Esther Lucy Clements Smith v Berrymans Lace Mawer Service Company
| Jurisdiction | England & Wales |
| Judge | Master McCloud |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] EWHC 1904 (QB) |
| Court | Queen's Bench Division |
| Docket Number | HQ17P03347 |
| Date | 18 July 2019 |
[2019] EWHC 1904 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Master McCloud
HQ17P03347
Laura Collignon (instructed by Blake Morgan) for the Claimant
David Platt Q.C. (instructed by Clyde & Co.) for the Defendant
DRAFT JUDGMENT
This is an application by the Defendant to set aside judgment in default of defence for a sum to be determined. This is a procedural decision of some significance since both sides agree that issues of interpretation arise in relation to Parts 12, 13 and 3 of the CPR and as to the application (or inapplicability) of the Denton (relief from sanctions) case law on these facts. The claim is for damages for personal injury in excess of £3m.
This judgment is virtually bound to be appealed since the facts appear to be unique and arguably not directly covered by binding authority, but the situation has been carefully considered by a previous court on a technically obiter basis, and I have endeavoured here to keep the decision short and to the point given that the points are substantially points of law on the application of the CPR to applications to set aside judgment in default and the role, if any, of the Denton principles in such cases.
To pre-empt the outcome of this decision, I grant the Claimant permission to appeal 1 and subject to any order of the Court of Appeal to the contrary I direct that appeal lies to that court in view of the absence of high authority and the mixed nature of first instance
decisions requiring in my judgment clarification. The points here are short ones but important. I shall refrain from extensive quotation from case law but incorporate it by reference as appropriate. A CCMC has been listed for 1 week after the hearing of these arguments and hence this judgment is necessarily brief so as not to disrupt case management by leading to that hearing being adjourned or rendered ineffectiveThe following features are the key ones in terms of the issues which arise as to application of the court rules (leaving aside wider facts going to exercise of discretion):
30/9/18 Application for an extension of time for filing defence submitted to court by which D sought an extension to 30 November 2018. It asked for a 25 minute phone hearing.
4/10/18 Agreed time for defence expired.
17/10/18 Request for judgment in default.
7/11/18 Staff refuse to issue the extension application dated 29/9/18 but return it asking for a Private Room Appointment form (PRA) to be provided.
21/11/18 PRA form received at court (approx.: no copy is on the court file but hearing bundle p94A has parties' copy).
26/11/18 Court staff issue application for extension (lodged on 30/9/18).
26/11/18 Court staff appear to produce a note eventually sent to the Master concerning the application to enter judgment and asking whether to enter judgment. The note does not refer to the application for extension having been issued but only to it having been returned unissued. It is unascertainable when that note was provided to the Master, but no later than 2/1/19.
19/12/18 Court staff list hearing date for extension of time, 25 minutes hearing to be on 15/2/19.
28/12/18 Defence received at court (possible that due to the Christmas vacation it was in fact at court on or after 21 December 2018). However no entry in any court record to that effect made until later nor any copy defence placed on file.
Date unknown prior to 2/1/19 Master is sent the note purporting 2 to be dated 26 November 2018 (see above) re default judgment.
2/1/19 Master directs judgment in default, “unless this has already been disposed of by consent”. Neither the completed PRA form nor the defence were placed on the court file nor any entry made on the court computer re the defence, until February.
15/1/19 Judgment in default entered.
15/2/19 The fact that a Defence had been filed was entered into the court system by staff. No defence actually on file.
13/2/19 (Approx.) Application to set aside judgment lodged (time estimate 2.5hrs). Returned by staff due to absence of a PRA form.
14/3/19 PRA form received at court.
5/4/19 Court staff list hearing of the application to set aside judgment, on 19 th July 2019. That is subsequently brought forward to 12/7/19.
12/7/19 Hearing of the application to set aside judgment to which this judgment relates.
The relevant rules
CPR Part 12
Conditions to be satisfied
(1) The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.
(2) Judgment in default of defence may be obtained only –
(a) where an acknowledgement of service has been filed but a defence has not been filed;
(b) in a counterclaim made under rule 20.4, where a defence has not been filed, and, in either case, the relevant time limit for doing so has expired.
CPR Part 13
Cases where the court must set aside judgment entered under Part 12
The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because – …
(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; …
Cases where the court may set aside or vary judgment entered under Part 12 13.3
(1) In any other case, the court may set aside (GL) or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) 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.
(2) In considering whether to set aside (GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
(Rule 3.1(3) provides that the court may attach conditions when it makes an order)
Defendant/applicant's arguments.
The issues were said to be (breaking this up from the more compact list in the Defendants' skeleton):
(1) Should the judgment in default be set aside as of right under CPR 13.2(b).
a. In particular Is it open to the court to enter a default judgment where a Defence is in fact filed prior to judgment (albeit without the extension application having been determined)?
b. Has the “relevant time limit for doing so expired” under the Rule when there is an outstanding application for an extension of time?
c. Does ‘failure’ (using D's term) to disclose a or b above affect matters?
(2) If the answer to (1)(a-c) is “No” on all points ought the court to set aside judgment
a. Under CPR 13.3(a) and 13.3(2) on the basis of merits and promptness?
b. Under CPR 13.3(b) and 13.3(2) on the basis that there is ‘some other good reason’ to do, and promptness?
(3) Even if rule 13.3 applies and is considered is it also the case that the application to set aside judgment should be treated as an application for relief from sanctions and hence engage the evidential burdens for a decision applying the Denton criteria under CPR 3.9 ( Denton v TH White [2014] EWCA Civ 906)?
Claimant's position.
The Claimant contends:
(1) that the judgment was regular and should not be set aside as of right (it was not made in time, the Claimant says).
(2) That the judgment should not be set aside discretionarily on the basis of promptness, the application was not made ‘in time’, the Denton requirements apply in addition to CPR 13.3 and are not satisfied here.
(3) Further if this is a discretionary case the court should dismiss the application, permission should be refused in accordance with the overriding objective and following Roberts v Momentum Services Ltd [2003] EWCA Civ 299.
(4) In the alternative without prejudice to the above, the court should if setting aside judgment and extending time for defence, impose conditions following Huscroft v P&O Ferries (Practice Note) [2010] 1483.
(5) A separate point is taken that the Defendants are said not to have served the application to set aside judgment (breaching CPR 23.4(1) and 23.7(1) as the Claimant reads them) and also it is said that it was a breach of the same rules not to have served the evidence in support with the application notice, but somewhat later. (Other matters said to be breaches not directly part of the setting aside application save insofar as they go to discretion are also referred to such as not following the pre-action protocol.)
Argument and decisions in detail
(1) Should the judgment in default be set aside as of right?
a. is it open to the court to enter a default judgment where prior to the request for judgment there is a live application to extend time for defence?
The Defendant argues that the application was made in time 3 for the purposes of CPR 13.2, ie that the “ the relevant time limit for doing so [ ie filing a defence] has expired”.
In the hearing by way of some paper-file archaeology the court was able to locate a copy of the request for default judgment, and it was established that the correct form was used and properly completed. Until the hearing this was unclear because the Claimant had not retained a copy of its own. Whilst the Defendant reserved its position given that the ‘archaeology’ was done in the course of the hearing, I do not understand there to be pursuit of any technical points as to the validity of the request now that it has been located. Once the parties receive this judgment in draft I shall invite any argument if there is to be any.
Some confusion may have been caused by the fact that when entering judgment I wrote to court staff that judgment was to be entered ‘unless this has already...
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