Brian Been v The Turks and Caicos Islands Tourist Board (CL 98 of 21) [2023] TCASC 51 (21 February 2023)

Flynote

Civil Procedure

Case summary

The default judgment is set aside.  An application to set aside default judgment should be made promptly and in a reasonable time. It must be supported by an affidavit setting out the merits of the proposed defence and the excuse relied on for allowing the judgment to be entered [8]. For the application to be successful it must be shown that the defendant has a meritorious defence. The relief is discretionary and unconditional, the purpose being to avoid injustice [9]. There has been unconscionable delay by the Defendant in dealing with this matter and the reasons for both the default judgment being entered and then the subsequent delay in making the application to have it set aside are not strong. The question for the Court is whether, notwithstanding the delay, would setting aside the default judgment and allowing the action to be defended amount to an injustice [14]. The major consideration in this type of application is whether there is a defence on the merits which transcends any reason given by the Defendant for delay [28]. It is not possible to discern who is likely to win at trial, but it cannot be said that the defence has no prospect of success, (not that that is the test), but on the contrary, there is a question to be determined and in order to determine that question the Court needs to view evidence, which is not presently before the Court [31]. J H Rayner (Mincing Lane) Ltd and others -v- Cafénorte SA Importadora and others [1999] 2 All ER (Comm) 577; Oilike Ltd -v- Reid [1986] CA Transcript 777; Allen -v- Taylor [1992] Lexis citation 2681;  Vann and anor.  -v Awford and anor (1986) Times, 23 April, [1986] Lexis Citation 1365, considered.

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