)(b) would have serious political implications as it relates to Montserrat and the other Overseas Territories and their status in the OECS. Counsel argued that a number of questions need to be answered in relation to rule 12.3(1). Principally, what does "State" for the purposes of Rule 12.3(1)(b) mean? Does it relate specifically to State Immunity and the rules of state immunity which concern the protection which a State is given from being sued in the Courts of another State? Or is "State" being used in a more generic sense, to mean Governments, and is reference to the relevant enactment a reference to those pieces of legislation which provide Governments with certain types of immunities? Also does "State" mean only independent states? Counsel for the Crown submitted these are questions which only the appeal court can answer.

12 Counsel for the Crown in answer to the questions posed submitted that "State" for the purposes of rule 12.3(1)(b) does not mean Member State. Counsel noted that whereas "Member State" is defined in Part 2 of the CPR 2000, "State" is not

defined therein. Counsel argued that if the intent was that this provision was only to apply to the "Member States" as defined under the rules, the rule would have stated such. By the same token if it was intended for the said rule to apply only to the "Territories" as defined, it would have stated such.

13 It was the submission of the Crown that "State" for the purposes of rule 12.3(1)(b) is intended to have a generic meaning. It is intended to mean Governments on a whole (i.e. those of the Member States and those of the Territories) and the relevant enactment relating to state immunity which would define a State, would be any legislation which would provide a Government immunity from certain types of actions or from certain steps...