Back in February 2011, I wrote a blog entitled ”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!” (please refer back to http://www.mablaw.com/2011/02/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 this blog, I cited the case of Gulf International Bank BSC v Ekttitab Holding Company KSCC and another [2010] EWHC B30 (Comm.) where 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 Gulf International, the court held that a default judgment can and will be set aside against a Defendant where it is found that a Claimant has not complied with CPR6.17 (ie. to provide a certificate of service within 21 days of service of the Particulars of Claim) and also CPR7.8(1) (ie. to provide a Defendant with a Response Pack – it is the Response Pack which highlights the procedural steps which must be taken to prevent judgment being obtained in default).
The Rules to set aside or vary a default judgment
CPR3.10 gives the Court a general power to remedy matters where there has been an error of procedure.
CPR13.3 sets out the rules where a court may set aside or vary judgment entered under CPR12.
Although this power is discretionary and will be exercised by the court where the defendant has a real prospect of successfully defending the claim or where there is some other good reason why the judgment should be set aside or varied so that the defendant is allowed to defend the claim (CPR 13.3), the court will always consider whether the person seeking to set aside the judgment made an application to do so promptly (CPR13.3(2)).
Update
It is CPR13.3 which has been considered more closely in the recent case of Henriksen v Pires [2011] EWCA Civ 1720 where the Court of Appeal has held that where a Defendant has failed promptly to apply to court in order to set aide a judgment entered in default, in accordance with CPR13.3(2), this outweighs any potential procedural technical defect that the Claimant has demonstrated in failing to file a certificate of service (Form N215) and/or a Response Pack.
In Henriksen v Pires, the Defendant’s application to set aside judgment was made more than 8 months after judgment had been entered. The wording of CPR13.3(2) is very specific and states that the a person requiring a judgment to be set aside should make their application promptly. The case of Mullock v Price EWCA Civ 1222 considers in detail the meaning of “promptly”.
Henriksen v Pires demonstrates to a Defendant just how important it is to make a prompt application to the court to set aside judgment. Even where a Claimant has not followed the technical rules strictly in relation to filing a certificate of service and/or issuing a Defendant with a Response Pack, Henriksen shows that the Court is willing to forgive a Claimant such indiscretion when faced with a Defendant who has caused unnecessary delay in bringing their application to set aside judgment.