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Not an entirely satisfactory judgment: there is no mention of Coll v Tattum and a lack of clarity about the default judgment. The AOS seems to have been filed before the default judgment was entered. D should have lodged the AOS and (with it) an application for a retrospective extension of time for doing so.
The judgment talks about permission to enter default judgment. Why would C need any permission to enter default judgment in a case of this kind? It would be a request for judgment, not an application for judgment under Part 23.
It was surely a major tactical error by D not to produce a draft Defence, even though the DJ had (ludicrously) given it a six-month extension of time for doing so.
Wow – where to begin. To state that the completely different wording and structure of CPR 3.9 and CPR 13.3 amounts to no more than ‘semantic’ differences is atsonishing. The 3-stage test in Mitchell was bad enough on 3.9 and just doesn’t fit into CPR 13.3. Granted, judges might want to take a more hardline stance post April 2013 and the new overriding objective (nothing to do with Mitchell/Denton) but the rules specify that the judge hearing the application only needs to find ‘some good reason’ why the judgment shoudl be set aside or varied, or why the defendant should be allowed to defend the claim – only ONE reason is needed and as once one such reason is identified (such as C’s failure to follow the protocol) the court moves on to consider all the circumstances in its exercise of its discretion. There seems to have been a conflation of the ‘good reason for breach’ test in Mitchell/Denton and the ‘good reasosn for setting aside’ in CPR 13.3 – wholly different concepts.
The Defendant in this case seems to have been penalised for ‘acquiescing’ in the claimant’s failure to follow the protocol – i.e. for cooperating. Given that there can only be two possible breaches causing judgment to be entered – failure to file AOS or to file a defence – the ‘triviality’ analysis is particulary unhelpful and inappropriate. Worst of all, having set out the correct tests from Denton, the judge then went on to say (paragraphs 61, 62) that relief would only be granted if there was a good reason for the breach – the opposite of the conclusion of the Court in Denton!