Supreme Court
Action No. 329 of 1981
3rd May, 1983.
Alcantara, J.

Mr. E. Flowers, for the Plaintiff.
Mr. D. B. Courtenay, for the Defendants.

Civil Practice and Procedure - Application to set aside default judgment on ground of irregularity - Plaintiff failing to deliver Statement of Claim within time period set by the Court - Whether Statement of Claim delivered out of time a nullity - Order XXIII R1 and R8.

J U D G M E N T

This is an application to set aside a judgment in default of defence on the ground of irregularity. One of the irregularities alleged is that:

"No Statement of Claim was delivered within the time specified in the Order of this Honourable Court made the 20th day of July, 1982 as required by Order XXIII Rule 1 of the Supreme Court Rules"

There is an Affidavit in support which states that on a Summons for Directions the Plaintiff was ordered to deliver a Statement of Claim within 21 days. It goes on to say:

"3. No Statement of Claim was delivered at the Defendant's said address for service within the time limited for so doing, namely before the 11th day of August, 1982.

4. On the 4th day of January, 1983 I received what purports to be a copy of a Statement of Claim dated the 4th day of January, 1983 and signed on behalf of the Plaintiff's said attorney.

5. I therefore examined the record of the proceedings in this Action kept at the General Registry and found that no Order of this Honourable Court extending the time limit for delivering the Statement of Claim had been entered therein.

6. I have not been requested to give nor have I given my consent on behalf of the Defendant to an extension of the time for delivering the Statement of Claim."

The relevant part of O. XXIII R. 1 reads as follows: -
"The delivery of statement of claim shall be regulated as follows: -

(c) When delivery of a Statement of Claim is ordered, the same shall be delivered within the time specified in the order, or, if no time is specified, within 21 days from the date of the order, unless in either case the time be extended by the Court."

On a literal reading of the above Order it would appear that it is imperative for a Statement of Claim to be delivered within 21 days otherwise there must be a Court order. This is not so as it is always possible to obtain an extension of time from the opposite party. See Bullen & Leake and Jacob's Precedents of Pleadings 12th Edition at p. 31.

Further, a Statement of Claim served out of time is not a nullity. It cannot be ignored. I refer to the White Book 1967 at p. 280 for the following note 19/1/4:

"There is no failure to serve the Statement of Claim if it is served at any time before the application to dismiss is heard, even though out of time, and after a summons to dismiss hereunder has been issued. When once served, though out of time, a statement of claim cannot be ignored."

What then is the significance of Order XXIII R. 18? It is this, if the Plaintiff does not keep within the time limit he exposes himself to an application to have the Action dismissed in default of pleading under Order XXIII R. 1. It is therefore advisable for him to apply for an extension of time either to the other party or the court.

Not serving a Statement of Claim within the time limit is an irregularity but not a fatal one. It is no ground for setting aside a judgment obtained in default of defence.

I have given my ruling in writing as this has not been the first time I have dealt with this point in Chambers.

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