In the matter of Clements Smith v Berrymans Lace Mawer Service Company and another [2019] EWHC 1904 (QB) (18 July 2019), the High Court has considered the issues about the interpretation of CPR 12, 13 and 3 and the well-known Denton principles in cases to set aside judgment.
The Claimant in this personal injury action had applied for Default Judgment following the Defendant’s failure to file a defence. However prior to filing this request for judgment, the Defendant had filed an application to extend the time for filing a defence. During the course of this request being considered by the court, the Defendant also filed a defence, which did not make it onto the court file until after the Judgment had been entered.
The Judge considered the three alternative meanings of CPR 12.3 put forward in Cunico Resources NV and others v Daskalakis and another [2018] EWHC 3382. This part of the CPR states:
- The claimant may obtain judgment in default of an acknowledgment of service only if:
- (a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
- (b) the relevant time for doing so has expired.
Andrew Baker J in Cunico put forward three meanings of this part when looking at the court’s power to enter the usual default judgment. The circumstances where default judgment can be granted can be summarised as follows:
- Where at the time of judgment there is no acknowledgment of service filed by the Defendant and the time for doing so has expired;
- Where at the time that the request/application for default judgment is made, there is no acknowledgment of service filed by the Defendant and the time for doing so has expired; or
- Where irrespective of whether an acknowledgment of service has been filed, if it was not filed within the timeframes, the court can grant judgment.
Whilst the Cunico case applies to acknowledgements of service, the Court in this case considered that as an analogy can also be drawn to defences, its principles can apply.
In Clements Smith, the Court found that meaning of CPR 12.3(1) should be the natural meaning. The Court should only grant judgment in default where the defendant has failed to file any defence prior to the entry of judgment. The time for filing is irrelevant where a defence is filed, even if it is late.
The reasoning that it cannot be number 3 above in the Court’s view that just became it is filed late does not automatically mean that it should be treated as not being validly filed. There is nothing within the wording of CPR 12.3(1) which requires it to be a timely defence. The Court also commented that Denton could not apply as by adopting the above reasoning, there had been no procedural error so no sanction was imposed that the court would be required to grant relief for. Denton sets out the relief from sanctions test.
Default judgment instead is the proper tool where the claim is not disputed.
The Claimant also asked the court to decide whether it would have made any difference if the Defendant had failed to disclose relevant facts like the existence of an application or that a defence had been filed. The Court commented that this did not matter unless it is a positive deception.
Interestingly in a postscript at the end of the judgment the Court comments that the meaning put forward in this case of CPR 12 is in line with the approved changes to this rule which are due to come into force in October 2019. Whilst it comes with a warning that this has not yet been approved and no reliance should be placed on it yet, if enacted it will put a stop to the Claimant being able to argue that the Defendant has failed to comply with court deadlines. It will also be interesting to see how this part operates in all too common circumstances where litigants in person fail to serve but just file their Defences with the court.
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