DENTON PRINCIPLES APPLY TO APPLICATIONS TO SET ASIDE DEFAULT JUDGMENTS: COURT OF APPEAL DECISION TODAY
In FXF v English Karate Federation Ltd & Anor [2023] EWCA Civ 891 the Court of Appeal stated, categorically, that the Denton principles must be considered where a defendant applies to set aside a default judgment. Firstly there was binding…
DELAY IN APPLYING TO SET ASIDE A DEFAULT JUDGMENT: FAILURE TO BE PROMPT IS A HIGHLY RELEVANT FACTOR
In AMRA Leasing Ltd v DAC Aviation (EA) Ltd & Ors [2022] EWHC 1718 (Comm) Mr Justice Jacobs refused the defendants’ application to set aside a default judgment. The defendants’ delay in making the application, and then a further delay…
DEFENDANT UNSUCCESSFUL IN SETTING ASIDE DEFAULT JUDGMENT: NO REASONABLE PROSPECT OF SUCCESS: DELAY WOULD HAVE LED TO APPLICATION BEING REFUSED IN ANY EVENT
In Al Nasser & Al Masri Trading Company WLL Ltd Co v Munir [2022] EWHC 1174 (QB) Master Sullivan refused an application to set aside a default judgment. This case shows the importance of having detailed evidence available if a…
DENTON PRINCIPLES DO NOT APPLY TO AN APPLICATION TO SET ASIDE A DEFAULT JUDGMENT: NO UNIVERSAL JUDICIAL VIEW HERE
There is a brief report on Lawtel of the case of C-v- D [2022] WLUK 99 where Dexter Dias QC, sitting as a Deputy High Court judge, did not agree with the proposition that Denton principles applied to an application…
COURT REFUSED TO SET ASIDE A DEFAULT JUDGMENT ON COSTS: DENTON PRINCIPLES ARE VERY MUCH INVOLVED IN SUCH AN APPLICATION
In Ince Gordon Dadds LLP v Mellitah Oil & Gas BV [2022] EWHC 997 (Ch) Mr Hugh Sims QC, sitting as a Deputy High Court Judge, refused the defendant’s application to set aside a default judgment obtained for solicitor’s costs. …
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: “MAINTAINING THE LIE ALL THE WAY TO THE COURT OF APPEAL”
The Court of Appeal judgment in Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2021] EWCA Civ 1766 contains an important discussion of the circumstances in which it is possible to bring a second action to set aside…
INSURER’S APPLICATION TO SET ASIDE DEFAULT JUDGMENT REFUSED ON THE BASIS OF INEXCUSABLE DELAY
In Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB) Master Thornett refused an insurer’s application to set aside judgment on the grounds that the application was not made “promptly”. THE CASE The claimant brought…
WHEN AT COURT MAKE SURE YOU CAN ALWAYS BE FOUND: PROMPTNESS, SETTING ASIDE AND CPR 39.3(5)
In Altaf & Ors v Close Brothers Ltd [2021] EWHC 2823 (QB) Mr Justice Fordham considered an application made by a defendant who left the court before the trial started. It highlights the importance of every litigant, once they arrive…
APPLYING TO HAVE JUDGMENT SET ASIDE: BE QUICK TO BE SAFE: DELAY IN MAKING APPLICATION MEANT IT WAS “RIGHT ON THE LINE”
In Mountain Ash Portfolio Ltd v Vasilyev [2021] EWHC 1853 (Comm) Stephen Houseman QC, sitting as a Deputy High Court Judge, set aside a default judgment. However this was done by the narrowest of margins, the delay in making the…
APPLYING TO SET ASIDE DEFAULT JUDGMENT: A DRAFT DEFENCE IS NOT MANDATORY, BUT ITS ABSENCE MAY WELL BE TELLING
In Alli-Balogun v On the Beach Ltd & Ors [2021] EWHC 1702 (QB) Mr Justice Jacobs considered the relevant criteria for a party seeking to set aside a default judgment on the merits. The defendant in this case did not…
RETROSPECTIVE VALIDATION OF SERVICE, THE ACKNOWLEDGEMENT OF SERVICE AND THE SETTING ASIDE OF DEFAULT JUDGMENT
In YA II PN Ltd v Frontera Resources Corporation [2021] EWHC 1380 (Comm) Mr Justice Butcher considered the question of whether a default judgment was regular when the court had, retrospectively, validated service of the claim form. He found that…
DEFAULT JUDGMENT FOR SOLICITORS’ COSTS: COURT REFUSES TO SET ASIDE JUDGMENT: DEFENDANT FAILS ON BOTH THE DENTON CRITERIA AND THE MERITS
In Carpmaels & Ransford Llp & Anor v Regen Lab SA [2021] EWHC 845 (Comm) Mr Justice Waksman refused the defendant’s application to have judgment in default set aside. The claimants were solicitors bringing proceedings for their costs. The judge…
SETTING ASIDE A DEFAULT JUDGMENT: DELAY, FAILING TO KNOW THE CORRECT PROCEDURE AND ABSENCE OF MERITS: LORD CHANCELLOR WINS THE DAY…
The judgment of Master Thornett in The Lord Chancellor (as Successor to the Legal Services Comission) v Halberstadt-Twum (t/a Cleveland Solicitors) & Anor [2021] EWHC 413 contains some object lessons for anyone involved in an application to set aside default…
THE RULES OF LITIGATION ARE DETAILED AND IMPORTANT: COURT REFUSES APPEAL – DEFENDANT’S ATTEMPT TO RE-LITIGATE HEARING WAS AN ABUSE OF PROCESS
The judgment of Collins Rice J in Vafa v Patel [2021] EWHC 198 (QB) shows the importance of knowing and complying with the rules. The judge dismissed an appeal where it had been held that a defendant’s attempt to re-litigate…
SERVICE OF DEFENCE BY EMAIL NOT GOOD SERVICE: RELIEF FROM SANCTIONS REQUIRED TO SET ASIDE JUDGMENT (AND GRANTED)
The judgment of Mr Justice Calver in Ipsum Capital Ltd v Lyall & Ors [2020] EWHC 3508 (Comm) shows the dangers of serving documents by email. The judge held that service of a defence by email was not good service…
ACKNOWLEDGMENT OF SERVICE FILED LATE – BUT JUDGMENT IN DEFAULT WAS IRREGULAR AND SET ASIDE: A REMINDER THAT THE RULES HAVE CHANGED
The judgment of Mr Justice Choudhury in MB v RBG [2020] EWHC 3022 (QB) is the first I have seen considering the new provisions of CPR 12.3 and the circumstances in which a default judgment can be set aside. It…
PROVING THINGS 184: PROVING YOU CAN’T A CLAIM WILL BE “STIFLED” REQUIRES A DETAILED EXPLANATION
In National Tourism Council of Qatar v Mehdiyev [2020] EWHC 2638 (Ch) Deputy Master Hansen considered the defendant’s evidence as to means when deciding whether or not to impose terms when setting aside a judgment. It is important to note…
SETTING ASIDE A REGULAR JUDGMENT: TWO HURDLES FOR THE APPLICANT TO CLEAR – AND EVEN THEN THERE CAN BE CONDITIONS
The judgment of Master Kaye in Penta Ultimate Holdings Ltd & Anor v Storrier [2020] EWHC 2400 (Ch) is a reminder that a party attempting to set aside a regular judgment has two hurdles to clear: the test set out…
JUDGMENT SET ASIDE WHEN DEFAULT WAS OBTAINED BECAUSE OF “LOCKDOWN”: LITIGATORS MUST BE AWARE THAT THE WORLD SHIFTED ON ITS AXIS ON 23 MARCH 2020
The judgment of Mr Justice Julian Knowles in Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB) is the first reference I have seen to that part of CPR PD51ZA that deals the court’s general discretion when faced…
SETTING ASIDE DEFAULT JUDGMENT: THE NEED FOR PROMPTNESS AND THE RELEVANCE OF THE DENTON CRITERIA
In Core-Export Spa -v- Yang Ming Marine Transportation Corp [2020] EWHC 425 (Comm) HHJ Pelling QC (sitting as a High Court Judge) refused an application to set aside a default judgment. The defendant had an arguable defence, however its history…
JUDGMENT IN DEFAULT – AFTER DEFENCE IS DUE BUT WHEN DEFENCE IS FILED LATE: ISSUE TO BE DETERMINED BY THE COURT OF APPEAL
An earlier post dealt with rule changes that come into force in April in relation to default judgment being entered. The new rules make it clear that judgment cannot be entered if the court has received an acknowledgement of service…
SETTING ASIDE JUDGMENT IN DEFAULT: DEFENDANT’S SOLICITOR FAILED TO NOTICE THAT PARTICULARS OF CLAIM HAD BEEN SERVED WITH THE CLAIM FORM
The judgment of HH Judge Hodge QC (sitting as a HIgh Court Judge) in Praetura Asset Finance Ltd v Hood [2019] EWHC 2231 (Comm) shows how important it is to check what has been served. The one, overwhelming, lesson for…
CAN YOU ENTER JUDGMENT IN DEFAULT WHEN THE DEFENCE IS SERVED LATE? HIGH COURT DECISION THAT SAYS NOT
In Clements Smith v Berrymans Lace Mawer Service Co. & Anor [2019] EWHC 1904 (QB) Master McCloud considered the issue of whether a judgment entered after a defence had been filed late was a regular judgment. Permission was given to…
DEFAULT JUDGMENT SET ASIDE, RELIEF FROM SANCTIONS GRANTED: ACTION THEN STRUCK OUT: REMEMBERING THE BASIC OBLIGATION TO FILE A DEFENCE – ON TIME
In Workman v Deansgate 123 LLP [2019] EWHC 360 (QB) Mr Justice William Davis allowed an application to set aside a default judgment and relief from sanctions. The most surprising procedural aspect of this case is the defendant’s failure to file…
CLAIMANT CANNOT ENTER JUDGMENT AFTER ACKNOWLEDGEMENT OF SERVICE IS FILED LATE: DENTON PRINCIPLES APPLIED TO GRANT DEFENDANT EXTENSION OF TIME TO DISPUTE THE JURISDICTION
The judgment in Cunico Resources NV & Ors v Daskalakis & Anor [2018] EWHC 3382 (Comm) addresses several procedural issues. Firstly the much debated question of whether a claimant can obtain judgment when the defendant has acknowledged service late. Mr Justice…
101st CPR UPDATE: WELCOME TO THE VIDEO LINK WORLD
The 101st update to the Civil Procedure Rules apply from 8th and 30th November 2018. The main development is a procedure whereby applications to set aside default judgment may be heard by video link. SETTING ASIDE DEFAULT JUDGMENTS: HEARD BY…
AN APPLICATION TO SET ASIDE A WITHOUT NOTICE ORDER IS NOT SUBJECT TO “TIBBLES” CRITERIA: SOMETIMES DENTON DOES NOT APPLY – OR SHOULD NOT BE APPLIED
There is a short passage in the judgment of Mr Justice Pepperall in Berhad v Frazer-Nash Research Ltd & Anor [2018] EWHC 2970 (QB) in relation to late service of evidence before an interlocutory hearing. The judge held that the Denton…
A HARSH REMINDER: IF YOU DON’T TURN UP FOR TRIAL THEN THE TEST FOR SETTING JUDGMENT ASIDE IS VERY TOUGH: BE PROMPT, BE VERY PROMPT
In Lomax & Ors v Greenslade [2018] EWHC 2623 (Ch) Mr Justice Henry Carr refused to set aside a judgment obtained after the defendant failed to attend trial. There was a major mistake on the part of the court, however the…
SERVICE OF THE CLAIM FORM: DEFENDANT’S LAST KNOWN ADDRESS: CLAIMANT’S “REASON TO BELIEVE”: A FEW POINTS TO WATCH
In Wards Solicitors v Hendawi [2018] EWHC 1907 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) considered the issue of whether a claimant had “reason to believe” that a defendant did not live at the address…
SETTING JUDGMENT ASIDE: LIMITATION, SECTION 33 AND DENTON: CARDS ON THE TABLE PLEASE – THIS IS THE CPR
In TPE v Franks [2018] EWHC 1765 (QB) Mr Justice Julian Knowles set aside a default judgment. The case contains some important observations as to how the courts should consider an application to set aside a default judgment – considering…
APPLICATIONS TO SET ASIDE SUMMARY JUDGMENT ORDERS: A WORLD OF THEIR OWN: NOT QUITE CPR 39.(3) – BUT VERY CLOSE
A party seeking to set aside an order for summary judgment has to deal with principles that are almost unique. This was emphasised in the judgment of Miss Penelpe Reed QC in Phonographic Performance Ltd v Balgun (t/a Mama Africa) [2018]…
SETTING ASIDE A DEFAULT JUDGMENT IN RELATION TO SOLICITORS’ COSTS: INTEREST SET ASIDE, PRINCIPAL SUM REMAINS A DEBT
In RS v LS & LMP [2018] EWHC 449 (Fam) Mrs Justice Roberts considered an application to set aside a default judgment obtained in relation to a solicitor’s costs. There are issues in relation to a failure to serve the response…
JUDGE WAS WRONG NOT TO GRANT ADJOURNMENT ON THE GROUNDS OF ILL HEALTH AND TO REFUSE TO SET ASIDE SUBSEQUENT JUDGMENT
In Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101 today the Court of Appeal overturned a decision discussed on this blog in 2015. The Court found that a judge should have granted a defendant an adjournment on ill-health grounds. He…
COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD
The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts. It was the only time the claimants were successful. It involved an important procedural…
SETTING JUDGMENT ASIDE AFTER REDBOURN: 10 KEY POINTS FOR DEFENDANTS (CLAIMANTS MUST READ TOO)
The judgment in Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) highlights the fact that there is a new age for a party seeking to set judgment aside. Not only does the party have to satisfy the requirements of…
SETTING ASIDE JUDGMENT, DELAY AND DENTON: “PROMPTNESS” CONSIDERED: DELAY MUST BE EXPLAINED
In Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) Mr Justice Coulson refused to set aside a default judgment. The case contains some important discussion on how the Denton principles apply to applications to set aside judgment. “……
KNOW (AND FOLLOW) THE RULES – OR ELSE: DPP COPS IT.
There is some irony in the decision of Mr Justice Fraser in R (RA) -v- The Director of Public Prosecutions [2017] EWHC 714 (Admin). The claimant, a litigant in person, complied with the rules. The defendant, a specialised government department…
DELAY AND SETTING ASIDE DEFAULT JUDGMENT: BALD ASSERTIONS IN AN EXPERT'S REPORT
The result in Gahir -v- Bansal [2016] EWHC 2041 (QB) (Sir David Eady) is perhaps surprising given the strength of the judge’s observations as to the defendant’s conduct. Despite major unjustified delay an application to set aside a default judgment…
DEFAULT JUDGMENT ON COUNTERCLAIM NOT SET ASIDE – AN OBJECT LESSON IN STAYING AWAKE IN LITIGATION
The decision of Master Matthews today in Goldcrest Distribution Ltd -v- McCole [2016] EWHC 1571 (Ch) provides an object lesson in the need to stay awake to procedural issues throughout litigation. The claimant had a default judgment on a counterclaim…
SERVICE OF PROCEEDINGS AND MISSING DOCUMENTS: WHY IT IS DANGEROUS FOR A DEFENDANT TO ATTEMPT TO STAND ON ITS RIGHTS
When proceedings are served and key documents are missing it is tempting for a defendant to attempt to stand on its rights and not reply at all to the claim. However the case of Rushworth -v- Harvey [2016] EWHC 1386…
COURT OF APPEAL OVERTURNS REFUSAL TO SET ASIDE JUDGMENT AFTER DEFENDANT FAILED TO ATTEND TRIAL
Given the many strictures relating to the sanctity of the trial date the decision of the Court of Appeal in TBO Investments Ltd -v- Mohun-Smith [2016] EWCA Civ 403 may be viewed as a surprising one. The defendant failed to…
DELAY, DISCRETION AND SETTING ASIDE JUDGMENT
In the judgment today in Albesher -v- Ryan [2016] EWHC 541 (Comm) Mr Justice Walker considered issues of delay in an application to set aside a default judgment. KEY POINTS A regular judgment was set aside because there was…
DENTON CRITERIA OVERRIDES ALLEGATIONS OF FRAUD: COURT OF APPEAL DECISION: A WAKE UP CALL FOR THE INSURANCE INDUSTRY?
In Gentry -v- Miller and UK Insurance Company [2016] EWCA Civ 141 the Court of Appeal held that the fact that a defendant was alleging fraud did not entitle it to any special treatment in relation to breaches of rules….
VARYING JUDGMENT ENTERED BY CONSENT: CAUSATION, APPEALS AND "NEW" EVIDENCE
In Atkins -v- The Co-operative Group [2016] EWHC 80 (QB) Mr Justice Supperstone varied a consent order giving judgment for the claimant on liability. The appeal against the order was not made until six months after the judgment was entered….
THE DATE OF KNOWLEDGE UNDER SECTION 14A OF THE LIMITATION ACT: DELAY WHEN APPLYING TO SET JUDGMENT ASIDE
In Blakemores LDP -v- Scott [2015] EWCA Civ 999 the Court of Appeal considered issues relating to date of knowledge for the purpose of s.14A of the Limitation Act 1980 . The court also considered the impact of delay when…
APPLICATION TO SET ASIDE JUDGMENT MADE LATE IN THE DAY: APPEAL AGAINST REFUSAL TO SET JUDGMENT ASIDE ALLOWED
In Priestley -v- Dunbar [2015] EWHC 987 (Ch) H.H.Judge Behrens (sitting as a judge of the High Court) overturned an earlier decision refusing to set judgment aside on the grounds of delay. THE CASE The claimant had obtained default judgment…
SETTING ASIDE JUDGMENT. DELAY AND THE DENTON CRITERIA: ANOTHER IMPORTANT CASE
In Avanesov -v- Shymkentpivo [2015] EWHC 394 (Comm) Mr Justice Popplewell considered the issue of setting aside judgment after a long period of delay by the defendant and the relevance of the Denton criteria. THE CASE The defendant applied to…
SETTING ASIDE A DEFAULT JUDGMENT AFTER AN ORDER IS STILL SUBJECT TO CPR 13: JUDGMENT SET ASIDE WHEN NO GOOD REASON FOR DEFENDANT'S DELAY
In QRS -v- Beach & Kordowski [2014] EWHC 2189 (QB) Mr Justice Warby considered the relevant criteria for setting aside a default judgment when the court makes an order/declaration? There is a detailed discussion of the relevant law and the appropriate…
WHEN APPLYING FOR RELIEF FROM SANCTIONS MAKE SURE THAT YOU APPLY FOR ALL OTHER RELEVANT FORMS OF RELIEF AS WELL
It is easy to overlook one aspect of the decision in British Gas Trading -v- Oak Cash & Carry [2014] EWHC 4058 (QB). In that case the judge overturned a decision granting relief from sanctions. However she also indicated that…
APPLICATIONS TO SET ASIDE DEFAULT JUDGMENT & THE MITCHELL/DENTON PRINCIPLES: ANOTHER HIGH COURT CASE
There are now several cases that deal with how the “Mitchell/Denton” principles effect applications to have judgment set aside. In Robinson -v- Kensington & Chelsea Royal London Borough (Sir Michael Tugendhat 03/011.204 QB)* a default judgment was set aside on…
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