HIS HONOUR: And you would have to persuade the Court that the absence was beyond your control or that there are good reasons why the orders should be set aside but I will say no more than that.
14 The complaint alleging the difficulties which Mr Levy was said to have had was clearly put by Mr Meredith from the Bar table as opposed to having been sworn to in an affidavit or by his ascending the witness box. That matter was not referred to at all by McDougall J in the short judgment which was delivered. As the transcript of the occasion when Mr Meredith was addressing his Honour reveals, in dealing at that later time [after Mr Levy had withdrawn] with the lack of evidence, his Honour concentrated upon the lack of evidence of negotiations with counsel.
15 Whilst his Honour was plainly not persuaded that there was any substance in the application to vacate the hearing date, it is equally clear that Mr Meredith was made aware by the Court of the power to set aside a judgment in certain circumstances, including that a judgment had been given in the absence of a party.
16 In any event the instant application requires to be determined upon the present evidence taking up as it were, that which Mr Meredith must have understood at the time when he was apprised of the court's power to later set aside a judgement.
Delay
17 The respondent has relied upon the amount of time during which the applicant had failed to make the current application. Clearly enough that delay flies in the face of the well-established need for certainty in relation to the making of final orders. However that failure has to be considered in terms of the general merits, if any, shown by the applicant.
Particulars
18 Another matter to be taken into account concerns the fact that by letter dated 27th February 2006 the applicant's solicitor sought particulars of a number of matters including the sale proceeds of the Hotel. No reply having been received to that letter, a follow-up letter was sent on 15 May 2007.
19 Mr Atkins, a partner of the respondent's solicitors, has deposed [in his affidavit made for the purposes of the instant application] that through various oversights the letter requesting particulars was not answered until 7 April 2008, being the very day of the final hearing. He has deposed that upon receipt of the original request for particulars his firm had sought instructions from the instructing officer of the plaintiff and had received instructions to answer the letter after his instructing officer had had an opportunity to review the finals. He has deposed that unfortunately, through apparent oversight, the matter was not taken any further at that time and the letter for particulars was not answered.
20 This was not a matter canvassed before McDougall J but was raised in the instant application. The matter is of some serious concern as it seems to me, even though some of the particulars sought are now said to have been provided in earlier evidence or pleadings.
21 The simple fact is that the particulars should have been provided much earlier. The general complaint of the applicant has been that had the very late answer to the particulars been provided much earlier, the defendant would have had an opportunity to add to its initial requests once it came to appreciate that the answers, whilst perhaps coping with the very words used in the claim for particulars, were ex facie, far too limited for the defendant purposes. Hence the very delay is said to have enured to the forensic disadvantage of the defendant.
Prejudice
22 The respondent has submitted that it has expended time and costs in bankruptcy proceedings founded upon the judgment which will be wasted if the judgment is presently set aside. In answer the applicant has offered to pay the respondent's costs incurred on the day of adjournment on 7April and the costs of the day of hearing the instant application. The matter is one for the Court and is dealt with below.
Decision
23 The circumstances are unusual. The merits of the cross claim have never been adjudicated upon. The degree of prejudice which the respondent contends it has suffered has to be fairly weighed against the general interests of justice in the circumstances.
24 The respondent has submitted that the evidence called by the applicant of an agreement reached with Mr Meredith's employer to pay fees incurred is of little substance. There is however some evidence now before the Court in that regard and it is plainly difficult for the Court to be certain as to the future funding of the litigation by the applicant. This is not an unusual experience and there are procedures to deal with that form of issue.
25 In all the circumstances the principled exercise of the Court's discretion is to set aside the subject judgment on the terms as to costs offered by the applicant.
Reverting to the question of the courts power to set aside the judgment
26 Finally and reverting to the question of whether or not the Court presently has the power to set the judgment aside, the argument as to no power consists of the proposition that it cannot be said that in the instant circumstances, the judgment was entered in the absence of a party: