Former state minister blames pandemic for delay in filing defence in $1.3m lawsuit

Prominent attorney-at-law Arnaldo Brown is challenging a Supreme Court ruling which found he had a good prospect of winning a lawsuit filed against him but refused to grant his application to set aside a default judgment because of a three-year-delay in filing Pandea defence.

However, Brown has blamed the COVID-19 restrictions for the delay. He said in court documents that the “throes of the pandemic” caused administrative dislocation and so he missed the deadline.

Brown, a former state minister of government under a previous People’s National Party administration, told The Gleaner last week that he has filed an appeal against the judgment and is awaiting a date for the hearing.

“When the judge found I had a winnable defence to the suit and exercised his discretion to deny me my right to file a defence, he was being prejudicial to me,” Brown said.

He said the judge did not grant an order to set aside the default judgment because he is a lawyer but Brown emphasised that he was not sued in his capacity as a lawyer but was instead sued as a citizen.

Defendants Brown and Beverley Swaby had applied in the Supreme Court on February 20, 2023 for extension of time to file a defence and to have the perfected default judgment, which was served on them in February 17, 2023, set aside. The judge said he was satisfied that the application to set aside the judgment was filed as soon as reasonably practicable after it was brought to the attention of the defendants that it was entered.

The defendants had in 2020 filed an acknowledgment of the claim that was filed in June 2020 but had blamed the COVID-19 pandemic for the three-year delay to file a defence, but the reasons drew sharp criticisms from Justice Dale Staple .

The default judgment stemmed from a suit filed by claimants John Thompson and Ena Thompson to recover a debt of $1.3 million owing for rent at a in a plaza in St Catherine but Brown said in an affidavit dated December 19, 2023 that he was a licensee of the second defendant Swaby and he did not enter into any lease agreement with the claimants. Swaby had said in her affidavit that Brown was a licensee.

After examining letters between the claimants attorney-at-law Lawrence Haynes and Brown, Justice Staple remarked that the least he could say was that the debt was agreed on behalf of Swaby.

In emphasising that cases should be disposed of within a reasonable time, the judge alluded to the fact that trials in the Supreme Court “were being set as far down the road as 2029”.

‘’The defendants, the first defendant (Brown) in particular, are trying to stop the claimants from enforcing a judgment in default obtained by them from as far back as the 24th September 2020,” Justice Staple said.

Justice Staple heard the defendants’ application in January and ruled in February that the application was without merit.

“If the judgment is set aside against the first defendant now, the claimant will likely have a very long wait for a trial in this matter. This would also delay any enforcement against the 2nd defendant. I was advised that trials are now being set for as far down the road as 2029.

“When one considers that much of the case will depend on the memory of witnesses – elderly witnesses at that, as there is no written lease agreement, the prejudice to both sides looms large, “ the judge ruled.

Agreed time standards

The judge pointed out that “we are now in a new era of criminal and civil litigation in the courts in Jamaica. We now have agreed time standards in the Supreme Court of two years of filing to completion. This means that we have agreed that two years is a sufficient allocation of resources to each case,” the judge said.

In recognising that there were exceptions to every rule, Justice Staple said it could not be that the exception becomes the rule. He said, too, that the court must be careful not to allot to a case extra resources to the detriment of other litigants, especially where the litigants seeking to benefit from the extra allotment were dilatory in their conduct.

“In those circumstances, I would not be minded to set aside the default judgment against the first defendant (Brown) either, “ the judge ruled.

The judge then refused the defendants’ application for court orders filed on December 19, 2023 and awarded costs to the claimants.

The claimants had filed a suit to recover $1,350,000 for rent owing at a shop in a plaza in St Catherine. The judge said it was not disputed that the defendants were served on June 22, 2020. The defence should have been filed and served by September 17, 2020. No defence was filed and the claimants obtained a default judgment and served it on the defendants on February 17, last year.

The defendants, in their application filed on February 20 last year, had stated they had a good explanation for the failure to file their defence. An amended affidavit was filed by the defendants in December last year.

Brown said in his affidavit that, subsequent to the filing of the acknowledgment of service, he was not able to file a defence within the prescribed time, because of the COVID-19 pandemic and the increased restrictions imposed by the orders made pursuant to the Disaster Risk Management Act (DRMA). He said further that the “throes of the pandemic” caused severe dislocation, including administrative dislocation, and so the timeline for filing the defence was missed.

Staple, in rejecting Brown’s explanation to be without merit, pointed out that Brown was a counsel of many years’ experience and so should be very much aware of complying with the rules and timelines set out therein as an officer of the court.

“Even more so now that he has been sued. I find therefore that his explanations are without any merit at all,” the judge held.

The judge said he failed to see what the restrictions imposed by the DRMA Orders had to do with the failure to file the defence, because the Supreme Court was open for business during that time.

Swaby alluded to medical conditions and the pandemic as the failure to give instructions to Brown, who was her attorney, to file a defence, but the judge rejected her explanations.

The judge said one of the important aspects of the case was whether or not the defendants had acknowledged the debt and agreed in terms to settle the debt before the suit was filed. The judge referred to a letter dated March 2, 2020 sent on behalf of the claimants by attorney-at-law Lawrence Haynes to Brown and Swaby. The letter stated, “I am instructed by my clients that from November 25, 2017 you were let the aforementioned premises which you occupy as tenants for monthly rent of $50,000.”

The rented premises was Shop 9, upstairs Jet Plaza at Lot 121 Cedar Manor, St Catherine and the letter stated that $1,350,000 was owing. A demand was made for the money to be paid within 21 days. Brown had responded on April 9, 2020 stating that “as discussed we had proposed an initial payment of $1,000,000.00 by 30th April 2020 to address outstanding rent”. The letter further stated that they wished to revise that on that date to $500,000 and then make subsequent payments.

Justice Staple said what could be inferred was that the debt was agreed and terms were being settled. However, the judge said he could only say it was at least agreed on behalf of Swaby. He said the question as to whether it was agreed with Brown was a matter that was more appropriate for a trial and not a question of whether or not to set aside a default judgment. The judge said that, in the circumstances, “given the absence of any evidence at this preliminary stage that would have clearly and irrefutably destroyed Brown’s evidence that he was a licensee of the second defendant, I find that he has a defence with a real prospect of success”.

Swaby, in her affidavit, said Brown was her licensee, therefore Brown has bound his client to having accepted that she owes the rent and there have been terms agreed, the judge ruled. It is simply for her to begin paying the money, the judge said.

Brown told The Gleaner that no terms were agreed and “I did not tie any client to any debt. It was a ‘without prejudice’ correspondence protected by client-attorney privilege, so the judge erred in law in referring to the correspondence. And I will be asking the Court of Appeal to so find. There was absolutely no settlement because, for there to be a settlement, both sides have to agree”, Brown added.

Attorneys-at-law Lawrence Haynes and Rochelle Haynes represented the claimants.

The defendants were represented by attorney-at-law David Stone, instructed by Arnaldo Brown & Co.

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