ABSTRACT
A defendant who wishes to apply to set aside a default judgment should act reasonably promptly and, if there is a delay in making the application, he should explain in his affidavit of merit the reasons for such delay. If it appears that there was an inexcusable or inordinate delay, the court may in its discretion reject the application, although, in Simpson v Ghany (No 2), Wooding CJ, in the Trinidad & Tobago Court of Appeal, stated that ‘the court, while considering delay, has been lenient in excluding applications on that ground ... Here, there was a first application, then an appeal, then another application which was not heard forthwith but was adjourned. All the reasons added up to the time that was taken before the summons was in fact heard’.49 That the decision as to whether or not a default judgment should be set aside is very much in the discretion of the court is illustrated by another Trinidadian case, Mykoo v Water and Sewage Authority,50 where there was a claim for damages by the plaintiff who alleged that he had sustained injuries in falling into a hole carelessly left by the defendant authority. Judgment in default of defence was entered against the defendant. Daly J was satisfied that the defendant was not guilty of inexcusable or inordinate delay in applying to set aside the judgment, but he nevertheless rejected the application, because (a) the defendant had been given an extension of time by the plaintiff’s solicitor and had ‘no excuse’ for not delivering its defence within the extended time or by the time the judgment was taken up; (b) the plaintiff’s solicitor had warned the defendant’s solicitor that he was allowing him ‘only seven days more’, but the warning was ignored; and (c) the defendant had the benefit of the Public Authorities Protection Ordinance, and had to accept in return the burden of dealing with the public as expeditiously as the public was required to deal with the authority. Finally, Daly J pointed out that in this case there was a single allegation of negligence raising a comparatively small claim for personal injuries. If the issues had been complicated or the damages potentially large, that would have been a substantial matter which might have counterbalanced what Daly J described as the defendant’s ‘nonchalant’ approach to the proceedings.
