Priestley v Dunbar and Co

 

Denton and Delay:

to what extent should delay impact upon an application to set aside judgment?

 

Priestley v Dunbar and Co

[2015] EWHC 987 (Ch)

30^th April 2015

 

Summarised by Nicola Phillipson

 

In granting the Defendant’s appeal against a refusal to set aside judgment, the issue of promptitude was considered.

 

Liability was entered in a professional negligence case on 22^nd November 2013. An application to set judgment aside was made on 25^th March 2014, 11 weeks after a CMC in which the DJ had ordered that any application to set aside “must be filed in Court as soon as possible”. The DJ refused to set aside judgment on the principal basis of lack of promptitude by the Defendant in making the application.

 

Granting the Defendant’s appeal, HHJ Behrens noted that the DJ’s decision was made post Mitchell but pre Denton, and when he granted permission he observed

“The case brings into sharp focus the question of how far lack of promptness should prevent a Defendant with an arguable defence on liability from succeeding in an application to set aside a default judgment and how far it is open to an appellate court to interfere.”

 

HHJ Behrens then proceeded to consider the issue of promptitude:

 

Promptness only relates to the period relating to the application to set aside the judgment. This is clear from the wording of CPR 13.3(2) and is confirmed in paragraph 30 of the judgment of Males J in Newland Shipping v Toba Trading [2014] EWHC 1986. However, as Males J pointed out “promptness” needs to be assessed in context. Furthermore delay prior to the entry of judgment can be taken into account as part of the general discretion to set aside a judgment.

 

“ … I would accordingly construe “promptly” here to require, not that an applicant has been guilty of no needless delay whatever, but rather that he has acted with all reasonable celerity in the circumstances.” (per Simon Brown LJ in Regency Rolls v Carnall [2000] EWCA Civ 379)

 

“… promptness now carries much greater weight than before. It is not a condition

that must be satisfied before the court can grant relief, because other factors may carry sufficient weight to persuade the court that relief should be granted, even though the application was not made promptly. The strength of the defence may well be one. However, promptness will always be a factor of considerable significance, as the judge recognised in paragraph 27 of his judgment, and if there has been a marked failure to make the application promptly, the court may well be justified in refusing relief, notwithstanding the possibility that the defendant might succeed at trial.” (per Moore-Bick LJ in Standard Bank v Agrinvest [2010] EWCA Civ 1400)

 

HHJ Behrens agreed with the DJ that the application to set aside had not been made promptly, stating that it should have been made some weeks earlier, certainly within five weeks of the CMC. He further held that the DJ was entitled to find that this failure was a significant and serious breach for which there was no good reason. However, applying Denton rather than Mitchell, and considering all of the factors of the case, this was a case where judgment should be set aside, and the appeal was therefore allowed.