Claimants Entitled To Default Judgment Where Defence Is Filed Late

In the recent decision of Billington v Davies [2016] EWHC 1919 (Ch), Deputy Master Pickering illustrated two important principles in relation to the late filing of defences.

Firstly, where a claimant has applied for default judgment in default of the defence they are still entitled to default judgment even if the defence is filed between the date of the application and the date of the hearing. Secondly, an application for an extension of time for filing a defence is dealt with on the basis of CPR 3.9 and Denton principles. 

The facts of Billington, were that the First Defendant filed an acknowledgment of service. The defence was due on the 4th January 2016. No defence was served PAGE | 4 and, on the 11th April 2016, the claimant issued an application for judgment in default of filing a defence. The defendant then served a defence the day before the hearing was due to be heard and at the same time made an application for an extension of time to file the defence.

The defendant submitted that the claimant was not entitled to default judgment once the defence had been filed by virtue of the wording of CPR 12.3(2) which states that:

Judgment in default of defence may be obtained only -

1. where an acknowledgement of service has been filed but a defence has not been filed; 
2. in a counterclaim made under rule 20.4, where a defence has not been filed, and, in either case, the relevant time limit for doing so has expired. 

The Deputy Master rejected this argument on the grounds that to accept it would bean that an application for judgment in default of a defence will automatically be defeated whenever a defendant files a defence – however late. It was also said that: 

‘…the reference to ‘a defence’ in CPR 12.3(2)(a) must be a reference to a defence which has either been served within the time permitted by the Rules or in respect of which an extension of time has beene granted. Where a defence is served late, unless and until an extension has been granted, a document purporting to be a defence is not in fact a defence for the purposes of CPR 12.3(2)(a). To this extent, the note at 15.4.2 of the 2016 edition of the White Book is, in my judgment, wrong’. 

The note at para 15.4.2 of the White Book states: 

‘Filing a defence late will prevent the claimant obtaining a default judgment (see r.12.3). However, the claimant may instead apply for an order striking out the defence under r.3.4(2)(c).’

The Deputy Master also rejected the defendant’s application for an extension of time.