There are now several cases that deal with how the “Mitchell/Denton” principles effect applications to have judgment set aside. In Robinson -v- Kensington & Chelsea Royal London Borough (Sir Michael Tugendhat 03/011.204 QB)* a default judgment was set aside on the grounds that the defendant had a real prospect of successfully defending the claim.
The claimant was bringing an action for libel. The claim form was defective in that it did not provide particulars of claim and a stay was ordered. The defendant was served on the 24th July when its legal officer was out of the office. By the time the defendant took steps to acknowledge service, five days late, a default judgment had been entered.
- The local authority had a real prospect of successfully defending the claim.
- The failure to serve the acknowledgment of service in time was, in these circumstances not a serious.
- The delay only amounted to five days and the claimant had already been delayed by the claimant’s difficulties when issuing proceedings.
- The claimant had not given the defendant any indication that proceedings were about to be served.
COMPARE AND CONTRAST
This contrasts with the judgment in Hockley -v- North East Lincolnshire & Goole NHS Trust when the defendant’s application to set judgment aside was refused. However note:
- The defendant did not, in the Hockley case, argue that it had a real prospect of successfully defending the claim it relied solely on “some other good reason”.
- The acknowledgment of service was 13 days late.
- The default was held to be serious, with no good explanation.
- It was held that where a defendant attempts to invoke the “other good reason” ground the court must consider this by reference to how serious the default was and how it occurred.
ALSO ON THIS QUESTION
- Setting aside judgment after Mitchell: What is the appropriate test?
- Yet more on setting aside default judgment: delay and promptness
* Reported on Lawtel