PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence of justification. He claimed that the order amounted to an order for a retrial.
Held: A default judgment is one which has not been decided on the merits. The Courts have jealously guarded their power to set aside judgments where there has been no determination on the merits, even to the extent of refusing to lay down any rigid rules to govern the exercise of their discretion. There having been no determination on the merits in relation to liability, the court had had jurisdiction to set aside the judgment for damages to be assessed. ‘Walker J held that he had jurisdiction to make the order he did. If wrong, his decision could be reversed by the Court of Appeal which would be bound without going into the merits to set aside his substantive order as a nullity. As between the parties, however, and unless and until reversed by the Court of Appeal, his decision (both as to jurisdiction and on the merits) was res judicata. As a judge of co-ordinate jurisdiction Smith J had no power to set it aside.’
Lord Millett said that an order made by a judge without jurisdiction was obviously vulnerable, but not wholly without effect. It must be obeyed unless and until set aside.
Judges:
Lord Hoffmann, Lord Millett, Lord Rodger of Earlsferry, Lord Carswell, Sir Charles Mantell
Citations:
[2005] UKPC 33, [2005] 1 WLR 3204
Links:
Citing:
Cited – Mason v Desnoes and Geddes Ltd PC 2-Apr-1990
(Jamaica) A section enabled the Court to set aside a judgment where a party had not appeared at the trial.
Held: The reference to ‘the Court or a Judge’ made it clear that the jurisdiction may be exercised by a judge in chambers and: ‘ . . the . .
Cited – Pugh v Cantor Fitzgerald International CA 7-Mar-2001
Where judgment had been entered with damages to be assessed, the issues which could be raised on the assessment of damages were any directly affecting that assessment, but the defendant could not raise an issue which would impugn the judgement . .
Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Cited – Dipcon Engineering Services Ltd v Bowen and Another PC 1-Apr-2004
PC Grenada ‘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) . .
Cited – Lunnon v Singh CA 1-Jul-1999
Once judgment has been given, whether after a contested hearing or in default, for damages to be assessed, the defendant cannot dispute liability at the assessment hearing. . .
Cited – Evans v Bartlam HL 1937
The House emphasised the width of the jurisdiction to excuse default in the case of a defendant seeking to have a default judgment set aside and to be let in to defend.
Lord Atkin said: ‘The principle obviously is that, unless and until the . .
Obiter remarks criticised – Craig v Kanssen CA 1943
There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it . .
Cited – In re Pritchard CA 1963
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that . .
Cited – In re Padstow Total Loss and Collision Assurance Association CA 1882
The High Court had made a winding up order against an insolvent association under a section of the Companies Act 1862 which applied to unregistered companies. The Act prohibited the formation of an unregistered company with more than twenty members. . .
Cited by:
Cited – O’Connor v Piccott and Another PC 17-Feb-2010
(Jamaica) The parties agreed for the sale of land. The seller sought specific performance by the buyer. The buyer had said there was a problem of title. The appellant had failed to defend the proceedings, and appealed against judgment in default. . .
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Defamation, Litigation Practice
Updated: 01 July 2022; Ref: scu.229324