Earthquake delayed serving of court papers in Marl Road libel case

The January 2020 earthquake led to a day’s delay in the serving of a statement of claim relating to a libel action against Cayman Marl Road’s Sandra Hill, ultimately resulting in a court setting aside an order for Hill to pay businessman John Felder $105,000 in damages.

The hearing to set aside the earlier judgment was held on 22 Nov. this year, and the reasons behind that decision by Justice Robin McMillan were published earlier this month.

The judge reversed his earlier default judgment, which he made on 15 Jan., because Felder had failed to serve the statement of claim before the expiration of 14 days after Hill gave notice of her intention to defend the case, and his lawyers had failed to disclose this to the court.

The setting aside of the default judgment also meant that a September ruling by Justice Marlene Carter on how much Hill should pay in damages was also abandoned. The default judgment had been based on Hill failing to file a defence.

The court heard that the 14-day deadline would have ended on 28 Jan. 2020 but the statement of claim was not delivered to Hill until the following day. To legally serve a statement of claim outside the time limit, a plaintiff would need the permission of the court to serve the document “out of time”, but no such permission had been sought or granted.

“There is no doubt that in support of the Application for Default Judgment it was represented to the Court on behalf of the Plaintiff that the Statement of Claim was served on 28 January,” McMillan wrote in his ruling.

He noted that affidavits by a senior legal secretary and a corporate administrative assistant from Priestleys – the law firm representing Felder – both stated that the statement of claim was served on 28 Jan. That date was also included in a chronology set out in the plaintiff’s skeleton argument as the date in which the documents were served, and Felder’s legal counsel, in oral submissions in court on 29 July, also stated that the document was served on that date, the judge noted.

“In other words, there is no doubt whatever as to the position which the Plaintiff presented to the Court and which ultimately has been shown to be inaccurate,” the judge wrote.

Hill represented herself in the original hearing, and in a subsequent failed application to overturn the default judgment, but hired law firm Broadhurst as legal counsel to represent her on 16 Sept. this year.

“Subsequently further evidential light has emerged following various enquiries by the Defendant’s newly instructed attorneys and made to the Plaintiff’s attorneys, who themselves have acted throughout the course of this matter,” McMillan said.

A second affidavit by Priestleys’ corporate administrative assistant, dated 19 Nov., described how she had been instructed on 28 Jan. 2020 to serve the statement of claim on Hill, and had driven to the courthouse to file the document. However, a 7.7 magnitude earthquake hit Cayman that day, causing widespread disruption, as well as heavy traffic which the assistant encountered as she made her way to the court house in George Town.

“When I eventually arrived at [the] court entrance, a member of court staff informed me that the court staff had left the building on account of the earthquake. In the circumstances, I was unable to file the [statement of claim] and returned to Priestleys,” the corporate administrative assistant said in her affidavit.

McMillan, in his ruling, said, “In light of these facts and the disappointing manner in which they have ultimately emerged, it is clear there has been material breach on the part of the plaintiff… A material irregularity has arisen and no effort had been made to correct it before the Default Judgment had been sought and obtained.”

He added that “while a major earthquake may well justify an application for an extension of time within which to serve a Statement of Claim, it cannot justify taking no action at all and, even if unintentionally, leaving a material irregularity both uncorrected and unknown to the court”.

The judge noted that, at the time of the default judgment, Hill was not legally represented, and that it was only after she hired legal counsel that the irregularity was made known to the court. If the court had known earlier, McMillan said, it would have informed Hill of the significance of the late serving of the statement of claim.

“Finally, in this regard, the Court notes that if the Defendant’s recently appointed attorneys had not made enquiry of the Plaintiff’s attorney, a full account of these events might never have become known,” the judge wrote.

McMillan stated that Priestleys attorneys, in an emailed response to a draft of the judge’s ruling, had said that the assurances regarding the date of service of the statement of claims “were made entirely in good faith, and with an honest, albeit mistaken, belief that these assertions were true”.

Editor’s note: The last paragraph of an earlier version of this story mistakenly stated that Broadhurst, rather than Priestleys, had emailed a response to the judge’s ruling. That has now been corrected.