Warning to Claimants! The Court can and will set aside Judgment entered in Default where the Claimant has failed to file a certificate of service and serve the Defendant with a Response Pack

In the recent case of Gulf International Bank BSC v Ekttitab Holding Company KSCC and another [2010] EWHC B30 (Comm.) the court considered an application to set aside a judgment entered in default on the basis of breaches of court rules by the claimant.

 In this case, the court held that a default judgment can and will be set aside where it is found that the claimant has not complied with CPR 6.17(2): notice and certificate of service relating to the claim form and CPR 7.8(1) form for defence which must be served with the particulars of claim “the response pack”

 CPR6.17 states that where a claimant serves the claim form, he must within 21 days of service of the particulars of claim, file a certificate of service.  Ina addition, Judgment in default under CPR 12 may not be obtained unless a certificate of service has been filed.

 CPR 7.8 sates that in addition to the particulars of claim, a claimant must also serve on the Defendant the Response Pack ie. a form for defending the claim; a form for admitting the claim; a form for acknowledging service.

In Gulf International Bank BSC Mr Justice Simon held that the words used in CPR 7.8 were clear and mandatory.  The  Claimant must file a certificate of service within 21 days and may not obtain judgment in default if he has failed to do so.  Although he did say that at the court’s discretion and under the court’s powers in CPR 3.10 where there has been an error of procedure such as failure to comply with a rule or practice direction and where there is no prejudice to the other side, the court may make an order to remedy the error.

 However, in Gulf International Bank BSC, the Claimant also failed to provide the Defendant with a Response Pack in accordance with CPR 7.8(1) which is again mandatory.  This was a more serious breach of court procedure. It is the Response pack which “highlights the procedural steps which must be taken to prevent judgment being obtained in default.”  If a Defendant is not provided with the very form which tells them how to avoid a default judgment being entered against them, then the Claimant is clearly in breach of his duty.

 Mr Justice Simon highlighted the importance of a Defendant being provided with a Response Pack, not least because in this particular case, the Defendants were not represented by English Solicitors and thus who may not have had as thorough an understanding of English procedural law compared to  those who practice in the English courts.

 Although the court has a discretionary power to set aside default judgment under CPR13.3 in this case, there was a good reason why the default judgment should be set aside so that injustice could be avoided.

 Mr Justice Simon also found that the Claimant had not complied with the applicable pre-action protocol and had not sent a letter before action setting out the nature of the case before proceedings were begun.

 Accordingly, the Claimant was ordered to pay the defendant’s costs of the application.

 Potential claimants – be warned! It is imperative that claimants and their legal advisor follow the requirements of the CPR in relation to filing certificates of service with the Court and issuing the Defendant with the Response Pack; this is especially important when dealing with a foreign defendant although should as a matter of practice be followed when dealing with any defendant.