Evans v Bartlam

JurisdictionUK Non-devolved
JudgeLord Atkin,Lord Thankerton,Lord Russell of Killowen,Lord Wright,Lord Roche
Judgment Date30 April 1937
Judgment citation (vLex)[1937] UKHL J0430-1
Date30 April 1937
CourtHouse of Lords

[1937] UKHL J0430-1

Lord Atkin

Lord Thankerton

Lord Russell of Killowen

Lord Wright M.R.

Lord Roche

House of Lords

Lord Atkin

My Lords,


This is an appeal by the Defendant from an order of the Court of Appeal (Slesser and Scott L.JJ., Greer L.J. dissenting) who reversed an order of Greaves-Lord J., sitting in Chambers, setting aside on terms a judgment obtained against the Defendant on default of appearance. The case came before the learned Judge in Chambers on appeal from a Master who had refused the application. It appears that the Defendant in 1931 had incurred losses to the Plaintiff, a bookmaker, for bets on horse races to the amount of £1,336, which by the end of 1932 had been reduced by small payments on account to £1,241 11s. 9d. In May, 1935, the Plaintiff, not having received any further payments, gave an authority in writing to one Irving who carried on business as the National Turf Protection Society in the name of A. Harrison Ford, to recover the amount claimed by any steps he deemed expedient by further reporting the debtor to the Committee of Tattersalls or other authority. On 13th May Mr. Irving saw the Defendant and according to an affidavit made by Mr. Irving sworn on 9th October, 1935, he told the Defendant that the default would be reported to Tattersalls, and eventually agreed with him that the case would be withheld from Tattersalls so long as Mr. Irving was satisfied that the Defendant would settle within reasonable time. No further payments were made: there was a correspondence in which the Defendant appeared to make it clear that he had no means to pay: and that if pressed he would have to plead the Gaming Act. On 19th July, 1935, the writ in the action was issued, the endorsement being for £1,241 11s. 9d, the amount due to the Plaintiff under and by virtue of an agreement made on the 13th day of May between the Proprietor Secretary of the National Turf Protection Society acting as duly authorised agents of the Plaintiff and the Defendant. The writ was not served until 16th September, 1935, when it was served personally on the Defendant by Mr. Irving. The Defendant says that he was then told by Mr. Irving that he had three or four weeks for appearance: Mr. Irving denies this. On 24th September the Plaintiff's solicitors signed judgment on default of appearance and on the same day wrote to inform the Defendant and asked for a cheque. Two letters followed which form the ground for the decision of the majority of the Court of Appeal. On 26th September the Defendant wrote to the Plaintiff's solicitor:

"I am in receipt of yours of the 24th and note contents. I have seen Mr. Bartlam to-day and explained my position and he is willing for the matter to stand over so that I can see if I can make any arrangement to pay. I have never refused to pay him but have not had any income to do it with owing to bad trade. He is writing to Mr. Ford to-night. At the moment I have nothing and no assets and know he does not want to lose his money. P.S.—Kindly hold over for me and oblige."


The solicitor's answer was on 28th September, 1935:

"I am in receipt of your letter of the 26th inst. I have also received a letter from my client who states that he wishes me to do whatever may be necessary to obtain satisfaction of the judgment obtained against you. You will readily appreciate that you have brought the present position upon yourself. You have made numerous promises both to my client and to his agent Mr. Harrison Ford as to the settlement of the amount due. No one of such promises has been performed by you and my client was left without option but to proceed as he did. In all the circumstances I am prepared to let the matter stand over for a further period of seven days, but I must ask you to understand please that unless at the expiration of that period I receive payment of the total amount due proceedings will be taken to enforce the judgment without further notice to you."


On 3rd October, 1935, the Defendant took out a summons to set aside the default judgment and supported it by an affidavit in which he made the statement above mentioned as to having been told by Mr. Irving that he need not take any steps for a month, and stated that the alleged contract, if made at all, which was denied, was a contract by way of gaming and wagering. The Master dismissed the application: the learned Judge on appeal granted it and set aside the judgment on terms as to costs. The power to set aside a judgment obtained on default of appearance is given to the Court or a Judge under O. XIII, r. 10: and a similar power extending to judgments by default under any rule is given by O. XXVII, r. 15. It is a power entrusted to the discretion of the Court or Judge and by O. LIV, r. 12, the Master is given jurisdiction to exercise the discretion.


As to the limits of the discretion, if any, it may be necessary to say a word or two later. I only stay to mention a contention of the Respondents that the Master having exercised his discretion, the Judge in Chambers should not reverse him unless it was made evident that the Master has exercised his discretion on wrong principles. I wish to state my conviction that where there is a discretionary jurisdiction given to the Court or a Judge, the Judge in Chambers is in no way fettered by the previous exercise of the Master's discretion. His own discretion is intended by the rules to determine the parties' rights: and he is entitled to exercise it as though the matter came before him for the first time. He will, of course, give the weight it deserves to the previous decision of the Master: but he is in no way bound by it. This in my experience has always been the practice in Chambers, and I am glad to find it confirmed by the recent decision of the Court of Appeal in Cooper v. Cooper (1936) W.N. 205, with which I entirely agree.


On appeal to the Court of Appeal by special leave the majority, Slesser L.J. and Scott L.J., came to the conclusion that the Judge was precluded from exercising his discretion to set aside the judgment by the fact that with knowledge of the judgment the Defendant had applied for the matter to stand over for him to see if he could arrange to pay and the Plaintiff had consented to let it stand over for seven days. Lord Justice Slesser preferred to put it on the ground that the Defendant was seeking to approbate and reprobate. He took a benefit under the judgment, viz. seven days time, and could not thereafter be allowed to seek to set it aside. Lord Justice Scott preferred to put it on election. The Defendant knew or must be presumed to know that he had the right to apply to set the judgment aside and by asking for and obtaining time he irrevocably elected to abide by the judgment.


My Lords, I do not find myself convinced by these judgments. I find nothing in the facts analogous to cases where a party having obtained and enjoyed material benefit from a judgment has been held precluded from attacking it while he still is in enjoyment of the benefit. I cannot bring myself to think that a judgment debtor who asks for and receives a stay of execution approbates the judgment, so as to preclude him thereafter from seeking to set it aside whether by appeal or otherwise. Nor do I find it possible to apply the doctrine of election. It is a simple answer to say that to infer election it must be shown that the person concerned had full knowledge of the various rights amongst which he elects. There is here no evidence that the Defendant at the time he asked for and received time had any knowledge of his right to apply to set the judgment aside. I cannot think that there is any presumption that he knew of this remedy either sufficiently for the purposes of the doctrine as to election or at all. For my part I am not prepared to accept the view that there is in law any presumption that anyone, even a Judge, knows all the rules and orders of the Supreme Court. The fact is that there is not and never has been a presumption that everyone knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application. Neither of the Lords Justices expressed any intention to review the discretion exercised by the Judge in Chambers except by reference to the point which in their opinion in law precluded him from exercising any discretion in favour of the Defendant. Coming to the conclusion that this point of law is ill-founded, I think it follows that the appeal to the Court of Appeal should be dismissed. I find myself in agreement with the reasoning of Lord Justice Greer except on one point. I agree that both rules, O. XIII, r. 10, and O. XXVII, r. 15, give a discretionary power to the Judge in Chambers to set aside a default judgment. The discretion is in terms unconditional. The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by...

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