Samara v MBI & Partners UK Ltd
Demonstrates the Courts attitude to applications to set aside applications post Jackson
The First Defendant having failed to file an acknowledgment/defence permission was granted to the Claimant to enter default judgment. A summary assessment hearing was set down to assess the Claimant’s costs. Shortly before the hearing the First Defendant’s solicitor sought the Claimant’s consent to the First Defendant filing a defence out of time. The Claimant refused. The matter proceeded to the hearing and judgment was entered for the Claimant in the sum of £363,421.47.
The Claimant’s solicitors requested payment within 14 days and threatened enforcement proceedings in default. Whilst the First Defendant did state they intended to set judgment aside it was not until over a year later, when the Claimant attempted enforcement, that they took action. The First Defendant’s solicitor agreed to suspend enforcement action on the condition an application to set aside was served by 4.30pm on 21st May 2013.
The Initial Application
On 21st May an application to set judgment aside was issued supported by a draft defence. The defence pursued was that the claim was statute-barred. The Master accepted that this ground had a real prospect of success.
Having gotten over the hurdle of reasonable prospects, promptness of the application was considered. The Master considered the First Defendant’s conduct was not in accordance with the overriding objective and would not be in compliance in granting the application made at least 16 months following becoming aware of the judgment.
The Application of the New CPR (Jackson Reforms) to CPR 13.3
Whilst the Defendant’s counsel submitted that the new regime does not apply to CPR 13 as there had been no trial the Judge did not agree. The Judge considered the new regime had universal application. The Judge pointed out that the change to the overriding objective which applies to all parts of the CPR. There is no express provision that CPR 13 is excluded. There is no theoretical justification for its exclusion.
References included Mitchell, the need for promptness in Durrant v Cheif Constable of Avon & Somerset Constabulary and Thevarajah v Riordan when considering that when considering the new regime the need for promptness has even greater significance than previously.
Nature and Extent of the Delay
The following delays were considered in this case:
The period from 11th August 2011 when the Acknowledgment of Service was due until 20th January 2012.
The First Defendant’s counsel submitted the delay to be considered was that between the entry of judgment and the issuing of the application therefore considering the Master had erred in considering other delays. It was explained that the Master had criticised why no application was made to extend the time to file the Acknowledgement of Service or Defence. The Judge considered the Master was entitled to take this period into account.
2. The period from January 2012 to 27th March - the date of the telephone call when the Claimant’s solicitor returned the First Defendant’s solicitor’s call.
The Master had considered that it was incumbent upon the First Defendant to make an application immediately without waiting to find out whether the Claimant would consent. The First Defendant submitted that an application did not need to be made immediately but promptly. The submission was rejected - the Master had not erred and was aware of the need for promptness.
Should the Appeal be allowed under the New Regime?
The application should be made promptly. It is no excuse to delay to see if the Claimant will consent.
Relief is usually only to be granted under the new regime if the default is trivial and there is good reason for the failure and not because of inefficiency. The First Defendant’s case does not fall within either of those exceptions.
Issues of prejudice are no longer relevant.