The Defendant applied to set aside a Noting in Default. The Defendant was served with a Statement of Claim alleging defamation on September 11, 2018. Prior to the expiry of the time to file the Statement of Defence, Plaintiffs’ counsel wrote to the Defendant advising her of the consequences of failing to file a Statement of Defence within the timelines prescribed in the Rules, and extended the time for the Defendant to file a Statement of Defence until October 5, 2018, despite not being asked to do so. The Defendant nonetheless failed to file a Statement of Defence, and did not retain counsel until sometime after October 16, 2018. The Defendant testified that she was aware that she was being sued civilly for damages for defamation and had 20 days to file a Statement of Defence, and that she had taken certain steps to obtain information or access the funds to be able to retain a lawyer, though did not attend any consultations or meetings with Legal Aid. The Defendant retained counsel and brought the Application to set aside the Noting in Default within one month of being noted in default.

Justice Mah noted that the test for setting aside a Noting in Default under Rule 9.15 is ultimately rooted in fairness guided by three factors: 1) whether the default is explainable; 2) whether the set-aside Application is made in a timely manner; and 3) whether there is a meritorious defence in the sense of a triable issue of fact or law.

Justice Mah found that the default was not explainable as the Defendant clearly understood that she was being sued civilly for damages for defamation and had to respond within a prescribed time yet failed to do so. Justice Mah also noted that there was no material change in circumstances for the Defendant before and after she retained counsel which would explain or excuse why counsel was not retained earlier.

Justice Mah found that the Application to set aside the Noting in Default was brought in a timely manner, being within one month of having been noted in default.

Justice Mah further found that the Defendant had failed to demonstrate an arguable defence on the merits of the claim. The claim against the Defendant was based on the Defendant having filmed and posted a video of an individual making defamatory comments about the Plaintiffs and publishing that via her Facebook page. The Defendant argued that the statements were true and therefore not defamatory. Justice Mah noted that the only evidence put forward by the Defendant to support this defence were the original statements made in the video along with the Defendant’s sworn statement that she believed them to be true. Justice Mah noted that in a defamation claim, the onus is on the Defendant to prove on a balance of probabilities the truth or falsity of a statement, and that subjective belief – no matter how sincere – is not sufficient. Accordingly, Justice Mah held that there was no arguable defence to the merits of the claim.

With no explanation for the default, and no arguable defence to the merits of the claim, Justice Mah dismissed the Defendant’s Application to set aside the Noting in Default.