Meyer v Baynes
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kitchin |
| Judgment Date | 21 January 2019 |
| Neutral Citation | [2019] UKPC 3 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 00102 of 2016 |
| Date | 21 January 2019 |
[2019] UKPC 3
Lord Reed
Lord Carnwath
Lady Black
Lady Arden
Lord Kitchin
Privy Council Appeal No 00102 of 2016
Privy Council
Hillary Term
From the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda)
Appellant
David Dorsett PhD
(Instructed by Simons Muirhead & Burton LLP)
Respondent
Andrea L Smithen
(Instructed by Marshall & Co)
Heard on 20 November 2018
This appeal gives rise to two issues:
i) whether the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda) erred in finding that the defence advanced by the appellant, Mr Meyer, to the claim by the respondent, Mr Baynes, did not amount to exceptional circumstances within the meaning of rule 13.3(2) of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (the “CPR”) which warranted the setting aside of a default judgment which Mr Baynes had obtained against Mr Meyer for damages to be assessed; and
ii) whether Mr Meyer had an appeal to the Board as of right under section 122(1)(a) of The Antigua and Barbuda Constitution Order 1981 (the “Constitution Order”), and the Court of Appeal therefore erred in refusing him leave to appeal.
On 25 July 2011 Mr Baynes was involved in a road traffic accident when the vehicle he was driving collided with a vehicle driven by a Mr Luis Hernandez. Mr Baynes was at that time 73 years old and he suffered a number of injuries. On 30 January 2014 Mr Baynes began these proceedings, not against Mr Hernandez, but against Mr Meyer. He contended that the accident had been caused by Mr Hernandez's negligent driving and that Mr Meyer was liable for the injuries he had suffered on two bases: first, Mr Meyer was the owner of the vehicle and, in contravention of section 3 of the Motor Vehicles Insurance (Third party Risks) Act Cap 288 (“the Act”), had permitted Mr Hernandez to drive it when he was not insured against third party risks; and secondly, Mr Hernandez was Mr Meyer's employee and had been acting in the course of his employment when he caused the accident.
On 30 May 2014 Mr Baynes served on Mr Meyer an amended claim form and statement of claim. However, despite serving an acknowledgment of service on 10 June 2014 stating that he intended to defend the claim, Mr Meyer failed to serve a defence and on 4 July 2014 Mr Baynes secured judgment in default of defence against him under Part 12 of the CPR.
On 3 October 2014 Mr Meyer applied to have the judgment set aside under Part 13 of the CPR. This reads in material part:
“13.3(1) If Rule 13.2 does not apply, the court may set aside a judgment entered under Part 12 only if the defendant –
(a) Applies to the court as soon as reasonably practicable after finding out that judgment had been entered:
(b) Gives a good explanation for the failure to file an acknowledgement of service or a defence as the case may be; and
(c) Has a real prospect of defending the claim.
(2) In any event the court may set aside a judgment entered under Part 12 if the defendant satisfies the court that there are exceptional circumstances.”
Mr Meyer's application came on for hearing before Master Glasgow. He found that Mr Meyer had not acted as soon as reasonably practicable after finding out that judgment had been entered against him and so, in order to succeed on his application, he had to satisfy the court that there were exceptional circumstances within the meaning of CPR rule 13.3(2).
Master Glasgow went on to find that there were indeed exceptional circumstances in this case. He addressed first the claim for breach of statutory duty. In this connection he directed himself by reference to the decisions of the House of Lords in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 and X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and concluded that Parliament did not intend that a breach of the duty imposed by section 3 of the Act should be actionable by an individual harmed by that breach. It is important to note at this point that Master Glasgow did not refer to the decision of the Court of Appeal in Monk v Warbey [1935] 1 KB 75 or the decision of the House of Lords in McLeod v Buchanan [1940] 2 All ER 179 which proceeded on the basis that Monk v Warbey was correctly decided; nor is there any indication that his attention was drawn to these authorities.
Master Glasgow turned next to the claim that Mr Meyer was vicariously liable for the negligence of Mr Hernandez. Here Mr Meyer prevailed on a pleading point. Master Glasgow found that nowhere in his pleadings had Mr Baynes alleged that Mr Hernandez was at the material time employed by Mr Meyer and, in and of itself, this was fatal to the claim.
Mr Meyer also advanced a further argument which he claimed went to both limbs of the claim against him. He contended that he was not at the time of the accident the owner or in control of the vehicle because, although it was originally owned by a company trading under the name of The Sugar Mill Shop, of which he was managing director, it had been sold to Mr Hernandez in April 2011. The Master considered with care the evidence Mr Meyer had filed to support this contention but was not satisfied it established that The Sugar Mill Shop had ever owned the vehicle or that it had been sold to Mr Hernandez by the time of the accident. Indeed, he thought it was, in a number of important respects, inconsistent with the case Mr Meyer was advancing.
Nevertheless, Master Glasgow considered that the deficiencies in the two limbs of Mr Baynes' case were so fundamental that they would in all likelihood result in the dismissal of the claim and amounted to a compelling reason to allow Mr Meyer to defend it. He therefore acceded to Mr Meyer's application and set the default judgment aside.
Mr Baynes then appealed to the Court of Appeal. Pereira CJ, with whom Thom JA and Webster JA agreed, held that Master Glasgow had fallen into error in his reasoning in respect of each limb of the claim. In relation to the claim for breach of statutory duty, he ought to have found that, on its proper construction, the Act did by implication create a civil liability in favour of any one of the limited class of persons whom the statute was intended to protect, namely third party users of the road who it could reasonably be foreseen would be likely to suffer injury or damage by the negligent use of a motor vehicle by another driver. She continued that, had she been in any doubt about the proper interpretation of the Act, her doubt would have been allayed by the decision in Monk v Warbey.
As for the claim in negligence based upon vicarious...
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