Part 12 of the Civil Procedure Rules (“CPR”) outlines default judgment and the circumstances under which a party can obtain judgment against another, without trial.

If default judgment is entered under Part 12, the party subject to that judgment can make an application to court to have the same set aside or varied under CPR 13.3(1), in the event that:

  1. the defendant has a real prospect of successfully defending the claim; or
  2. it appears to the court that there is some other good reason why:

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

CPR 13.3(2) confirms that the court, in considering whether to set aside or vary a judgment entered under Part 12, must have regard to whether the person seeking to do so made their application promptly and case law over the years has tried to clarify what this means in practice.

In the case of Regency Rolls Ltd. v Murat Carnall [2000] EWCA (Civ) 379, it was held that 30 days was too long a delay for the purposes of acting ‘promptly’ and the application to set aside was dismissed.

Whereas the case of Barons Bridging Finance Plc v Nnadiekwe [2012] EWHC 2817 (Comm) saw the court set aside a judgment entered several years earlier, due to severe conflicts of evidence between the parties, including the defendant alleging that she was the victim of fraud. The court decided that the facts, in this case, permitted the application. More recently, LJ Popplewell confirmed in the case of Avanesov v Shymkentpivo [2015] EWHC 394 (Comm) that the question of promptness requires the application to be made ‘as soon as could reasonably be expected’, with 8 months deemed too lengthy in this case.

The very recent decision of Points of View v Erre DB Group SA [2021] 2 WLUK 70 held that 26 days was too long to make the necessary application to set aside, on the basis that, despite the court accepting that the defendant had established its defence had a real prospect of success, there was no excuse for its failure to follow the procedural rules. Accordingly, the court held that the application to set aside had not been made ‘promptly’ enough for the purposes of CPR 13.3(2) and was therefore too late.

Whilst the decisions in Regency Rolls Ltd. v Murat Carnall [2000] EWCA (Civ) 379 and Points of View v Erre DB Group SA [2021] 2 WLUK 70 may be viewed as harsh, particularly in a case where a defence had a real prospect of success, case law emphasises that time is of the essence. It is clear that best practice for the party making the application under CPR Part 13, is to do so as soon as possible after receiving default judgment.

If you have a matter that you would like to discuss with our specialist Commercial Litigation Solicitors and you would like advice as to the best way forward, please contact our London office by phone on 020 7421 9421, email sols@gordonsols.co.uk or make an online enquire here and we will be happy to speak with you.

About the Author

 

Amy Archer

Solicitor

Tel: 01483 451900

Email: amy@gordonsols.co.uk

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