Judgment in Default, Late Service of Defence and Relief from Sanctions: Billington v Davies & Anor [2016] EWHC 1919 (Ch)

Judgment has only recently been handed down in the High Court case of Billington v Davies & Anor [2016] EWHC 1919 (Ch). Here, the 1st defendant was unsuccessful in running an argument that ‘an application for judgment in default of a Defence will automatically be defeated whenever a defendant files a Defence – however late’.

Proceedings occurred as follows. The claimant issued an application for judgment in default of filing a defence.  However, 1 day before the listed application hearing (the judge recused and the hearing did not go ahead), the 1st defendant filed and served a defence. An application for an extension of time for the service of the defence was subsequently issued. This application was heard before Master Pickering.

The Judgment in Default Issue

Pursuant to CPR 12.3:

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The defendant sought to interpret that: ‘on a literal reading of CPR 12.3(2) by filing and serving his Defence – albeit out of time – it follows that the pre-condition in CPR 12.3(2)(a) is no longer met and that as a result default judgment can no longer be sought’.

However, this was rejected. Where CPR 12.3 refers to a ‘defence’ Master Pickering reasoned that this must refer 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 been 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)’.

Accordingly, it was necessary to consider whether the 1st defendant could be granted an extension for service of the defence. The case of Sayers v Clarke Walker [2002] 1 WLR 3095 established that the correct test was akin to the test for relief from sanctions.

Relief from Sanctions for Failure to File a Defence?

The breach, in this instance, had been the failure to serve a defence for just over 4 months.

Master Pickering considered the 3-stage test established in Denton v TH White Ltd [2014] 1 WLR 3926.

The judge described the length of delay as being ‘very late service’. He also noted that the 1st defendant did not issue an application to extend time until prompted by the Master who was set to hear the default judgement application hearing. As such, Master Pickering found that the 1st defendant’s failure was ‘sufficiently serious or significant’.

Further, he could not find ‘good reason’ for the failure and, taking into account ‘all the circumstances of the case’, Master Pickering ruled that this was not an ‘appropriate’ case for exercising his discretion to extend time for the filing and service of the defence.

Full text judgment can be accessed here.