Strachan v The Gleaner Company Ltd and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Millett |
| Judgment Date | 25 July 2005 |
| Neutral Citation | [2005] UKPC 33 |
| Court | Privy Council |
| Docket Number | Appeal No. 22 of 2004 |
| Date | 25 July 2005 |
[2005] UKPC 33
Present at the hearing:-
Lord Hoffmann
Lord Millett
Lord Rodger of Earlsferry
Lord Carswell
Sir Charles Mantell
Privy Council
[Delivered by Lord Millett]
This appeal is brought by the plaintiff in the action from a judgment of the Court of Appeal of Jamaica (Panton JA and Cooke JA(Ag); Langrin JA dissenting) dismissing his appeal from the refusal of Smith J to set aside an earlier order of Walker J as being made without jurisdiction. By his order Walker J had purported to set aside a default judgment for damages to be assessed after the damages had already been assessed and a final judgment entered in the plaintiff's favour.
This brief summary of the background serves to indicate the nature of this appeal but it does not do justice to the welter of applications, cross-applications, appeals, orders, orders setting aside earlier orders and orders refusing to set aside earlier orders in proceedings which have got completely out of hand. More than 13 years have passed since the Writ was issued, and the question which now falls for decision is whether, subject only to an outstanding appeal on quantum, there has been a final judgment in the action or whether, as the majority of the Court of Appeal have held, the action has not yet progressed beyond the conclusion of pleadings.
In January 1992 the plaintiff Mr Leyman Strachan brought an action for libel against the publishers of a national newspaper "The Gleaner" and its editor Dudley Stokes (the defendants). The action arose out of the publication of two articles in July 1991. On 9 April 1992 judgment in default of defence for damages to be assessed was entered against the Defendants. On 16 May 1995 final judgment was entered for $510,726 special damages and $22.5 million general damages. This followed a contested six day hearing before Bingham J sitting with a jury at which the defendants were represented and in which they played a full part. On the next day the defendants lodged an appeal against the size of the award, which they claimed was manifestly excessive and which Downer JA later described as "unprecedented in Jamaica". On 22 May 1995 Downer JA stayed execution on the judgment pending the appeal (Bingham J having refused to grant a stay) on terms that the defendants pay the sum of $1 million into an interest-bearing account in the joint names of attorneys for the parties. This was done.
Shortly after the jury's award was publicised in the press two potential witnesses came forward with evidence which, the defendants claim, would enable them to plead justification. On 4 April 1996 they applied to the Supreme Court to set aside the default judgment of 9 April 1992 and for leave to defend the action on the ground that since the date of the judgment fresh evidence had been obtained on the basis of which they had a good defence.
The application came before Walker J (as he then was) on 28 May 1996. At the outset of the hearing the plaintiff raised a preliminary objection to the judge's jurisdiction to set aside the default judgment on the ground that he had no power to do so once damages had been assessed and a final judgment had been entered. The judge overruled the objection and adjourned the substantive hearing of the application to the 16 September. The plaintiff could have appealed the judge's dismissal of his preliminary objection in the interim but he did not.
On 20 September 1996, after a contested hearing which had lasted a further five days, Walker J set aside the default judgment and gave the defendants leave to file and serve a defence within 14 days of his order on terms that they pay the costs thrown away by the abortive hearing before Bingham J and the jury, which they did. He found that on the basis of the new evidence the defendants' proposed defence had a real prospect of success, that they could not be blamed for the delay in making the application, and that setting aside the default judgment would not unfairly prejudice the plaintiff. The plaintiff has never challenged these findings.
Walker J treated the viability of the proposed defence and the delay in making the application as the critical issues, much as he would have done if there had been no assessment of damages and no final judgment in the meantime. He seems to have treated these events as merely the consequences of the delay for which the defendants could not be blamed. It is possible (though he did not say so) that he regarded any particular hardship to the plaintiff which may have been caused by the fact that the assessment hearing had taken place as sufficiently dealt with by the terms as to costs which he was imposing.
The defendants filed their defence on 3 October 1996 and a few days later the plaintiff filed a reply. The defendants applied to the Court of Appeal to order that the money in the joint account and held to await the outcome of the now abortive appeal from the jury's award be paid out to them. The application came before a single Justice of Appeal (Downer JA) sitting in Chambers on 18 November 1996. He refused the application and set aside the order of Walker J on jurisdictional grounds, saying that the judge "had in substance ordered a retrial which he was not empowered to do". On a successful appeal by the defendants to the full court, the Court of Appeal (Rattray P, Gordon and Patterson JJA), observing that there had been no appeal from the order of Walker J and on the understanding that the defendants intended formally to withdraw their appeal from the jury's award, discharged Downer JA's order (thereby reinstating the order of Walker J) and directed that the money in the joint account be paid out to the defendants' attorneys on the termination of the appeal. In addition to finding that as a single member of the Court of Appeal Downer JA had no jurisdiction to set aside the order of Walker J (particularly when there was no application before him and no argument by either party) Rattray P observed that the plaintiff was not challenging the jurisdiction of Walker J to make the order which he did.
The plaintiff took this as a word to the wise. He now belatedly applied to the Court of Appeal for leave to appeal out of time from the order of Walker J, not on the merits, but on the ground that he had no jurisdiction to set aside a judgment which had become final and from which there was pending appeal to the Court of Appeal. The defendants filed an affidavit in answer opposing the application on jurisdictional grounds (which their Lordships consider to be plainly mistaken) and the plaintiff withdrew it. Instead, on 4 March 1997, he applied to the Supreme Court to set aside the order of Walker J on the grounds foreshadowed by Downer JA, alleging that the order was made without jurisdiction and was a nullity which another judge of the Supreme Court could and should set aside.
The application came before Smith J on 15 May 1997. He upheld a preliminary objection by the defendants that he had no jurisdiction to set aside an order made by a judge of co-ordinate jurisdiction. The plaintiff appealed to the Court of Appeal. By a majority the Court of Appeal dismissed the appeal on 6 April 2001. It is from this judgment that the plaintiff now appeals to the Board.
In his judgment Panton JA stressed that the order of Walker J had never been appealed. He observed that, although the foundation of the plaintiff's case consisted of an attack on the validity of his order, no appeal from it was before the Court. He observed that there had been many cases in the Supreme Court in which default judgments had been set aside even after damages had been assessed, and said that he would be "very hesitant" to classify as a nullity an order made in the circumstances that faced Walker J. Ultimately, however, he dismissed the appeal on the short ground that, even if Walker J had no jurisdiction to make the order which he did, it was not open to a judge of co-ordinate jurisdiction to exercise an appellate jurisdiction to set it aside.
Cooke JA(Ag) rejected the argument that the order of Walker J was made without jurisdiction. He agreed with Panton JA that applications to set aside final judgments for liquidated damages after a default judgment for damages to be assessed were commonplace in Jamaica. He based his judgment on the fact that there had been no adjudication on the merits in relation to liability, and concluded that the judgment for damages to be assessed remained a default judgment which Walker J had jurisdiction to set aside. In a dissenting judgment Langrin JA held that by the time Walker J made his order the default judgment had "changed its character" from a default judgment to a final one. He held that, since Walker J had no jurisdiction to set aside a final judgment, it was a nullity which a judge of co-ordinate jurisdiction could properly set aside.
Two distinct questions have been argued before the Board: (1) whether Walker J had jurisdiction to make the order he did; and (2) if he did not, whether Smith J had jurisdiction to set it aside. In their Lordships' opinion, while both questions can be answered without difficulty by reference to principle and policy, they have both been settled by decisions of high authority which were not cited (and in one case was not available) to the Court of Appeal.
Did Walker J. have jurisdiction to set aside the default judgment after damages had been assessed?
Section 258 of the Judicature (Civil Procedure Code) Law of Jamaica provides, in terms similar to those of the corresponding rule in England, that
"Any judgment by default, whether under this title or under any other...
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