Tracy Pearce Plaintiff v (1) Merlin Seymour and (2) Curtis Seymour T/A Merlin'S Auto Sales Defendants
| Jurisdiction | Cayman Islands |
| Judge | Murphy J |
| Judgment Date | 13 August 1998 |
| Judgment citation (vLex) | [1998] CIGC J0813-1 |
| Docket Number | LEGAL AID NO. 40 OF 199 |
| Court | Grand Court (Cayman Islands) |
| Date | 13 August 1998 |
This is an assessment of damages pursuant to the default interlocutory judgment of Douglas J dated 13 July 1998
At the outset of the hearing before me, defence counsel indicated an intention to apply to set aside the default judgment. He apparently had only raised this with plaintiffs counsel this morning, and no material had been served. There was no material in the court file relating to such an application.
This is an action for damages arising out of the sale of an automobile. On 5 May 1998 Graham J ordered the first defendant to file a list of documents.
On 4 June 1998 Douglas J ordered that the defendants file an affidavit within 14 days disclosing whether they had certain documents in their possession. The defendants did not comply, though that order was apparently made on consent.
On 2 July 1998 Douglas J made an ‘unless’ order for the filing of such an affidavit within seven days.
Plaintiffs counsel took steps for default judgment to be signed by Douglas J on 13 July 1998 pursuant to the terms of his earlier ‘unless’ order. That is how the assessment came on before me.
I heard submissions as to whether I should entertain a defence application to set aside the default judgment, either today or at some other time. (Technically, as far as I am aware, no such application had been set down in accordance with the Rules.)
Defence counsel took the position that had not the court file been ‘closed improperly’ to facilitate the signing of default judgment, an affidavit (the subject matter of the orders of Douglas J) would have been filed 10 July 1998, and that would have been in compliance with the order of Douglas J dated 2 July 1998, given the time provisions of Order 3 Rule 2. That may well be technically correct, and plaintiffs counsel essentially conceded the timing point. But that is not my real concern.
The defence has been skating on thin ice in this regard, and has failed to comply with the orders of this Court, including one apparently made on consent. The defence knew of the signing of default judgment 13 July 1998 (and probably knew default judgment was imminent as early as 10 July 1998), yet the defence brought no application to set the default judgment aside till it purported to try to do so today. This is unacceptable delay, particularly in view of the interlocutory history. The jurisprudence applicable to the setting aside of default judgments is applicable notwithstanding that a judgment may have been irregularly obtained:Odgers on High Court Pleading and Practice 23rd ed. at 76.
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