PROMPTNESS AND APPLICATIONS TO SET ASIDE JUDGMENT : THE BIG YELLOW VAN –V- RAYNER (2014) IPEC (Judge Hacon) 27/05/2014 CONSIDERED
The importance of a prompt response to procedural issues and setting aside default judgment has been explored previously on this blog. The Big Yellow Van case, reported on Lawtel today, further highlights the need to make applications promptly. The following is based on the Lawtel summary.
The claimant brought a claim against the defendant for passing off and infringement of its trademarks and copyright. The claimant issued proceedings but the Defendant failed to acknowledge service. The claimant therefore obtained default judgment.
Fourteen weeks later the Defendant made an application to have the default judgment set aside.
THE RELEVANT RULES
The rules concerning setting aside default judgement are contained in CPR 13.3:
(1) In any other case, the court may set asideor vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
(2) In considering whether to set asideor vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
The judge refused to set aside the default judgment. There had been 102 days between the service of the order upon the defendant and their application to aside, which was a very long delay and was not prompt within the meaning of CPR 13.3. Furthermore none of the defendant’s grounds raised the possibility that he had a good defence and there was no other reason for the judgment to be set aside.
- Making applications promptly is key, especially in relation to applications to set aside judgement.
- For further discussion on the importance of promptness see
- Service by email: Setting aside judgments after Mitchell and much more
- Surviving Mitchell 11 : Be Prompt: Be very prompt
- Setting aside default judgment after Mitchell: What is the appropriate test?
- Massive Delay, Setting aside judgment and the Mitchell principles