Adherence to court procedures

In the year 2000, we were given guidelines in the form of CPO 2000 to direct the way matters are to be conducted in civil court and for the preparation of documents that are used in court matters.The guidelines are especially useful for claimants, defendants, registrars and judges to maintain standards and to make sure there is consistency.{{more}} If a party does not comply with a procedure, there would be penalties. A time limit is placed on every procedure and it is incumbent on each party to make sure that the time limits are observed. A claim form would give instructions as to the time allowed for the filing of an acknowledgement of service and a defence. Anyone who is served with court documents must read them carefully for procedural directions. It might be advisable for one to consult a lawyer if one does not intend to pursue the matter on one’s own. The acknowledgement of service and the blank form for defence are normally filed with the claim form.

If you fail to acknowledge service, that is, file the acknowledgement of service document, you could have a default judgment against you. One of the issues that was raised quite recently and which was settled at the Court of Appeal level in a decision, was whether an amended claim form would require an acknowledgement of service.

The issue was resolved in SKBHCVAP 2012/0028 Bilzerian v Wiener et al by Chief Justice the Honourable Dame Janice M. Pereira, who gave strength and support to procedures contained in CPR 2000 Parts 9, 10 and 13. It is especially useful for our legal system when matters of this type are tested in court. Precedents are set for others to follow.

In the above named case, the defendant appealed a decision that was dismissed in the High Court. The case started off with a claim form and statement of claim that was served on the Defendant who duly acknowledged it by filing the required acknowledgement of service within the prescribed time. It was followed up with the required defence within the prescribed time of 28 days.

The Claimant thereafter amended the claim form. The Defendant did not file any further acknowledgment of service within the time for acknowledgement of service of the amended claim form and the Claimant brought a default judgment for failure to file an acknowledgement of service. The Registrar entered the request for default judgment. The Defendant was not satisfied and in an application to the High Court requested that the decision be set aside. The trial judge refused to set aside the default judgment and the Defendant appealed the High Court decision.

The respondent raised the issue of fresh action in the amended claim form, but the Chief Justice rejected this argument because an amended claim form could not strike out the original claim form in this matter. In other words, an amended claim form, which corrected some errors in the original claim form, could not “supersede the original claim.”

The Chief Justice ruled in favour of the appellant, claiming that the judge in the matter had wrongly dismissed the application to set aside. She sent back the matter to the High Court for case management. The appellant was awarded costs. As disclosed, the judge in the High Court should have allowed the matter and set aside the default judgment as an original claim cannot die in this manner.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com