Court quashes bid to set aside ‘Trinity’ defamation default judgment

The Court of Appeal has refused to set aside a default judgment entered against Dr Christopher Ogunsalu, lecturer of The University of the West Indies (UWI) who has been sued by Keith Gardner, director of campus security, for defamation.

Gardner, a retired assistant commissioner of police widely known as ‘Trinity’, obtained a default judgment against Ogunsalu in October 2018 because he did not file a defence within the specified time.

On May 24, 2018, Gardner filed a defamation claim in the Supreme Court contending that an email Ogunsalu sent to him and copied to senior employees of the university contained defamatory statements that injured his reputation.

An acknowledgement of service was filed, but Ogunsalu did not file a defence to the claim.

The hearing for the default judgment was held on October 26, 2018, in the absence of Ogunsalu. Gardner was successful in his application, and it was stipulated that damages were to be assessed later.

Ogunsalu became aware of the default judgment on October 30, 2018, and applied, on January 22, 2019, to have it set aside. He said he misunderstood his attorneys’ instructions that he had to formalise their retainer before the defence could be filed on his behalf and was of the mistaken belief that one would have been filed.

The application was refused by Supreme Court Justice Tricia Hutchinson in January 2020. Ogunsalu appealed.

The law firm Paris & Co, in the written submissions filed on behalf of Ogunsalu, outlined that his explanation for failing to file his defence within time had merit.

Attorneys-at-law Hugh Wildman and Indira Patmore, who are representing Gardner, stated in their written submissions that Ogunsalu’s explanation proferred was without merit. They said the appellant only sought to blame his attorneys and had advanced a reason that was unmeritorious and contradictory. They said that it was contradictory because having failed to formalise a retainer and give instructions for the defence, “how could he assert that he thought enough was done for a defence to be prepared on his behalf?”

The Court of Appeal, in handing down judgment two Fridays ago, said the analysis and finding of Justice Hutchinson that Ogunsalu failed to supply a good explanation for not filing his defence within time could not be faulted.

The court pointed out that the explanation outlined by Ogunsalu did not provide a good reason for his failure to comply with the rules.

“This is not a case where Ogunsalu is claiming incompetence of counsel. It is difficult to accept that a man of Dr Ogunsalu’s education and stature misunderstood the instructions of his attorneys-at-law that he should formalise their retainer and instruct them before a defence would have been filed on his behalf,” the court said.

The court found that Ogunsalu failed to demonstrate that the words complained of amounted to vulgar abuse.

“Accordingly, he was unsuccessful in his quest to convince this court that he has a defence with a real prospect of success,” the court ruled.

Barbara Gayle