Between: John Felder Plaintiff v Sandra Hill Defendant
| Jurisdiction | Cayman Islands |
| Judge | Justice Robin McMillan |
| Judgment Date | 02 September 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Cause No. G 212 of 2019 |
The Hon. Justice Robin McMillan
Cause No. G 212 of 2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
The scope and application of GCR, O.19 r.9 — The legal principles under which the discretion of the Court to set aside a Default Judgment should be exercised — The importance of recognising the substantive rights of a Plaintiff duly and properly obtained in the form of a regular Judgment
Mr. James Dixon of Priestleys for the Plaintiff
The Defendant in Person
On 12 th August 2021 the Court heard a Summons Application dated 19 th March 2021. The Application sought dismissal of a Default Judgment of McMillan J dated 29 th July 2020 in these proceedings. The Court dismissing the Application, stated briefly the reasons for doing so and indicating that Written Reasons would be delivered in due course.
The Applicant/Defendant sought the following relief:
“1. That the Default Judgment entered into herein dated 29 th July 2020 be set aside on the grounds that:
(a) the Writ of Summons was defective in that the suit was brought against Sandra Hill in her personal capacity when the publications complained of were published by a limited company name Cayman Marl Road Ltd.;
(b) the enforcement of the Default Judgment obtained herein would result in a travesty of justice due to such procedural defect;
(c) the matters complained of in the Statement of Claim are not factual and the Defendant has a meritorious defence in any event;
(d) the Defendant should be afforded an opportunity to file an additional affidavit or affidavits to prove the factual basis of the alleged defamatory publications which form the basis of the Plaintiff's claim; and
(e) in all the circumstances of the case, there is a triable issue in the matter.”
An Affidavit in support of the Application was sworn by the Defendant on 19 th March 2021.
The position of the Plaintiff had already been set out in the course of these proceedings and it was supported by a very helpful Skeleton Argument dated 9 th August 2021.
A chronology of events has been put forward on behalf of the Plaintiff in relation to which no issue or dispute arises.
The Plaintiff filed a Writ of Summons on 27 th December 2019 followed by a Statement of Claim on 29 th January 2020.
Although an Acknowledgment of Service was filed on 14 th January 2020, the Defendant failed to file a Defence.
On 29 th July 2020, following a contested hearing of the Plaintiff's Application for Default Judgment before McMillan J, Judgment was entered by the Grand Court against the Defendant for injunctive relief and damages to be assessed for libel in respect of three articles which the Defendant published or caused to be published in December 2019 and January 2020 (“ Defamatory Articles”) on the website www.cavmanmarlroad. com (“ Website”) and associated social media platforms (“ Social Media Accounts”).
A damages assessment hearing was listed before the Grand Court on 25 th February 2021 and was adjourned until 16 th April 2021 at the Defendant's request.
By way of amplification of the Plaintiff's contentions in the matter, an extremely detailed Statement of Claim dated 28 th January 2019 was filed.
The Plaintiff is and was at all material times a well-known businessman in the Cayman Islands who had traded since around 2004 as a car dealer selling and leasing a variety of vehicles.
The Defendant is described as the controlling mind behind a website commonly known as Cayman Marl Road as well as a number of social media accounts.
It is claimed that several defamatory articles were published by the Defendant about the Plaintiff and attacking his character and his business practices. By way of example, he was described as an “alleged fraudster” and a “ first-rate con artist”. Reference was also made to email correspondence claiming Mr. Felder was, in fact, a “ con artist”.
It is unnecessary for this Court to set out in detail the full extent of the accusations. They were numerous, repetitive and inevitably harmful if in fact untrue and unjustified.
As we have seen, although an Acknowledgement of Service was filed, the Defendant failed to file a Defence. In addition as far as this Court can see at no material time did the Defendant provide to the public or to the Court any indications as to the nature and scope of the evidence that could support such serious allegations.
Instead, following the grant of a Default Judgment the matter proceeded to a damages assessment hearing listed before the Grand Court for hearing on 25 th February 2021 and adjourned until 16 th April 2021 at the Defendant's request as we have seen.
Indeed it was only at that point when the substantive hearing had been adjourned that the instant Summons dated 19 th March 2021 was issued.
The power of the Grand Court to set aside a Default Judgment is found at GCR, O.19, r.9 which states:
“9. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.”
The concept of what is just in these circumstances has been examined in a number of cases, two of which are of particular relevance and application:
“In The Saudi Eagle [1986] 2 Lloyds Red 221, Sir Roger Omerod states that:
“the primary consideration is whether the defendant “has merits to which the court should pay heed” (per Lord Wright at p. 489), not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the defendant...
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