Anson v Trump

A default judgment entered after the prescribed period for serving a defence has expired is regular where no defence was served within time, even if the defendant later serves an irregular defence before judgment is entered. The judgment may be set aside in the court’s discretion, but not as of right. For fax service, “transmission” means receipt of the complete document into the recipient’s fax equipment. No additional period for communication to a person handling the matter should be implied. On an application to set aside, the court should consider whether the defence is genuinely arguable and whether justice requires permission to defend all or part of the claim.

The claimant, who organised a private party for the defendant, sued for the unpaid balance of her account. After the claimant amended her statement of claim, the defendant failed to serve a defence within the 21-day period ordered by the Master. The claimant entered default judgment. The defendant had faxed a defence to the claimant’s solicitors shortly before judgment was entered and applied to set the judgment aside.

The Deputy High Court Judge held that the judgment was regular, that the faxed defence had not been served in time, and that the defence was hopeless. The appeal concerned the regularity of the default judgment, the time of service by fax, and the exercise of the discretion to set the judgment aside.

Otton LJ gave the first judgment, with whom Robert Walker LJ and Woolf MR agreed.

1. Regularity of default judgment. Under Rules of Court, Order 19 rule 2, a defence served after the ordered period and without leave is irregular. It is not a nullity, but it does not prevent entry of default judgment. Judgment entered after expiry of the period, where no regular defence has been served, is regular and may be set aside only in the court’s discretion.
2. The earlier decisions in Gill v Woodfin and Gibbings v Strong provided limited assistance because the former procedure involved a judicial application for judgment. They nevertheless supported treating a late defence as an irregularity capable of consideration, rather than as a nullity.
3. Fax service. Under Rules of Court, Order 65 rule 5(2B), “transmission” means the process ending when the complete document has been received into the recipient’s fax equipment. A further reasonable period for printing, reading or communication within the solicitors’ office cannot be implied. The defence was therefore served at about 9.42 am, before judgment was entered.
4. Discretion on the merits. The defence raised an arguable issue as to whether the claimant’s charges were reasonable and whether supporting documentation had been withheld. The judge had therefore erred in treating it as hopeless. The defendant was given leave to defend the disputed balance only, after payment into court, and the claim was remitted to the County Court for determination of that outstanding sum.

The appeal was allowed to that extent. There was no order as to the costs of the appeal.

• Court of Appeal: Allowed the appeal to the extent of permitting a defence to the disputed balance and remitting that issue to the County Court.
• High Court, Queen’s Bench Division: Mr Mawrey QC, sitting as a Deputy High Court Judge, dismissed the applications to set aside the default judgment and for a stay, and dismissed the appeal from the Master’s order.
• Master’s order: Master Murray ordered service of a new defence within 21 days after service of the amended statement of claim.