Setting aside Default Judgments | NHBC case report

22 July 2009



National House Building Council v (1) Relicpride Limited (2) Relicpride Construction Limited (3) Gerald Smythe (4) Anthony Smyth [2009] EWHC 1260

On 22 May 2009, B P Collins on behalf of their client, the Claimant, National House Building Council ("NHBC") successfully defended an application to set aside default judgment before Mr Justice Akenhead in the Technology and Construction Court.

Akenhead, J held that a delay of 42 days in making an application to set aside default judgment was not sufficiently prompt in order to comply with CPR13.3 (2). Relying on the judgment of Simon Brown LJ (as he then was) in Regency Rolls Ltd v Murat Carnall [2000] EWCA (CIV) 379, it is for an applicant to establish that: "… he has acted with all reasonable celerity in the circumstances".

Whilst this may seem unduly harsh, it should be viewed in the context of the repeated adjournments and extensions the Defendants had sought on grounds of ill health, which by their solicitor's own admission had been resolved by April 2009 and therefore ought not to affect their ability to give instructions prior to the hearing.

Akenhead, J also considered whether the Defendants had a real prospect of successfully defending the claim under the second part of the test pursuant to CPR13.3 (1) (a). It was held, that as no draft defence had been produced, the limitation argument the Defendants had raised was unlikely to be successful, and at best the Defendants' barrister said that there "may" be other defences, which was not sufficient.

Accordingly, the Defendants could not meet either part of the test in CPR13.3 having failed to establish that they (1) had a real prospect of successfully defending the claim or that they (2) had acted promptly in making the application to set aside.

The lesson for parties setting aside a default judgment in light of this case has to be to make the application promptly, and to always produce a draft defence to support any argument that there is a real prospect of a successfully defending the claim.

The legal team:
Nick Hallchurch, partner
Sarah Jackson, senior associate

Whatever the challenge you are facing, we can help you keep control of the situation. We are able to advise on the best approach, whether it be litigation or mediation, to advance and protect your interests. For legal advice, please contact the Litigation and dispute resolution practice group on 01753 279037, complete the online enquiry form or or email disputes@bpcollins.co.uk.

© Copyright