Moore, Sandra v Patrick Cawley

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO 2006 HCV 02776

BETWEEN

AND

SANDRA MOORE

PATRICK CA WLEY

CLAIMANT

DEFENDANT

IN CHAMBERS

Marvalyn Taylor Wright instructed by Taylor Wright and Company for the claimant

Sherese Gayle instructed by Nicholson Phillips for the defendant

July 19 and 20, 2007

APPLICATION TO SET ASIDE JUDGMENT, AFFIDAVIT, JURAT AND PART 30

OF THE CIVIL PROCEDURE RULES

SYKES J.

1. This application to set aside judgment foundered, surprisingly, at the most

elementary stage - an absence of evidence. One may say that the point taken by Mrs.

Taylor Wright is a highly technical one. However, counsel is entitled to take all

legitimate points in favour of her client.

2. The allegations against the defendant are not. unusual. Miss Sandra Moore

alleges that she was struck on or about July 23, 2005, by a vehicle driven by Mr.

Patrick Cawley. The accident took place along Marcus Garvey Drive in the parish of

St. Andrew. Miss Moore filed a claim on August 2, 2006. Service of all the relevant

documents was effected on August 14, 2006. Mr. Caw ley filed an acknowledgment of

service through his then attorneys. No defence was filed. Miss Moore f tied a request

for judgment on November 3, 2006. Judgment was entered and the service of the

formal judgment in default of defence served on the defendant's new attorneys on

December 19, 2006.

3. The claim was set for assessment of damages but adjourned pending this

application to set aside the judgment.

4. When the matter came up for hearing Mrs. Taylor-Wright raised the objection

that the document filed in support of the application to set aside judgment was not

an affidavit within part 30 of the Civil Procedure Rules, 2002, I t is not often that

this kind of objection is taken but if it is then, regardless of the opinion of the

court, it must be dealt with.