SERVICE OF THE CLAIM FORM: SETTING JUDGMENT ASIDE; JURISDICTION; DELAY AND DENTON – QUITE A LOT IN ONE CASE
There are a lot of issues in the judgment of Master Sullivan in Tradin Organic Agriculture BV v Gold Grain Gida Tarim Urunleri Sanayi Ve Ticaret Anonim Sirketi [2024] EWHC 1562 (KB). Firstly whether the mixing up of pages in…
APPLICATION TO SET ASIDE DEFAULT JUDGMENT: THREE MONTHS DELAY IS NOT “PROMPT”: ABSENCE OF EVIDENCE AND A DRAFT DEFENCE DID NOT HELP
In Pincus v Singh & Anor [2023] EWHC 2997 (Ch) HHJ Paul Matthews refused a defendant’s application to set aside a default judgment. The defendant had waited for three months before making the application. There was no evidence in support…
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…
YOU SHOULD REALLY NOTICE WHEN YOU HAVE FAILED TO COMPLY WITH A COURT ORDER AND REQUIRE RELIEF FROM SANCTIONS: “THE COURT’S PATIENCE WAS BEING SORELY TESTED”
A short part of the judgment of Master Stevens in Bailey v Bijlani & Anor [2022] EWHC 2821 (KB) records the fact that the applicant defendant required relief from sanctions, but was not proposing to ask for it. “… I…
SETTING ASIDE A DEFAULT JUDGMENT: HAVE COGENT EVIDENCE (AND A DRAFT DEFENCE) TO HAND: DEFENDANT’S DELAY ALONE WOULD HAVE LED TO APPLICATION BEING REFUSED IN A CLINICAL NEGLIGENCE CASE
I am grateful to Barrister Leslie Keegan for their note of the judgment of Master Cook in Buckingham -v- Elneil (15th July 2022)*. The Master refused the defendant’s application to set aside a default judgment. The defendant did not have…
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. …
EXCESSIVE COSTS INCURRED IN ARGUING ABOUT COSTS: A PARTY OBTAINING RELIEF FROM SANCTIONS WAS CORRECTLY ORDERED TO PAY THE COSTS OF THE APPLICATION: “RULES EXIST FOR A REASON”
In Swivel UK Ltd v Tecnolumen GmbH & Anor [2022] EWHC 825 (Ch) Mr Justice Marcus Smith upheld the decision of a Master that a party that had obtained relief from sanctions should pay the costs of the application. It…
THE ABSENCE OF A GOOD REASON FOR NOT ATTENDING A TRIAL LEADS TO DEFENDANT’S APPLICATION TO SET ASIDE BEING REFUSED
The judgment of Deputy Master Scher in Miah v Ullah [2021] EWHC 3712 (Ch) contains an important reminder of the rigorous test a party has to meet when they fail to appear at a trial. The Master found that the…
COURT REFUSES TO SET ASIDE JUDGMENT IN RELATION TO SOLICITOR’S COSTS: SERVICE AT AN ADDRESS IN THE REGISTER IS THE PRICE OF BEING A DIRECTOR
In Farrer & Co LLP v Meyer [2022] EWHC 362 (QB) Mr Justice Kerr refused to set aside a long-standing judgment on a bill for solicitor’s costs. The judgment also considered the importance of s.1140 of the Companies Act 2006….
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…
DEFAULT COSTS CERTIFICATE NOT SET ASIDE: SERVICE BY EMAIL WAS WRONG, BUT RECTIFIABLE: RELIEF FROM SANCTIONS REFUSED
Cases on Default Costs Certificates appear to be like London Buses – they come along in twos. Here we have the second case in two days. In Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co [2021] EWHC 1205…
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…
COURT SET ASIDE A JUDGMENT OBTAINED 10 YEARS LATER: COURT FINDS THAT DOCUMENTS WERE FORGED BY DEFENDANTS: ANOTHER ROUND IN A BARE KNUCKLE FIGHT
In March last year I wrote about the Supreme Court’s decision in Takhar v Gracefield Developments Ltd & Ors [2019] UKSC 13. In that case the Supreme Court held that a claimant could bring an action to set aside an earlier judgment which,…
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…
SETTING ASIDE AN ORDER MADE WITHOUT A HEARING OR MADE WITHOUT NOTICE : THE RELEVANT CRITERIA
The previous post looked at the judgment in Kuznetsov, R (On the Application Of) v London Borough of Camden [2019] EWHC 3910 (Admin). In that judgment Mostyn J stated that there was no authority on the issue of the criteria when…
COSTS ORDERS MADE WITHOUT A HEARING: HENRY VIII AND THE RELEVANT CRITERIA FOR VARYING ORDERS
We are looking again (and not for the last time) at the decision of Mr Justice Mostyn in Kuznetsov, R (On the Application Of) v London Borough of Camden [2019] EWHC 3910 (Admin). This time on the question on the…
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…
FAILING TO TURN UP TO A TRIAL: DEFENDANT’S APPLICATION REFUSED: CPR 39.3(3) CONSIDERED
This blog has looked several times at the issues relating to CPR 39.3(3), the rule that governs an application when a party fails to attend a trial or hearing. The rule was considered by Mrs Justice Lambert in KD v…
STAYING SANE AS A LITIGATOR 5: THINGS WILL GO WRONG: “YOU GOTTA HAVE A PLAN”: DON’T CRASH…
No matter how hard you try, on occasions, things will go wrong in litigation. Do you have a plan? Here we examine the need to have a plan to cover default and other issues in litigation. We then look in…
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…
CIVIL PROCEDURE BACK TO BASICS 48: AN APPLICATION TO SET ASIDE AN ORDER MADE WITHOUT NOTICE IS A REHEARING AND NOT A REVIEW (& NO NEED TO WORRY ABOUT THE TIBBLES CRITERIA GETTING ITS CLAWS INTO THE CASE EITHER)
One point that arose from the Court of Appeal decision in Al-Zahra (PVT) Hospital & Ors v DDM [2019] EWCA Civ 1103 contains observations which indicate that it is easy to lose sight of a basic point in relation to orders…
BANKRUPTCY PETITION NOT SERVED PROPERLY: BANKRUPTCY NOT ANNULLED
There may well be a disturbance in the Force if there is not a service of the claim form case every few weeks. In Ardawa v Uppal & Anor [2019] EWHC 456 (Ch) Mr Justice Roth held that a judge could…
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…
WHEN THE OTHER SIDE’S LAWYER SENDS THE COURT PRIVILEGED DOCUMENTS: THE DILEMMA OF THE PARALEGAL “WHISTLE BLOWER”
Several people have pointed out the judgment in Bruzas v Saxton [2018] EWHC 1619 (Fam) to me. This is a case that could have profound effects for the profession and the principles of legal professional privilege. This is the preliminary…
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…
SETTING ASIDE A DEFAULT JUDGMENT DURING CLOSING SUBMISSIONS AT TRIAL: A “HIGHLY UNUSUAL CASE”
I am grateful to barrister Robert Smith for sending me a copy of the judgment of His Honour Judge Gargan in the case of Jackson -v- Durham County Council & ors (20th December 2017). The judgment dealt with the issue…