MacDonald and Another v Thorn Plc
| Jurisdiction | England & Wales |
| Judgment Date | 01 September 1999 |
| Date | 01 September 1999 |
| Court | Court of Appeal (Civil Division) |
COURT OF APPEAL
Before Lord Justice Brooke and Lord Justice Robert Walker
Practice - delay before case does not count
On an application to set aside a judgment in default for failure to serve a defence on time, a court was not entitled to take into account delay before the initiation of proceedings and consolidate such period with delay after proceedings were begun.
The Court of Appeal so held allowing the appeal of the defendant, Thorn plc, against the judgment of Judge Trigger in Birkenhead County Court on March 30, 1999, when he dismissed its appeal against the dismissal by District Judge Travers on March 16 of its application to set aside judgment in default of filing a defence entered on January 29 in favour of the claimants, Kathleen and Peter MacDonald.
A letter before action was sent to the defendant's insurers on October 6, 1998, in respect of a traffic accident on September 25 inquiring if liability was disputed. The insurers sent a holding letter on November 22 which was acknowledged.
Proceedings were served by post on the defendant on January 9, 1999. No reply having been received, judgment in default was entered on January 29. A defence was filed on February 3.
Mr Nigel Gilmour, QC, for the defendant; Mr Nigel Lawrence for the claimants.
LORD JUSTICE BROOKE said that the judge, while accepting that the defendant had a defence on the merits and that any prejudice to the claimants was minimal, found in the claimants' favour because of the defendant's lack of explanation for the delay, and considered he could take account of the period of delay up to the issue of proceedings.
Mr Gilmour contended, inter alia, that while the length of any delay should be taken into account, any pre-action delay was wholly irrelevant.
The primary consideration was whether the defence had any merits in the sense that there was a real prospect of success, and that justice should be done, see Mortgage Corporation Ltd v SandoesTLR (The Times December 27, 1996).
Moreover, the failure to provide a good explanation for the delay was not always a reason for the court to exercise its wide discretion against the delay (Finnegan v Parkside Health AuthorityWLR ((1998) 1 WLR 411, 420-421)) and therefore the court should exercise its discretion in the defendant's favour.
Mr Lawrence relied heavily on the failure to give an explanation for the delay since service of the letter before action.
If the judge...
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Chastenet Ets a Teissedre Bordinet Export Claimant v Stanley Leonaire trading as Lnj Trading Food Distributors Defendant [ECSC]
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