Two weeks ago, the Privy Coun­cil re­fused the At­tor­ney Gen­er­al’s chal­lenge to a Court of Ap­peal mat­ter al­low­ing de­fault judg­ment in favour of the nine men ac­cused of mur­der­ing Vin­dra Naipaul-Cool­man.

The State is now set to pay the men $20 mil­lion, which was award­ed by a High Court judge. But the bill wouldn’t stop at $20 mil­lion; we have to now con­sid­er that the AG’s of­fice will al­so need to pay le­gal costs to the at­tor­neys of the men and if these fees are on a pre­scribed scale, then I as­sure you there will be a con­sid­er­able amount of le­gal fees due and ow­ing.

Aside from fees, the sum may al­so need to in­clude in­ter­est from the time of judg­ment (in the High Court) un­til the pay­ment. It ap­pears that our AG’s of­fice is about to sign off on a hefty cheque, us­ing tax­pay­er dol­lars, which ought not to have oc­curred.  

 Many will won­der, the when, the why and the how. It is fair­ly sim­ple. When a claim is filed against an in­di­vid­ual or com­pa­ny or the state, or any­one for that mat­ter, the Civ­il Pro­ceed­ings Rules make the pro­ce­dure as clear as pos­si­ble. Should a par­ty re­ceive a claim filed against them, they are giv­en eight days from the date of ser­vice of the claim to file an ap­pear­ance stat­ing an in­ten­tion to de­fend (if they wish to de­fend). A de­fence must be filed with­in 28 days from the date of ser­vice of the claim. This 28-day pe­ri­od does not ap­ply to the State, which is giv­en ad­di­tion­al time. The State has 42 days from the date of ser­vice to file its de­fence.  

The rules are not as rigid as many may be­lieve. It is un­der­stood that some­times there are dif­fi­cul­ties in main­tain­ing the set dead­lines. At­tor­neys can seek ex­ten­sions of time from the at­tor­ney act­ing on be­half of the oth­er par­ty or from the court.

Ex­ten­sions to these dead­lines are not un­heard of and may even oc­cur fair­ly of­ten. This does not mean some­one can sim­ply de­cide to de­lay the process; the rules may be flex­i­ble but there is a lim­it.  

What hap­pens should a par­ty fail to file a de­fence or en­ter an ap­pear­ance? Well, the $20 mil­lion award ac­tu­al­ly an­swers that ques­tion. When there is a fail­ure to de­fend, an ap­pli­ca­tion can be made be­fore the court to en­ter de­fault judg­ment. This means judg­ment is giv­en in favour of the claimant be­cause the de­fen­dant chose not to de­fend them­selves.

This is an ex­am­ple of the con­se­quences of ig­nor­ing the rules. There are cer­tain types of mat­ters in which de­fault judg­ment can­not be ob­tained, among them pro­bate pro­ceed­ings, a fixed date claim and an ad­mi­ral­ty claim in rem. In mat­ters con­cern­ing the State, a mi­nor or pa­tient and sev­er­al oth­er mat­ters, per­mis­sion must be sought from the court to ob­tain a de­fault judg­ment.  

 A de­fault judg­ment en­tered against a par­ty could be set aside if it had been wrong­ly en­tered be­cause the court was not sat­is­fied that an ap­pear­ance or de­fence had not been filed.

Ap­pli­ca­tions can al­so be made by at­tor­neys to set aside de­fault judg­ments if the claim was im­prop­er­ly served, if the de­fen­dant has a rea­son­able prospect of suc­cess and ap­plied to the court as soon as prac­ti­ca­ble to set aside. The risk of al­low­ing a de­fault judg­ment to be en­tered is not worth tak­ing.

One would be­lieve that the AG’s of­fice would be ex­pe­ri­enced with re­ceiv­ing such doc­u­ments, as­sign­ing and re­spond­ing with­in the nec­es­sary time­frames. It is wor­ry­ing that the State elect­ed not to chal­lenge the mat­ter and al­lowed it to pro­ceed through the sys­tem un­de­fend­ed.

When the mat­ter was made pub­lic, the AG’s of­fice then sought to act, some three years af­ter the fact. It would have been not­ed above that in set­ting aside de­fault judg­ment, the par­ty must demon­strate they act­ed as soon as rea­son­ably prac­ti­ca­ble. I don’t be­lieve three years fits that re­quire­ment.

In de­liv­er­ing the Court of Ap­peal de­ci­sion, Jus­tice Bereaux even com­ment­ed, “There is no ex­cuse for per­mit­ting this case to pro­ceed to a de­fault judg­ment un­de­fend­ed and then to take an­oth­er three years be­fore at­tempt­ing to set it aside.”  

In fur­ther­ance of this state­ment, His Lord­ship con­clud­ed that the de­lay was “a prob­lem of the re­spon­dent’s own mak­ing.” 

In con­sid­er­ing this case, it should be not­ed that as lay peo­ple, our pock­ets do not run as deep as the State’s. Once served with a claim, un­nec­es­sary risks should not be tak­en be­fore de­fault judg­ment is en­tered against you. It is eas­i­er to de­fend a case than to at­tempt to set aside the de­fault judg­ment. We must al­ways en­deav­our to be pru­dent with le­gal mat­ters.