Attorney General v Universal Projects Ltd (Trinidad and Tobago)

[2011] UKPC 37
Privy Council Appeal No 0067 of 2010

JUDGMENT

The Attorney General (Appellant) v Universal Projects Limited (Respondent)

From the Court of Appeal of the Republic of Trinidad and Tobago

before

Lord Phillips
Lord Brown
Lord Kerr
Lord Dyson
Sir Patrick Coghlin

JUDGMENT DELIVERED BY

Lord Dyson

ON

20 October 2011

Heard on 7 July 2011

Appellant
Peter Knox QC
David di Mambro
(Instructed by Charles Russell LLP)

Respondent
James Guthrie QC
Mr. Neal Bisnath
(Instructed by Bankside Commercial Solicitors)

LORD DYSON

The principal issue that arises on this appeal is whether an application by a defendant to set aside a judgment following non-compliance with a court order extending time for filing a defence in default of which permission is given to the claimant to enter judgment is (i) an application to set aside judgment under CPR 13.3 (as is contended by the Attorney General) or (ii) an application for relief from sanctions under CPR 26.7 (as contended by Universal Projects Limited).

The facts

By a claim form filed on 16 December 2008, the claimant claimed a sum a little in excess of $31million from the defendant as money due under an engineer's certificate issued under a contract for the improvement of the Churchill Roosevelt Highway. The claim form was served on the Solicitor General's Department ("the Department") on the same day. Deborah Jean-Baptiste-Samuel is the attorney who has had the conduct of these proceedings since receipt of the claimant's pre-action protocol letter on 14 November 2008. On 8 December, Ms Baptiste-Samuel obtained a bundle of papers from the Ministry and passed them on to the advocate attorneys at the Department who were assigned to the case. The attorneys were of the opinion that they could not act without formal instructions from the Ministry (which had its own in-house attorneys). Instructions were received on or about 13 January 2009. Neither of the attorneys was aware of the claim form. The document (and it seems other relevant papers) had been stored by inexperienced staff in a vacant office. They were discovered by chance on 30 January.

Meanwhile, on 16 January the claimant had applied for permission to enter judgment in default of an appearance and defence. Under rule 12.2(2), a claimant may not obtain a default judgment against the State without the permission of the court. The application was served on the Department on 23 January. On 2 February, the case was assigned to Ms Renessa Tang Pack, an attorney in the Department. When it was discovered within the Department that the case had previously been assigned to Ms Baptiste-Samuel, on 10 February it was reassigned to her. On the same day, the defendant entered notice of appearance.

By now, the time for filing a defence had expired. On a date between 10 and 20 February, Ms Baptist-Samuel received a telephone call from the Judicial Support Officer to Delzin J to the effect that the "Universal Projects Limited matter" would be listed before that judge for hearing on 11…

JUDGMENT