#10146 - Setting Aside Default Judgment Memo - Civil Litigation

To: Anita Shah

From:

Reference: EM0193

Date:

Client: DMS (Printers & Bookbinders) Limited

Client’s Matter: Setting aside the judgment in default

Introduction

I have been asked to research the basis on which DMS can apply to set aside the judgment in default, which was obtained by Clarke & Sons on 6 December 2011. I have explained the relevant procedure that will need to be followed and any documentation which we will need to prepare.

An alternative way would be : “Whether under the Civil Procedure Rules (“CPR”) DMS (Printers & Bookbinders) Limited (“DMS”) can apply to set aside judgement in default. This note outlines the relevant procedure and the documentation required for DMS to apply to set aside judgement in default by Clarke & Sons Limited.”

Content

The basis upon which DMS can apply to set aside the judgment in default

The default judgment was entered by Clarkes after the 14 day time limit, therefore the courts will not be obliged to set aside the default judgment (13.2). Rule 13.3 states that the court has a discretion to set aside a judgment in default where the Defendant has a real prospect of defending the claim (13.3(1)(a)) or if there is some other good reason (13.3(1)(b)). Jonathan Friedman was primarily Clarke’s contact within DMS who was then killed following a car accident. This would likely be satisfactory for DMS to apply to the court to have the default judgment set aside. The application would need to be supported by evidence of Jonathan’s death and should be done promptly (13.3(2)).

An alternative way would be : “Clarke & Sons obtained judgement in default against our client (DMS) in relation to litigation that was commenced by Clarke & Sons on 6^th November, 2013 for the printing and binding of 500.000 books. Our client may be able to apply to set aside judgement in default under Part 12 of the Civil Procedure Rules (“CPR”). Part 12 outlines the requirements and grounds for Setting Aside a Default Judgement. Clarke & Sons Ltd did not enter into default judgment procedures wrongly and therefor, DMS will have to apply to the court to set aside the default judgement. It is a discretionary decision of the court to do so. In seeking to set aside the judgement DMS will have to satisfy the court, Under CPR Part 13.3(1), that:

1. It has a real prospect of defending the claim (r.13.3(1)(a)); or

2. In the eyes of the court there is some other good reason (r.13.3(1)(b)) to :

1. set aside or vary the default judgement; or

2. DMS should be allowed to defend the claim.

DMS is required to make its application to set aside the judgment promptly (r.13.3(2)) and include a “draft defence” outlining the basis of the claim and evidence to show why DMS did not respond to Clarke & Sons’ claim in time.

The relevant procedure that would need to be followed

An application to court would be made using Form N244 to the Leeds District County Court. A district judge would hear the case. 23.6 prescribes that an application notice must state what order the applicant is seeking (set aside the default judgment) and why the applicant is seeking the order. Evidence of Jonathan’s death and backlog of work (including the Particulars of Claim and Default Judgment) would need to be submitted to the court to be relied on. Jaswinder Bhogal’s signed witness statement should be included with the submission. If the court does set aside the default judgment, it will give directions for the future management of the case. As the setting aside will be discretionary (rather than mandatory) and not the fault of DMS, the costs incurred will usually be transferred into the case.

Documentation that will need to be provided

DMS should include in the “draft defence” the following documents:

1. as to the evidence to defend the claim:

   • James Daly’s (DMS in-house expert)...