The Writ of Summons and Statement of Claim in this case was filed by the Plaintiffs on 24.5.2000. According to the affidavit of service (Encl. 22) the said Writ of Summons and Statement of Claim had been served on the 1st, 3rd and 5th Defendants by way of A.R Registered Post on 21.7.2000. The Memorandum of Non Appearance of the 1st, 3rd and 5th Defendants were filed on 28.3.2001 (Encl. 27). Since then, no further action was taken against all the 3 Defendants.

On 5.7.2004, the Plaintiffs obtained leave to amend their Writ of Summons and Statement of Claim. On 21.12.2004, the Plaintiffs filed Notice of Intention to Proceed with the proceeding against 1st, 3rd and 5th Defendants.

On 5.5.2005, the Plaintiffs filed a Summons in Chambers (Encl. 101) for leave to enter judgment in default against the 1st, 3rd and 5th Defendants. Only then on 6.6.2005, the 5th Defendant filed a Memorandum of Appearance (Encl. 103). In the meantime, Encl. 101 was fixed for hearing on 9.6.2005 before the learned Senior Assistant Registrar (SAR).

On 11.7.2005, the 5th Defendant filed on application for leave to file his Statement of Defence out of time (Encl. 105). This application was then fixed for hearing on 18.8.2005.

On 18.8.2005, the 5th Defendant was informed by the Court that on 9.6.2005, judgment in default, vide Encl. 101, had been entered against him.

On 25.8.2005, the 5th Defendant filed an application to set aside the said judgment in default (Encl. 112) given on 9.6.2005.

The grounds are:-

(i) the 5th Defendant had never been served with the Amended Writ and Statement of Claim.

(ii) the 5th Defendant had no knowledge about the original Writ of Summons and Statement of Claim and avers that he had never signed the A.R Card since for the last 10 years he had been in and out of the country on business trips.

(iii) the 5th Defendant never received Notice of Intention to Proceed.

(iv) the Summons in Chambers (Encl. 101) for leave to enter judgment in default was not served on 5th Defendant. Thus, it contravened O. 13 r. 6(3) which requires that the said application shall be served on the Defendant against whom the judgment sought to be entered.

The application by the 5th Defendant to set aside the judgment in default (Encl. 112) was heard by the learned S.A.R on 23.2.2007. However, the application was dismissed with costs. As against this decision the 5th Defendant is now appealing to the judge in chambers.

It is the 5th Defendant's submissions that there are 2 main issues. The first is whether the said judgment in default is a regular judgment. The other issue is, if it is so then whether there are merits in the 5th Defendant's proposed Statement of Defence.

The 5th Defendant contended that the sealed copy of the Writ of Summons and the Amended Statement of Claim pursuant to the order of Court dated 5.7.2004 was never served on the 5th Defendant and/or his solicitor. There was no affidavit of service of the same. What was served upon them were photostate copies of the same which was delivered to the 5th Defendant's solicitor upon the request of the 5th Defendant's solicitor. At the same time the Plaintiffs did not seek the court's direction as to whether these documents are to be served upon the 5th Defendant or otherwise. The Plaintiffs' conduct obviously is in contravention of O. 20 r. 1(2) of the Rules of the High Court (RHC) 1980.

The 5th Defendant also contended that their application for leave to enter judgment in default against the 5th Defendant (encl. 101) was also not served upon the 5th Defendant. This again runs foal with O. 13 r. 6(3) of the same Rules.

Upon these grounds alone, it was submitted that the said judgment in default should be set aside ex debito justitae.

However, I am with the Plaintiffs' submissions that there is no requirement under the law for a sealed copy of the Amended Writ and Statement of Claim to be served. A sealed copy of the same is only to be served to the other party if so requested by the other