Nolan v Devonport

An application to set aside judgment must be made and pursued promptly once the judgment is known, particularly where there is a genuinely arguable defence. Waiting until enforcement begins may constitute an abuse of the court’s procedure. Parties share a duty to help the court further the overriding objective and to prompt the court where proceedings have stalled. Under the court’s general case-management power, an extant but dormant application may be struck out where delay, prejudice and the applicant’s conduct make that course just, and no lesser sanction is adequate.

The claimant had obtained judgment against the defendants in 1995. The second defendant said that she had not learned of the judgment until 2001 and issued an application to set it aside in December 2002, after enforcement steps had begun. The application remained dormant after an intended transfer between courts and was not listed for hearing until 2006.

The claimant applied to strike out the set-aside application as an abuse of process and sought a final charging order. The court considered the delay, the parties’ respective duties to progress the application, prejudice caused by continued delay, and whether striking out was proportionate.

1. Application struck out. The court held that the second defendant’s failure to pursue the application promptly, together with the circumstances in which it was revived, made the application an abuse of the court’s procedure. The claimant’s application to strike out therefore succeeded.
2. Under Part 13.3(2) of the Civil Procedure Rules, a person who learns that judgment has been entered against them must act promptly to seek its setting aside where there is real merit in the available defence. A decision to wait until the judgment creditor takes enforcement steps is not, without more, reasonable.
3. The court could consider the apparent prospects of the set-aside application when deciding the strike-out application, provided it did not in substance prejudge the merits. The unexplained delay from the second defendant’s alleged discovery of the judgment until her application, and the absence of any prompt action to progress it, created insuperable difficulty in satisfying the promptness requirement.
4. Both parties have a duty under Part 1.3 of the Civil Procedure Rules to help the court further the overriding objective, including by prompting the court when proceedings are delayed. The court’s failure actively to manage the application did not remove the second defendant’s greater responsibility for the prolonged inactivity in the circumstances.
5. Part 3.1(2)(m) conferred jurisdiction to take the step of striking out the application where that was just in order to further the overriding objective. Given the undue prejudice to the claimant, the abusive and dormant nature of the application, and the absence of an adequate alternative sanction, striking out was the proper order.
6. The charging order was made final.