YET MORE ON SETTING ASIDE DEFAULT JUDGMENT, DELAY & PROMPTNESS

The case of  Page -v- Champion Financial Ltd [2014] EWHC 1778 (QB) was discussed in an earlier post in relation to delays in applying to set judgment aside.  The case of Dalton -v- Cooper  [2014] EWHC 1556 (QB) was decided earlier, by the same judge, and referred to in the Page judgment. Again it considers the question of delay and the need for “promptness” in setting aside a default judgment.

THE FACTS

The action was an asbestosis claim brought by a widow.  Judgement had been entered in default of timely service of the defence. The Master had refused to set aside judgment on the grounds that the defendant had no real prospect of defending the claim and that the application to set aside judgment had not been made promptly.

THE APPEAL

The judge (on the basis of much more substantial submissions on the issue than were before the Master) found that there was a real prospect of the defendant defending the claim.

THE RELEVANCE OF DELAY AND THE FAILURE TO MAKE AN APPLICATION PROMPTLY

The judge found that there had been a lack of promptness on the defendant’s part. However this did not debar it from succeeding on the application to have judgment set aside.

1. I have reached this conclusion having taken into account the Mitchell approach to procedural requirements, but nevertheless regarding myself as being able, consistent with what CPR 13.3(2) itself expressly contemplates, to “have regard” to the promptness of the application to set aside, rather than being obliged to treat the lack of promptness as being necessarily fatal to the application. Similarly and obviously, it cannot be the case that Gough Cooper’s failure to file its Defence on time should mean that, without more and merely by reference to the Mitchell approach, the setting aside application must fail. Were that the position, then, it is difficult to see why CPR 13.3 would be in the terms which it is in. I might add that the approach which I have described seems to me to be consistent with the approach adopted by Burton J in Mid-East Sales Limited v United Engineering and Trading Company (PVT) & another [2014] EWHC 1457 (Comm), a judgment handed down last Friday (9 May 2014), after argument in the present case, and a decision which came to my attention only after I had circulated a draft of this judgment, in fact the day before the handing down of the judgment in final form. In the Mid-East Sales case Burton J set aside a default judgment, in part, on the basis that the relevant defendant had “arguable defences, such as more than to satisfy the first condition in CPR 13.3(1)”, in circumstances where the delay involved was 5½ months. I do not consider that the shorter period of delay which there has been in the present case is of such a scale as to mean that the application should fail, in circumstances where there is a real prospect of Gough Cooper succeeding with its defence. I consider this to be the case whether the delay is to be regarded as having started at “the end of October” (as Master McCloud considered: see her judgment at [9]) or as having started in mid-November 2013 (when the Defence was due) or as having started when the judgment in default was obtained (on 3 December 2013), whilst nevertheless considering that it is the last of these dates which is directly relevant for the purposes of CPR 13.3(2) since clearly Gough Cooper was not in a position to apply to set aside the default judgment until after that judgment had been obtained.

DISCUSSION

This confirms the other decisions on this point that a lack of promptness is a factor for the court to consider when deciding whether to set aside a default judgment. However a lack of promptness (and even a positive decision not to act promptly) does not prevent the court setting a judgment aside if the defendant can show a real prospect of successfully defending the claim.