st. george west county port of spain petty civil...

Matthew Moonilal & Rachel John v. Richard Dickson 1

ST. GEORGE WEST COUNTY

PORT OF SPAIN PETTY CIVIL COURT

RULING: PART 13 VARIATION OF JUDGMENT ENTERED IN

DEFAULT OF APPEARANCE

CITATION: Matthew Moonilal & Rachel John v. Richard Dickson

TITLE OF COURT: Port of Spain Petty Civil Court

FILE NO(s): No. 251 of 2012

DELIVERED ON: 14th

October 2013

CORAM: Her Worship Magistrate Nalini Singh

St. George West County

Port of Spain Petty Civil Court Judge

REPRESENTATION:

Ms. Jenna Bertrand appeared for the Applicant/Defendant

Ms. Patrice Legendre-Adolphus appeared for the Respondent/Plaintiff


TABLE OF CONTENTS

The Application 3

The Issues 3

The Law 4

(a) Whether the affidavit discloses a defence which has a realistic prospect

of success in the claim. 4

(b) Whether the affidavit shows that the defendant acted as soon as was

reasonably practicable from the time he found out that judgment had

been entered against him. 18

(c) Whether the Court should exercise its discretion to vary the judgment. 20

The Order of the Court 32


1. THE APPLICATION

1. By Notice of Application dated and filed on the 23rd

August 2013, the

applicant/defendant sought an order that the judgment obtained against him on the 3rd

December

2012 be varied.

1.2 This Notice was brought under Part 13.3 of the Civil Proceeding Rules 1998 which

deals with setting aside or varying default judgments. It provides as follows:

"(1) The court may set aside a judgment entered under Part 12 if—

(a) the defendant has a realistic prospect of success in the claim; and

(b) the defendant acted as soon as reasonably practicable when he found out that

judgment had been entered against him.

(2) Where this rule gives the court power to set aside a judgment, the court may

instead vary it".

1.3 Having regard to the above, the Court’s view is that an application to vary default

judgment must be supported by an affidavit which does two1 things. It must:

(a) disclose that the defence has a realistic prospect of success in the claim and

(b) show that the defendant acted as soon as reasonably practicable from the time he found

out that judgment had been entered against him.

2. THE ISSUES

2.1 The issues which therefore arise for consideration in this matter are:

1 As indicated in Nizamodeen Shah v. Lennox Barrow CA Civ. No. 209 of 2008 at page 3 paragraph 11 which

was in turn cited in Anthony Ramkissoon v. Mohanlal Bhagwansingh CA Civ. No. 163 of 2013 at paragraph 6

per Mendonҫa JA.


(d) Whether the affidavit discloses a defence which has a realistic prospect of success

in the claim.

(e) Whether the affidavit shows that the defendant acted as soon as was reasonably

practicable from the time he found out that judgment had been entered against him.

(f) Whether the Court should exercise its discretion to vary the judgment.

3. THE LAW

(a) Whether the affidavit discloses a defence which has a realistic prospect of success.

3.1 A determination of whether an affidavit discloses a defence which has a realistic prospect

of success in a claim involves a consideration of the meaning of the term "realistic prospect of

success". I turn now to an examination of the meaning of this term.

Meaning of Realistic Prospect of Success

3.2 The meaning of “realistic prospect of success” has been discussed in AD (Ivory Coast)

v. Secretary of State for the Home Department 2013 WL 617524. Their Lordships noted the

definition set out in the Court of Appeal by Lord Justice Laws in R on the application of (AK

(Shri Lanka)) v. Secretary of State for the Home Department [2009] EWCA Civ 447 at

paragraph 34 which is as follows:

"A case which is clearly unfounded is one with no prospect of success. A case

which has no realistic prospect of success is not quite in that category; it is case

with no more than a fanciful prospect of success. “Realistic prospect of success”

means only more than a fanciful such prospect".


3.3 "No more than a fanciful prospect of success" appears to be a relatively low hurdle to

cross albeit not as low as the "defence upon its merits" test which is used to set aside default

judgments under Section 11 of the Petty Civil Courts Rules (made under section 53 of the

Petty Civil Courts Act Chap. 4:21) which provides that:

“Where a defendant upon a Default Summons fails to file the affidavit or notice to

obtain leave to defend within the time limited for so doing and judgment for the

plaintiff upon his claim has been entered accordingly, the Judge may upon

application made by the defendant set aside the judgment upon such terms as to

costs or otherwise as he may think just, and allow the defendant thereafter to

defend the whole or such part of the claim as he may think proper. Any

application made in this behalf must be supported by affidavit disclosing a

defence upon the merits and explaining the neglect, and notice of the application

together with a copy of the affidavit shall be served upon the plaintiff or his

Attorney-at-law at least three clear days before the date fixed for the hearing of

the same” (emphasis mine)2.

3.4 In fact Lord Malcolm in the case of MAS (Somalia) v. Secretary of State for the Home

Department [2011] CSOH 95 at paragraph 8 said that:

"The relevant case law has repeatedly emphasised that this is a low test, akin to

assessing whether there is a more than fanciful prospect of success".

This same judge went so far as to state in AH (AP) v. Secretary of State for the Home

Department [2010] CSOH 7 at paragraph 32 that:

2 This is an application for the variation of default judgment. Since there is no provision for this procedure in the

Petty Civil Court legislation, I have resorted to applying the Civil Proceeding Rules 1998.


"… I should answer the question in the negative only if it is clear that the

petitioner's case is bound to fail …".

Further, in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ

1495 at paragraph 7 Lord Justice Buxton described the test as "modest".

3.5 How then should this Court go about the process of actually determining whether the

applicant/defendant has a realistic prospect of success in the claim? After all, I am confronted by

affidavits proffered by the applicant/defendant and the respondents/plaintiffs which contradict

each other on all triable issues but when considered in isolation, are not inherently unbelievable

standing on their own. Mr. Justice Moosai as he then was, in the often quoted3 matter of Knolly

John v. Brenda Mahabir, Chanderballi Mahabir, Saran Kissoondan, Mona V. John and

Nigel Sookdeo No. Cv. 2005-00866 at page 5 cautioned against conducting a microscopic

assessment of the evidence or embarking upon a mini trial. This certainly accords with

commonsense in a situation such as this, since the deponents' assertions on affidavit have been

untested by cross examination. Indeed in Day v. Royal Automobile Club Motoring Services

Ltd [1999] 1 WLR 2150 Ward LJ at page 2157 at paragraphs C-D warned that:

"...judges should be very wary of trying issues of fact on evidence where the facts

are apparently credible and are to be set aside against the facts being advanced by

3 See Design Collaborative Associates Limited & Genivar Trinidad and Tobago Limited v. Urban

Development Corporation of Trinidad and Tobago Limited at page 11; Michael Hinds v. Dr. Steve

Budhooram, Medical X-Ray and Diagnostic Clinic Ltd & The South-West Regional Health Authority CV

2011-04367 at page 6; John Horsham v. Roopnarine's Linen Closet and Interior Accents Limited CV 2011-

03821 at page 2; Judy Bobb v. Leslie Amedee, Long Beach Hotel Ltd & Guardian General Insurance Ltd CV

2011-03617 at page 4; Hyacinth Seaton v. Randy Glasgow Productions Limited & The Attorney General of

Trinidad and Tobago for the Ministry of Sports and Youth Affairs Claim No. CV 2011-02492 at page 7;

Shafaz Babwah v. Shira Babwah & Zainool Babwah CV 2011-01771 at page 4; Delora Buckradee v. Winston

Buckradee Naidoo & Winston Buckradee Naido CV 2011-00962 at page 7; Francis Vincent v. Merlene

Vincent & The Attorney General of Trinidad and Tobago CV 2008-01217 at page 4; Trevor Benjamin v.

Sumintra Ramsaroop & Fellton Edwards CV 2008-04004 at page 4.


the other side. Choosing between them is the function of the trial judge, not the

judge on the interlocutory application, unless there is some inherent improbability

in what is being asserted or some extraneous evidence which would contradict it".

To accommodate this concern, Ward LJ stated that it was incorrect to use the real prospect of

success test in a positive way and so, it was said that a judge should not be asking himself

whether what the applicant/defendant says establishes a defence with a real prospect of success.

Indeed to approach the issue in a positive way wrongly encourages judging facts on affidavit and

coming to a provisional view on probable outcome. Rather, his Lordship suggested that a judge

should approach the question negatively and ask himself whether what the defendant says has no

real4 prospect of being a successful defence to the plaintiff's claim because, if it is that there is

something in the defence which can be said to have a prospect of being a successful defence to

the claim, then the defence of the applicant/defendant discloses a defence which has a realistic

prospect of success in the claim.

3.6 Ward LJ's approach was followed by Deputy Judge Alan Boyle QC in Charis

Manolakaki v. John Constantinides [2003] EWHC 401 (Ch) where his Lordship offered what

in this Court's view is a helpful manner to deal with the situation where a court must exercise its

discretion when it has before it, competing assertions of fact, neither of which, on its own, are

inherently incredible. This is what is said at paragraph 46 of the judgment:

4 The term "realistic prospect of success" in Part 13.3 of the Civil Proceeding Rules 1998 and the "real prospect of

success" which is used in English jurisdiction are similar in meaning and as such I find English Case Law instructive

in this regard. For this interpretation I have been guided by the learning in the matter of Swain v. Hillman [2001] 1

AER 91 at 92 paragraph j where it is stated that:

"The words 'no real prospect of succeeding' do not need any amplification, they speak for

themselves. The word 'real' distinguishes fanciful prospects of success... they direct the court to

the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success".


"I take it from these passages that whether in any particular case there is “a real

prospect of successfully defending the claim” must ultimately turn on a judgment

to be made on the particular facts of the particular case, applying commonsense,

and taking account of the requirement that the defence should carry some degree

of conviction. The court should not attempt to judge questions of fact on

conflicting statements which have not been tested by cross-examination and

should avoid attempting to try issues of fact where apparently credible facts are

advanced by each side. There may be cases where the court can reach the view

that there is no real prospect of successfully defending the claim, in which case

the judgment must be allowed to stand. But if the court is unable to reach that

conclusion on the materials before it, it may be, depending on the circumstances

of the particular case, that the court has to conclude that there is a real prospect of

successfully defending the claim".

3.7 I therefore approach the present case on the basis that the question for the Court is a

negative one and it is whether it is open to the Court to conclude that the defence of

applicant/defendant has no realistic prospect of being a successful defence to the plaintiff's claim.

To answer this, I have found it necessary to start with an examination of the affidavit of one of

the respondents/plaintiffs -that is, Rachel John dated and filed on the 23rd

August 2013 in

response to the application.


The Affidavit of the second named Respondent/Plaintiff

3.8 On an examination of this document, the respondents/plaintiffs claim $6,500.00 TTD

plus costs. This sum of money is due to the respondents/plaintiffs because according to the

second named respondent/plaintiff, they made a down payment on a second hand car which they

never received from the applicant/defendant owner of the vehicle. The money was advanced on

the 7th

May 2012 and was never repaid.

3.9 The affidavit reveals that on the 7th

May 2012, the respondents/plaintiffs entered into a

written agreement with the applicant/defendant for the purchase of a Hyundai Accent motor car

at a cost of $15,000.00 TTD. This is what the agreement stated:


CONTRACTUAL AGREEMENT

HYUNDAI ACCENT KOREAN PBF 5310

This agreement made this 7th

day of the Fifth Month 2012 between Richard Dickson of L.P 59

Comprehensive Drive, Barataria holder of drivers permit #864388F and Mathew Moonilal of 22 Zina

Drive, Pleasantville permit #872281F.

I, Richard Dickson agree to sell Matthew Moonilal one Hyundai Accent Korean PBF 5310, chassis

#KHHUF3INATU552326, Engine # G4EKW505274 for the sum of fifteen Thousand Dollars

($15,000.00) to be paid in the following terms:

Six Thousand Dollars ($6,500.00) down-payment and a balance of Eight Thousand Five Hundred Dollars

($8,500.00) to be paid in two monthly installments on the 7th

June and the 7th

July, 2012 amounting to

$2,800.00 and the last installment of $2,900.00 to be paid on the 7th

August, 2012.

Within the installment period all maintenance and protection of the vehicle will be the buyer's (Mr.

Moonilal) responsibility.

_____________________ _____________________

/s/ Mr. Richard Dickson /s/ Mr. Matthew Moonilal

Seller Buyer

_____________________ _____________________

/s/ R. John 7/05/2

Witness Date

Failure to make payment following this agreement will result in the seizure of the vehicle and loss of all

payment including the down-payment.


3.10 According to the second named respondent/plaintiff, after entering into the agreement

with the applicant/defendant, the respondents/plaintiffs took possession of the vehicle and on the

10th

May 2012, the first named respondent/plaintiff -Matthew Moonilal, started the car and as

soon as he did this, it began to operate defectively in that the reverse gear did not work. The

second named respondent/plaintiff stated that no attempt was made to repair the car that day and

it was left parked at the home of first named respondent/plaintiff. The next day, the

respondents/plaintiffs contacted the applicant/defendant and requested that he visit the home of

the first named respondent/plaintiff. The applicant/defendant complied and upon his arrival, he

was informed that the respondents/plaintiffs were unable to use the vehicle. They then enquired

from the applicant/defendant whether he had any proposals with respect to the vehicle. The

applicant/defendant took possession of the vehicle and promised to repair the vehicle and return

it to the respondents/plaintiffs. Two weeks passed and when contacted, the applicant/defendant

indicated to the respondents/plaintiffs that he was thinking of selling the car and bringing the

transaction to an end. By this time, the respondents/plaintiffs had already paid to the

applicant/defendant the sum of $6,500.00. Neither this sum of money nor the car was ever

returned to the respondents/plaintiffs.

The Affidavit Filed on Behalf of the Applicant/Defendant

3.11 In light of the aforementioned, I conclude that on the face of it, the claim itself is one that

this Court has jurisdiction to entertain. So it is therefore necessary for me to look at the affidavit

dated and filed on the 23rd

August 2013 in support of the Notice of Application to vary the

Respondents/Plaintiffs' judgment under the hand of Richard Dickson, to see whether it is open to


the Court to conclude that the defence of applicant/defendant has no realistic prospect of being a

successful defence to the respondents/plaintiffs' claim.

3.12 According to Richard Dickson, on the 7th

May 2012, he entered into an agreement with

the respondents/plaintiffs for the sale of his Hyundai Accent PBF 5310 for the sum of

$15,000.00. This agreement is set out at paragraph 3.9 at page 10.

3.13 The applicant/defendant states that before entering into the agreement with the

respondents/plaintiffs, he allowed them one working day to test drive the vehicle and do any

checks which they may have found necessary before purchasing the said vehicle. Pursuant to

this arrangement, the respondents/plaintiffs test drove the vehicle and found same to be in good

working condition and suitable for their needs. Following this, both sets of parties entered into

the said agreement for sale. The respondents/plaintiffs then made a down payment of $6,500.00

with the balance of the purchase price to be paid in three future installments. The

respondents/plaintiffs took possession of the vehicle on the 7th

May 2012 and it was only on the

19th

July 2012 that the respondents/plaintiffs contacted the applicant/defendant to inform him

that the vehicle was not working and a mechanic estimated that it would cost $3,500.00 to repair.

The applicant/defendant states further that the respondents/plaintiffs returned the vehicle in

breach of the agreement for sale since it was a condition of the agreement that they were to be

responsible for the maintenance of the vehicle whilst it was in their possession. As such the

applicant/defendant states that he is not responsible for effecting repairs to the vehicle as the

damage to the vehicle necessitating repairs occurred whilst the vehicle was in the possession of


the respondents/plaintiffs. On this basis, the applicant/defendant contends that he never

renounced the agreement for sale and is not liable for the sum claimed against him.

The Legal Basis upon which the Respondents/Plaintiffs' Case Rests

3.14 Counsel for the respondents/plaintiffs Ms. Patrice Legendre-Adolphus submits that the

case against the applicant/defendant is based upon one main plank. It is that the vehicle was not

of merchantable quality. In this regard counsel drew the Court's attention to section 16(2)(a)

and (b) of the Sale of Goods Act Chap. 82:30 which states that:

"Where the seller sells goods in the course of a business, there is an implied

condition that the goods supplied under the contract are of merchantable quality,

except that there is no such condition—

(a) as regards defects specifically drawn to the buyer’s attention before the

contract is made; or

(b) if the buyer examines the goods before the contract is made, as regards defects

which that examination ought to reveal".

Counsel contends that the case for the respondents/plaintiffs is that the defects in PBF 5310 were

never specifically drawn to their attention by the applicant/defendant before the contract was

entered into or at all. Further although the respondents/plaintiffs were in fact allowed a day to

test drive the car, the defects in PBF 5310 were not of a nature that could be discerned from an

examination. As such, if the Court believes the respondents/plaintiffs' version of what happened,

then it is open to premise liability of the applicant/defendant on the finding that there was a

renunciation of the agreement by the applicant/defendant and the respondents/plaintiffs are

discharged from liability and this is coincident with the right to sue for damages.


3.15 Having considered the respondent/plaintiff’s case and, having apprised myself of the

plank upon which liability is based, I frame the issue in the negative perspective and consider

whether the affidavit of Richard Dickson raises nothing that can propel this matter into one that

is triable.

The Legal Basis upon which the Applicant/Defendant's Case Rests

3.16 The affidavit filed by the applicant/defendant seeks to relieve the deponent from liability

for breach by relying on the term of the agreement which states that "within the installment

period all maintenance and protection of the vehicle will be the buyer's... responsibility". The

effect of this term according to counsel for the applicant/defendant Ms. Jenna Bertrand, is that it

separates the passing of risk from the passing of property and so, notwithstanding the fact that

this is a conditional sale agreement, responsibility for repairs rested squarely on the shoulders of

the respondents/plaintiffs once they took possession of the vehicle -even though title did not pass

to them. For this reason the applicant/defendant was never responsible for effecting repairs to

the vehicle and he is not, in light of the aforementioned, in breach of contract.

3.17 To support this position counsel draws the Court's attention to three sources of law. One

is Beale, Hugh. Chitty on Contracts. 30th ed. London: Sweet & Maxwell, 2008 Volume II

at paragraph 43-016 which is relied upon to establish firstly, that the agreement for sale in the

instant case is a conditional agreement to which the Sale of Goods legislation applies. This is

what is said by the learned author:

"A conditional sale agreement is an agreement for the sale of goods under which

the purchase price or part of it is payable by instalments, and the property in the


goods is to remain in the seller (notwithstanding that the buyer is to be in

possession of the goods) until such conditions as to the payment of instalments or

otherwise as may be specified in the agreement are fulfilled. Such a transaction is

a contract for sale of goods and is governed by the Sale of Goods Act" (emphasis

mine).

Following from this Counsel submits that section19(1) of the Sale of Goods Act Chap. 82:30 is

therefore directly relevant to the facts of the instant matter. This section states that:

"19. (1) Where there is a contract for the sale of specific or ascertained goods, the

property in them is transferred to the buyer at such time as the parties to the

contract intend it to be transferred" (emphasis mine).

Since this provision states that property in certain goods will pass only when the contracting

parties intend it to, counsel contends that in this case, the effect of the aforementioned clause in

the agreement for sale is that, it passed risk once physical possession in the goods passed to the

buyers. In same vein, section 22 of the Sale of Goods Act Chap. 82:30 states that:

" 22. Unless otherwise agreed, the goods remain at the seller’s risk until the

property therein is transferred to the buyer, but when the property therein is

transferred to the buyer the goods are at the buyer’s risk whether delivery has

been made or not. However, where delivery has been delayed through the fault of

either buyer or seller, the goods are at the risk of the party in fault as regards any

loss which might not have occurred but for such fault. Nothing in this section

shall affect the duties or liabilities of either seller or buyer as a bailee or custodier

of the goods of the other party (emphasis mine)".


The relevance of this provision being that in this matter, it was "otherwise agreed" and as such

risk did not remain with the seller. To support this interpretation, counsel drew the Court's

attention to the learning set out at Beale, Hugh. Chitty on Contracts. 30th ed. London: Sweet

& Maxwell, 2008 Volume II at paragraph 43-218 where it is specifically states that:

"The presumption is that the risk and property pass together. This means that as a

general rule the risk of loss, damage or deterioration falls on the owner of the

goods. But the property and the risk may be separated by agreement (emphasis

mine)".

3.18 Finally, in support of her arguments that the applicant/defendant did in fact raise a

defence with a realistic prospect of success to the claim, counsel placed reliance on the case of

Castle and Another v. Playford (1872) L.R. 7 Exch. 98 which was a case from the Exchequer

Chamber that illustrates the operation of the principle relied upon by the applicant/defendant as

this case decided that it was immaterial in whom the physical possession of the property was; the

real question was at whose risk the goods were. This is how the matter was dealt with by

Cockburn CJ at pages 98 to 99:

"In my opinion our judgment should be in favour of the plaintiffs. I am much

disposed to think, though it is not necessary to decide it, that the effect of this

contract was, that from the moment the cargo was shipped, and the bill of lading

delivered to the defendant, the property passed. I am confirmed in that opinion by

the fact that the parties introduced the clause upon which this dispute has arisen,

and upon which the present question turns, namely, that from the moment the bills

of lading were delivered to the defendant, he should take upon himself all the


risks and perils attendant upon the conveying of the cargo by sea to the port of its

destination. It seems to me that when one person says to another, “I will ship the

cargo upon your account and hand you the bills of lading, (which are the indicia

of the property), and give you the control of it, and you are from that moment to

undertake all the risks attendant upon its transfer by sea;” it is very strong

evidence that it was intended by the parties that the property in the cargo, with all

its risks, should pass. However, I do not think it necessary to decide the case upon

that ground—I put it only alternatively. If that is not the construction of the

contract, I think the true one is this: “If you, the sellers, will undertake to ship me

a cargo of ice, and to forward it by a given vessel to London, and hand me the bill

of lading, so that I may have the control over the cargo, and the distribution of it, I

will engage, when it arrives, to pay you according to what may be its value; and

if, in the meantime, while it is upon the seas, it shall perish through the perils of

the seas, I will undertake to pay you for it according to what may be estimated to

have been its fair value at the time of going down.” That I take to be the

construction of the contract, and I do not think it was intended to make the

stipulation that the cargo should be at the risk of the purchaser contingent upon

the fact of the goods arriving or not in this country, which is the proposition

contended for on the part of the defendant".

3.19 In light of the forgoing, it is my humble view that it cannot be said that the affidavit of

the applicant/respondent discloses no real prospect of being a successful defence to the

respondents/plaintiffs' claim. As such I conclude that the affidavit of the applicant/defendant


enjoys a realistic prospect of success in the claim. Stated in the words of His Lordship Mr.

Justice Kokaram in an oral judgment handed down in the matter of Mohanlal Bhagwansingh v.

Anthony Ramkissoon Claim No. CV 2012-04000 at page 4, "the Defendant's prospects of

defending (is) not speculative... a mere chance nor a mere hope but a real prospect that the

Defendant will succeed in defending this claim".

3.20 I stated earlier in this ruling that the test the applicant/defendant must satisfy is twofold in

nature and in this regard I turn now to ascertain whether the defendant acted as soon as was

reasonably practicable from the time he found out that judgment had been entered against him.

THE LAW

(b) Whether the affidavit shows that the defendant acted as soon as was reasonably

practicable from the time he found out that judgment had been entered against him.

3.21 Before going further I turn to consider whether there is case law which offers guidance as

to the meaning of the phrase "as soon as reasonably practicable". In this regard I have found

some assistance from the case of Slivak v. Lurgi Pty Ltd (2001) 177 A.L.R. 585 where

Gaudron J. remarked as follows:

“The words ‘reasonably practicable’ have, somewhat surprisingly, been the

subject of much judicial consideration. It is surprising because the words

‘reasonably practicable’ are ordinary words bearing their ordinary meaning. And

the question whether a measure is or is not reasonably practicable is one which

requires no more than the making of a value judgment in the light of all the facts.


Nevertheless, three general propositions are to be discerned from the decided

cases:

• the phrase ‘reasonably practicable’ means something narrower than ‘physically

possible’ or ‘feasible’;

• what is ‘reasonably practicable’ is to be judged on the basis of what was known

at the relevant time...”.

3.22 What does the timeline show?

1. Judgment was entered in this matter on the 3rd

December 2012.

2. The judgment summons was filed on the 16th

January 2013.

3. The judgment summons was served on the applicant/defendant on the 4th

February 2013.

4. The applicant/defendant applied for legal aid on the 18th

April 2013.

5. On the 12th

August 2013, counsel entered their first appearances in this matter.

6. The application to vary was filed on the 23rd

August 2013.

3.23 Just over six months elapsed between the date of service of the judgment to the date of

the filing of the application to vary. Out of these six months, just over two months elapsed after

service of the judgment summons on the applicant/defendant before he sought legal advice.

Clearly this is not a case as the matter of Delora Buckradee v.Winston Buckradee CV 2011-

00962 where the applicant/defendant sought legal advice on the very day he was given notice of

the judgment which was entered against him. No reason is given in the affidavit of merit for this

two month delay. The case of Macdonald v. Thorn PLC [1999] All ER (D) 989 however, is

authority for the point that the absence of a good reason for delay is not sufficient to justify the


court’s refusal to exercise its discretion to set aside a default judgment. Indeed Lord Justice

Brooke made the point in this case that "a failure to provide any good explanation for the delay is

not always in itself sufficient to justify a court in refusing to exercise its discretion in a

defendant's favour". As such and considering also that up until 12th

August 2013, the

applicant/defendant was a litigant in person, I conclude that the applicant/defendant has satisfied

me that he acted as soon as reasonably practicable in the circumstances.

THE LAW

(c) Whether the Court should exercise its discretion to vary the judgment.

3.24 Having concluded that both limbs of the Part 13 test have been satisfied by the

applicant/defendant I come now to consider whether in any event I should exercise my discretion

not to set aside but vary the judgment which was given to the respondents/plaintiffs on the 3rd

December 2012 since this is the extent of the application before me. The nature of the variation

sought is this:

"1. That the Order of the Learned Magistrate Nalini Singh dated the 3rd

December 2012 in the sum of $6,500.00 be varied/reduced in the sum of $3000.00

based on the application herein of even date.

2. That the varied sum be paid to the Plaintiffs in installments of $500.00

monthly; and

3. Costs".

3.25 Part 13.3(2) of the Civil Proceeding Rules 1998 provides that:


"Where this rule gives the court power to set aside a judgment, the court may

instead vary it".

The judgment in this case was that the applicant/defendant do pay to the respondents/applicants

the sum claimed of $6,500.00 plus interest at 6% per annum from the date of filing to the date of

judgment. If I were to apply a literal interpretation to Part 13.3(2) of the Civil Proceeding

Rules 1998, it would mean that this Court has the power to revoke this judgment by variation

even though the judgment was a final judgment which disposed of the matter between the

applicant/defendant and the respondents/plaintiffs; after the making of which the Court was in

fact functus officio.

3.26 The law regarding final judgments is set out at paragraph 36 of the judgment of

Buxton LJ in Enron (Thrace) Exploration and Production BV v. Clapp (No.2) [2005]

EWCA Civ 1511 in this way:

“As Willes J said in Great Northern Railway v. Mossop (1855) 17 CB 130 at 132:

'the very object of instituting courts of justice is that litigation should be decided,

and decided finally'. In that spirit, once a judgment has been perfected and entered

it is final in the sense that the court whose judgment it is cannot recall it, even if it

has been obtained by fraud … Once perfected, the judgment can only be attacked

by appeal; or by a collateral action to set it aside, the only ground for such action

being fraud … ”.

3.27 How then does a court legitimately exercise its powers to vary judgment? This is what

the cases say.


3.28 In the case of Lloyds Investment (Scandinavia) Ltd v. Ager-Hanssen [2003] EWHC

1740 (Ch) Patten LJ refused to vary the order of a deputy judge of the high court. The facts of

the case, briefly stated are that, the defendant agreed to sell to the claimant shares in a company.

The agreement contained a clause which allowed the claimant to transfer the shares back to the

defendant. The parties then signed a document entitled "Points of Clarification" which allowed

the defendant to repurchase the shares on the same terms, provided notice was given. The

defendant exercised its option and the claimant claimed in respect of the sum paid and obtained

freezing orders. At the hearing, the deputy judge set aside an earlier judgement obtained in

default of defence, with a condition that the defendant pay into court £1.175million within 28

days. The freezing orders remained in place. The condition was not complied with and the

claimant then took steps to execute the judgment. The defendant applied for an order that further

execution of the judgment against him be stayed on the ground of his inability to comply with

the condition. In arriving at its conclusion on this application, the court felt that the deputy

judge’s failure to consider the effect of the freezing orders and the defendant's asset position was

as a result of the defendant's failure to communicate facts to his representatives, and their failure

to raise them as issues which they considered relevant to the exercise of the deputy judge's

discretion. Against this backdrop it now appeared as though the defendant was seeking to

reargue the application that was before the deputy judge, on grounds which were available to him

then, but on which he chose not to rely. In these circumstances the application was dismissed.

The court felt that if the defendant wanted to challenge the freezing orders which had been made,

an application should have been made for permission to appeal to the Court of Appeal. In


explaining his decision, it was suggested that a "material change of circumstances" would be

what was necessary to request a variation. This is what was said by his Lordship at paragraph 7:

"It seems to me that the only power available to me on this application is that

contained in CPR Part 3.1(7)5, which enables the Court to vary or revoke an

order. This is not confined to purely procedural orders and there is no real

guidance in the White Book as to the possible limits of the jurisdiction. Although

this is not intended to be an exhaustive definition of the circumstances in which

the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High

Court to revisit one of its earlier orders, the Applicant must either show some

material change of circumstances or that the judge who made the earlier order was

misled in some way, whether innocently or otherwise, as to the correct factual

position before him. The latter type of case would include, for example, a case of

material non-disclosure on an application for an injunction. If all that is sought is

a reconsideration of the order on the basis of the same material, then that can only

be done, in my judgment, in the context of an appeal. Similarly it is not, I think,

open to a party to the earlier application to seek in effect to re-argue that

application by relying on submissions and evidence which were available to him

at the time of the earlier hearing, but which, for whatever reason, he or his legal

representatives chose not to deploy (emphasis mine)".

3.29 In the case of Collier v. Williams [2006] EWCA Civ 20, Dyson LJ referred to Patten

LJ's views in Lloyds Investment (Scandinavia) Ltd v. Ager-Hanssen (supra) and did not amplify

5 This is the English equivalent of our local rules governing applications to vary. The actual section reads

as follows: "A power of the Court under these rules to make an order includes a power to vary or revoke the order".


or qualify the "material change of circumstances" test. This is what was said on the issue at

paragraph 40:

"We endorse that approach. We agree that the power given by CPR r.3.1(7)

cannot be used simply as an equivalent to an appeal against an order with which

the applicant is dissatisfied. The circumstances outlined by Patten J are the only

ones in which the power to revoke or vary an order already made should be

exercised under rule 3.1(7)".

The matter was further dealt with at paragraphs 119 to 120 in this way:

"[119] The possibility of recourse to CPR r 3.1(7) remains to be considered. As

we have said earlier, this rule gives a very general power to vary or revoke an

order. It appears to be unfettered. But it is a wrong exercise of this power to vary

or revoke an order where there has been no material change of circumstances

since the earlier order was made and/or no material is brought to the attention of

the second court which was not brought to the attention of the first. A party who

unsuccessfully deploys all his material before a court should not be allowed to

have a second bite of the cherry merely because he failed to succeed on the first

occasion….

[120] In short, therefore, the jurisdiction to vary or revoke an order under CPR r

3.1(7) should not normally be exercised unless the applicant is able to place

material before the court, whether in the form of evidence or argument, which

was not placed before the court on the earlier occasion (emphasis mine)".


3.30 The case of Edwards v. Golding [2007] EWCA Civ 416 is another case which was

endorsed the "material change of circumstances" approach. In this case an order which was

made by the Master allowing the joinder of a defendant was set aside6. The default judgment

which was obtained against this defendant was also set aside. In giving the leading judgment in

the matter, this is what Buxton LJ said on the operation of the CPR Part 3.1(7):

"[24] The basis of that jurisprudence is that the jurisdiction under order 3.1(7) is

not a substitute for an appeal. There must be additional material before the court

in the form of evidence or, possibly, argument. I would reserve the issue of

whether additional argument in itself is enough to attract the jurisdiction of rule

3.1(7), but the general thrust of Collier is that the case before the court before

which rule 3.1(7) is moved must be essentially different from one of simple error

that could be righted on appeal. As was pointed out in the course of argument, it

would be striking if, taking the words of Patten J literally, new facts could lead to

rule 3.1(7) being applied, but that did not apply to a case such as the present,

where not new facts but a completely new understanding of the nature of the

Master's order was before the judge".

3.31 The matter of varying judgments was also dealt with by the Court of Appeal in Roult v.

North West Strategic Health Authority [2009] EWCA Civ 444. This case involved a severely

6 At paragraph 26 of that judgment it was made clear that the exercise of the power in CPR 3.1(7) was approved on

the basis that:

"[The master] made an order intending to keep that issue live, but the form of his order frustrated

his intention. It was open to the judge to hold that since the application should never have been

made in that form, it could be set aside. That is not to usurp the power of the Court of Appeal, but

rather to correct a fundamental procedural error".


disabled claimant who had secured a settlement which was converted into a court order, that his

future costs of care would be quantified on the basis that he lived in a local authority group

home. Subsequently the judge was asked to approve a schedule of damages based on him living

in privately obtained accommodation as the former was thought to be unsuitable. The Court of

Appeal rejected the argument that CPR Part 3.1(7) could be used to vary or revoke the order

approving the settlement in the personal injuries claim. The view of the court was that there had

to be a new development as it were which destroyed the basis upon which the decision was made

or, that erroneous information was given to the court in when the order was made. This is how

the matter was put by Hughes LJ in dealing with the circumstances in which it might be proper to

invoke the operation of CPR Part 3.1(7):

“[15] There is scant authority upon Rule 3.1(7) but such as exists is unanimous in

holding that it cannot constitute a power in a judge to hear an appeal from himself

in respect of a final order. Neuberger J said as much in Customs & Excise v

Anchor Foods (No 3) [1999] EWHC 834 (Ch). So did Patten J in Lloyds

Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch). His

general approach was approved by this court, in the context of case management

decisions, in Collier v. Williams [2006] EWCA CIV 20. I agree that in its terms

the rule is not expressly confined to procedural orders. Like Patten J in Ager-

Hanssen I would not attempt any exhaustive classification of the circumstances in

which it may be proper to invoke it. I am however in no doubt that CPR 3.1(7)

cannot bear the weight which Mr Grime's argument seeks to place upon it. If it

could, it would come close to permitting any party to ask any judge to review his

own decision and, in effect, to hear an appeal from himself, on the basis of some


subsequent event. It would certainly permit any party to ask the judge to review

his own decision when it is not suggested that he made any error. It may well be

that, in the context of essentially case management decisions, the grounds for

invoking the rule will generally fall into one or other of the two categories of (i)

erroneous information at the time of the original order or (ii) subsequent event

destroying the basis on which it was made. The exigencies of case management

may well call for a variation in planning from time to time in the light of

developments. There may possibly be examples of non-procedural but continuing

orders which may call for revocation or variation as they continue – an

interlocutory injunction may be one. But it does not follow that wherever one or

other of the two assertions mentioned (erroneous information and subsequent

event) can be made, then any party can return to the trial judge and ask him to re-

open any decision. In particular, it does not follow, I have no doubt, where the

judge's order is a final one disposing of the case, whether in whole or in part. And

it especially does not apply where the order is founded upon a settlement agreed

between the parties after the most detailed and highly skilled advice. The interests

of justice, and of litigants generally, require that a final order remains such unless

proper grounds for appeal exist (emphasis mine)".

3.32 The principles governing the legitimate exercise of a court's discretion to vary which

have emerged from these cases have been authoritatively summarized in Tibbles v. SIG Plc (t/a

Asphaltic Roofing Supplies) [2012] EWCA Civ 518 by Rix LJ with whom Lord Justices

Etherton and Lewison agreed. This was a case where the claimant sustained severe back injury


at work. He issued proceedings against his employer claiming damages in excess of £1,000.00.

The claim was allocated to the fast track. Following the trial of the claim, judgment was given

to the claimant. He was awarded £750. The defendant was ordered to pay the claimant's costs on

the standard basis to be subject to detailed assessment if not agreed. Detailed assessment

commenced. The defendant contended that, by reason of CPR 44.11, costs prior to the

reallocation of the claim had to be assessed subject to the special rules that related to the small

claims track. The claimant complained that if this were so then, £20,000.00 of his costs, of a total

of £30,000.00 -which according to him was incurred prior to the reallocation order, would be

irrecoverable. The claimant applied under CPR 3.1(7) to vary the reallocation order by adding

words to the effect that the costs incurred up to the date of the order were to be treated as costs in

the fast track. The district judge allowed that application. The defendant appealed against this

variation and it was allowed on the basis that the district judge had exceeded his jurisdiction

under CPR 3.1(7) as that jurisdiction did not extend to the situation where the parties' lawyers

had simply failed to look after their clients' interests in terms of applicable rules of civil

procedure. The claimant in turn appealed this decision and it was dismissed with the result that

he lost the £20,000.00 in pre-allocation costs. This is how the essential principles governing

variation were summarized at paragraph 39 of the judgment:

"(i) Despite occasional references to a possible distinction between jurisdiction and

discretion in the operation of CPR 3.1(7) , there is in all probability no line to be

drawn between the two. The rule is apparently broad and unfettered, but

considerations of finality, the undesirability of allowing litigants to have two bites

at the cherry, and the need to avoid undermining the concept of appeal, all push

towards a principled curtailment of an otherwise apparently open discretion.


Whether that curtailment goes even further in the case of a final order does not

arise in this appeal.

(ii) The cases all warn against an attempt at an exhaustive definition of the

circumstances in which a principled exercise of the discretion may arise. Subject

to that, however, the jurisprudence has laid down firm guidance as to the primary

circumstances in which the discretion may, as a matter of principle, be

appropriately exercised, namely normally only (a) where there has been a material

change of circumstances since the order was made, or (b) where the facts on

which the original decision was made were (innocently or otherwise) misstated.

(iii) It would be dangerous to treat the statement of these primary circumstances,

originating with Patten J and approved in this court, as though it were a statute.

That is not how jurisprudence operates, especially where there is a warning

against the attempt at exhaustive definition.

(iv) Thus there is room for debate in any particular case as to whether and to what

extent, in the context of principle (b) in (ii) above, misstatement may include

omission as well as positive misstatement, or concern argument as distinct from

facts. In my judgment, this debate is likely ultimately to be a matter for the

exercise of discretion in the circumstances of each case.

(v) Similarly, questions may arise as to whether the misstatement (or omission) is

conscious or unconscious; and whether the facts (or arguments) were known or

unknown, knowable or unknowable. These, as it seems to me, are also factors

going to discretion: but where the facts or arguments are known or ought to have

been known as at the time of the original order, it is unlikely that the order can be


revisited, and that must be still more strongly the case where the decision not to

mention them is conscious or deliberate.

(vi) Edwards v. Golding is an example of the operation of the rule in a rather different

circumstance, namely that of a manifest mistake on the part of the judge in the

formulation of his order. It was plain in that case from the master's judgment itself

that he was seeking a disposition which would preserve the limitation point for

future debate, but he did not realise that the form which his order took would not

permit the realisation of his adjudicated and manifest intention.

(vii) The cases considered above suggest that the successful invocation of the rule is

rare. Exceptional is a dangerous and sometimes misleading word: however, such

is the interest of justice in the finality of a court's orders that it ought normally to

take something out of the ordinary to lead to variation or revocation of an order,

especially in the absence of a change of circumstances in an interlocutory

situation (emphasis mine)".

3.33 Adopting that guidance, it seems to me that it would not be appropriate for me exercise

my power under Part 13.3(2) of the Civil Proceeding Rules 1998 to vary any part of the final

judgment obtained on the 3rd

December 2012.

3.34 These are my reasons:—

(1) The grounds upon which final judgment may be varied is very limited in scope. This is in

keeping with the public policy consideration with respect to the principle of finality. In


my view, this is not the sort of case which can be considered to be a truly exceptional one

which mandates a variation to meet the justice of the case.

(2) This is not a case of “erroneous information” being given to the Court which in turn

formed the basis of the judgment which was entered in this matter. Adopting the

terminology of Patten LJ in Lloyds Investment (Scandinavia) Ltd v. Ager-Hanssen

(supra) at paragraph 7, this is not a case where "the judge who made the earlier order

was misled in some way, whether innocently or otherwise, as to the correct factual

position before him". Indeed the only "mistake" which appears to have been made in this

matter is that which was made by the applicant/defendant regarding the date upon which

he was to appear in court. I do not think this warrants the Court varying judgment.

(3) The defence which was belatedly set out in the affidavit to support the application to vary

contains information which was available to the defence at the time that judgment was

given in this matter. The fact that -as was said at paragraph 120 of Collier v. Williams,

the information was "unsuccessfully deployed" because the defence was never filed on

the date set by the Court, nor was an application made to extend the time for filing of the

defence, is not a concern of this Court and the effect of granting this application would be

to allow the defendant to have what can only amount to a second bite of the cherry and

this Court is not prepared to facilitate this.

(4) No indication was made to this Court that there was a material change of circumstances

since I made the order on the 3rd

December 2012.

(5) The fact that this judgment was entered after an ex parte trial following the default of

appearance and default of defence of the applicant/defendant is to my mind, irrelevant

and it would not have mattered if judgment disposing finally of the matter was entered


after a consent order was proffered by the litigants or, if there was a full blown trial on

the merits. The view of this Court is that a final judgment is in fact just that -final

judgment.

(6) The power conferred by Part 13.3(2) of the Civil Proceeding Rules 1998 cannot be

used to sidestep or circumvent the failure by the applicant/defendant to file his defence by

the date which was set by the Court for this to be done. To allow the applicant/defendant

to do same would render useless the unless order which was given in the matter.

3.35 Standing back from this unfortunate series of events and attempting to maintain a fair

balance between both sets of litigants in this application, I have come to the clear conclusion that

it is inappropriate to exercise the jurisdiction under Part 13.3(2) of the Civil Proceeding Rules

1998 to vary the final judgment in this case.

3.36 I proceed now to my order in this matter.

4. THE ORDER OF THE COURT

4.1 It is ordered that the application to vary the judgment of the 3rd

December 2012 fails.

The application is accordingly dismissed.

…………………………………………

Her Worship Magistrate Nalini Singh

Petty Civil Court Judge

st. george west county port of spain petty civil...

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