JUDGMENT IN DEFAULT – AFTER DEFENCE IS DUE BUT WHEN DEFENCE IS FILED LATE: ISSUE TO BE DETERMINED BY THE COURT OF APPEAL

February 5, 2020 · by · in Appeals, Applications, Civil Procedure, Default judgment,, Setting aside judgment

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 or defence before the date that judgment is entered, even if those documents are late. I am grateful to David Platt QC for informing me that this very point is just about to be litigated before the Court of Appeal in Clements Smith v BLM.  This was a case that has been looked at before.  It is interesting to review the decision at this stage, prior to the Court of Appeal decision.

THE JUDGMENT AT FIRST INSTANCE

The Master’s  judgment was looked at in detail on this blog in July last year. The claimant brings an action for personal injury, in excess of £3 million.  The time for filing a defence had expired and the defendant made an application for an extension of time. The claimant applied for judgment in default on the 17th October 2018, the defendant filed a defence on the 28th December 2018. The court made an order for default judgment on the 2nd January 2019.  The question that arose was whether the default judgment, entered after a defence had actually been served, was a regular judgment. The Master found that

“My decision therefore is that meaning (i) in Andrew Baker J.’s terms prevails and that where as here a defence was filed prior to the point at which the court came to apply rule 12.3, the court did not have jurisdiction to enter default judgment. Judgment must be set aside as of right.”

THE POSTCRIPT TO THAT JUDGMENT

The judgment contained a short postcript, it was clear the rule was to be changed. Clearly implementation has taken longer than envisaged.

  1. After supplying a draft of this judgment to counsel, I was informed by a QB Master who sits on the Civil Procedure Rules Committee (CPRC), to whom I had mentioned my draft judgment, that changes to rule 12 had been approved and will come into effect in October 2019 which have the same effect as this judgment. However on further research and after contacting the CPRC I understand that no Statutory Instrument has been passed containing such a rule change and that the proper approach in the view of the CPRC is that one should in those circumstances proceed without any assumption that such a rule change will take place at all.
  2. In the light of the information initially received I was minded to reconsider the question of permission to appeal and the proper destination for an appeal but since any such rule change is said by the CPRC to be only a potential one at this point, and subject to last minute argument at handing down, I am minded not to alter the course directed above.
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