Section 16(2) states that, “In the determination of a person’s civil rights and obligations or of any legal proceedings which may result in a decision adverse to his interests, he shall be entitled to a fair hearing within a reasonable time by an independent and impartial court or authority established by law.”
In a typical motor vehicle accident claim, for example, the defendant usually has 14 days from the date of service of the claim to file an acknowledgment of service. If the acknowledgment of service is not filed, the claimant will be entitled to request that default judgment be entered. If the claim includes recovery of unspecified damages, the claimant will need to ask the court to assess damages to indicate exactly what amount the defendant is required to pay.
According to Rule 12.13 of the CPR:
“Unless the defendant applies for and obtains an order for the judgment to be set aside, the only matters on which a defendant against whom a default judgment has been entered may be heard are –
(b) the time of payment of any judgment debt;
(c) enforcement of the judgment; and
(d) an application under rule 12.10(2).”
This, effectively, means that a defendant who attends an assessment of damages may have to sit mute throughout the proceedings while the claimant makes his submissions regarding the appropriate award for damages.
There are two recent cases that have highlighted the flaw in that rule. The Full Court decision in Richards v Brown JMFC Full 05declared that rule 12.13 of the CPR is unconstitutional and invalid. An order was made for the rule to be struck from the CPR and the court held that defendants are entitled to actively participate in the assessment of damages.
The learned judge emphasized that, when damages are assessed, it is a judicial exercise, which requires active consideration and the judicial exercise of a discretion. He emphasised that a defendant at an assessment of damages has a right to be heard and any provision that removes this right is unconstitutional and cannot be demonstrably justified in a free and democratic society. He said that, “Form, in the way of a failure to file an acknowledgment, was not allowed to prevail over the substantive right to be heard. We should not by this decision allow substantive rights to be taken away because of formalities.”
In the Court of Appeal decision in the case of Al-Tec Inc Limited v James Hogan, Renee Lattibeaudaire and the Attorney General  JMCA Civ 9, the respondents had sued the appellant for breach of contract and judgment was entered against the appellant who had failed to acknowledge service of the claim. The appellant, who had made an unsuccessful application to set aside the judgment, appealed the decision. The court ruled that the right to be heard is a fundamental one, provided by section 16(2) of the Charter of Rights and the appellant had the right to address the court on quantum and to present the authorities that support its arguments that the respondents are not entitled to the sums claimed as damages.
Both the Supreme Court and Court of Appeal have put the issue beyond doubt – Rule 12.13 of the CPR is unconstitutional to the extent that it restricts the right of participation by a defendant in an assessment of damages hearing.
Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to firstname.lastname@example.org or email@example.com.