Ian Billington (Respondent/Claimant) v Simon Davies (Applicant//First Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Barling |
| Judgment Date | 19 October 2016 |
| Neutral Citation | [2016] EWHC 2969 (Ch) |
| Docket Number | Case No: HC-2015–004847 |
| Court | Chancery Division |
| Date | 19 October 2016 |
[2016] EWHC 2969 (Ch)
THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
The Honourable Mr Justice Barling
Case No: HC-2015–004847
Mr J Mather (instructed by *) appeared on behalf of the Respondent
Mr Van Tonder (instructed by *) appeared on behalf of the Applicant
This is an application by the first defendant to set aside a default judgment obtained in default of defence by order of Birss J on 11 August 2016. The application made today is the resumed hearing of the application which originally came before me in the interim applications list on 6 October 2016 and which was unable to be completed on that occasion.
On 6 October the applicant was represented by Mr Hill-Smith and the respondent to the application was represented by Mr Mather. Mr Mather appears again today at the resumed hearing, but Mr Hill-Smith is unavailable and although he had made his opening submissions, the respondent has today been represented for the purposes of reply submissions by Mr Van Tonder.
The procedural history is relevant to the matter and I will outline that history briefly. The background is that Mr Billington, the respondent, alleges that he has been a victim of a substantial property fraud perpetrated against him by the defendants, and that he has suffered loss as a result of advances made by him to the tune of about £1.6 million plus interest. He issued the present proceedings on 23 November 2015 and on that date freezing injunctions and orders for disclosure were made against the defendants. The freezing injunction has been continued by consent and remains in force.
Particulars of Claim were served on the defendants on 4 December 2015, the deemed date of service being 7 December and, therefore, defences were due at the latest by 21 December 2015 in respect of the second defendant and by 4 January 2016 in respect of the first defendant who had acknowledged service.
A period of some four months then elapsed without either defendant filing a defence or seeking any extension of time for service of a defence or referring to any intention to file a defence. So on 11 April 2016, the respondent made an application for judgment by default against the defendants. (An application, as distinct from a "request" under CPR 12.4, was made because the relief sought was not confined to a specified sum of money.) That application was listed to come on before Master Bowles on 18 May. On the day before that hearing was due to begin, the applicant's solicitors purported to serve a defence on behalf of their client. So on the next day, when the matter came before Master Bowles, the application for judgment in default was adjourned and the applicant was permitted to apply for an extension of time for service of his defence.
That application was heard by Deputy Master Pickering on 25 July 2016 and Mr Davies, the applicant, was then represented by counsel and by his solicitor, Mr Derek Cockle of Osman and Osman. The Deputy Master reserved judgment.
On 28 July there was a further hearing at which the Deputy Master gave judgment dismissing the application for an extension of time and directed that the respondent's default judgment application should be relisted to be heard at the earliest possible opportunity by any available Master or by a Judge as the case may be.
The solicitor acting for the respondent, Miss Amy Jane Harvey, in her witness statement of 3 October 2016, which has been put in in response to the set aside application, states that at the hearing on the 28 July the applicant's solicitor indicated to the court that he was no longer instructed by the applicant. She states that after the hearing she approached the solicitor and asked him to confirm that all future correspondence relating to the proceedings should be sent directly to the applicant, and that the solicitor, Mr Cockle, confirmed that that was the case. When asked whether there were any updated or alternative contact details for the applicant, Mr Cockle indicated that communications should be sent to him by post.
In the light of Deputy Master Pickering's order steps were taken by the respondent's solicitors to obtain the relisting of the default judgment application, and Chancery listing fixed it to be heard on the 11 August 2016 in the interim applications court. That decision having been communicated to the respondent's solicitors only on 9 August, that same day they sent to the applicant's home address a letter by first class post informing him of the hearing date. An attempt was also made to send the letter by email to an email address which the respondent had been given but the email was bounced back, indicating that it had not been delivered. Miss Harvey states that she also attempted to telephone the applicant on 9 August and again on 10 August and again on the early morning of 11 August, using a telephone number which she sets out in her witness statement. She states that her calls were unanswered and that no voicemail facility was available. However, she understands from correspondence received from the applicant that that number remains his mobile telephone number.
Therefore, on 11 August 2016 the matter came before Birss J in the interim applications list. I have today been provided with a transcript of the hearing before the learned judge. At that hearing he made an order that judgment be entered in favour of the respondent and that the applicant and the second defendant be jointly and severally liable to pay to the respondent the total sum of £1,716,488.31, that sum to be paid immediately. The order indicated that it was without prejudice as to the respondent's entitlement to seek further proprietary relief, including by way of declarations. The learned judge also granted liberty to apply and made provision for costs and for a payment on account of costs. The freezing order was to be continued pending satisfaction of the judgment.
As may be surmised from the history I have just recited, the applicant did not attend the hearing nor was he represented before Birss J. On the 19 August 2016, the sealed default judgment order was served on the applicant by first class post to his home address. On 24 August he sent an email from a somewhat different email address than the one that had been used by the respondent's solicitor in an attempt to contact him before the hearing, stating that he had not received notice of the default judgment application hearing on 11 August. On 1 September 2016 the applicant issued the present application to set aside the default judgment. As already indicated, the matter then came before me, first on 6 October.
Mr Hill-Smith and Mr Van Tonder, for the applicant, have pointed to what they submit is the unfairness and procedural irregularity of the application for judgment in default being heard without the applicant having an opportunity to be present. Inevitably some of the steam is taken...
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...third meaning. It is not a decision as between the first and second meanings, as either would have led to the same result. 24 In Billington v Davies et al. [2016] EWHC 1919 (Ch), Deputy Master Pickering refused to grant an application for an extension of time for defence where a defence was......