CASE NO. VOL. NO. PAGE
JOHN RILEY -
and - TONIA TEMPLE
(Appellant) (Respondent)
CA164600 Halifax, N.S. SAUNDERS, J.A.
[Cite
as: Temple v. Riley, 2001 NSCA 36]
APPEAL HEARD: January 10, 2001
JUDGMENT DELIVERED: February 14, 2001
SUBJECT: Damages. Default Judgment. Civil Procedure
Rules 3, 12, 30 and 33. Alleged sharp practice and breach of professional
ethics by a barrister. Error in law. Result amounting to an injustice between
the parties.
SUMMARY: Appellant and respondent, both insured, involved
in a motor vehicle accident. Notwithstanding acknowledgment by insurer for the
respondent that she was liable, respondent went ahead and retained her own
counsel to sue. Appellant’s insurer denied liability throughout and instructed
respondent’s counsel to serve appellant personally. Through inadvertence,
appellant’s insurer failed to engage legal counsel. Default judgment entered on
eleventh day. Never notified appellant or his insurer of default. Appellant
sought to set aside default judgment and damages award immediately, upon first
learning that orders existed. Chambers judge dismissed application. Appellant
Riley appealed.
HELD: Appeal allowed on the basis of both errors in law and patent
injustice between the parties. Criticized respondent counsel’s conduct in his
dealings with appellant and appellant’s insurer. However, declined invitation
to find counsel in violation of Legal Ethics and Professional Conduct: A
Handbook for Lawyers in Nova Scotia. Such matters better left to
Barristers’ Society to determine what action, if any, required. In these
unusual circumstances, special directions given on costs.
This
information sheet does not form part of the court’s judgment. Quotes must be
from the judgment, not this cover sheet. The full court judgment consists of
21 pages.
|