Nageh v Giddings & Anor

An application to set aside summary judgment must be made promptly and must be supported by a good explanation for the earlier non-attendance. The court may consider the factors in CPR 3.9(1), particularly promptness and the explanation for default. Service at the defendant’s usual or last known residence and principal or last known place of business is sufficient where the claimant has taken reasonable steps to identify those addresses. A judgment may nevertheless be set aside where the claimant deliberately uses an address known to be ineffective. Adjudication enforcement will not ordinarily be defeated by minor procedural complaints dressed up as jurisdictional or natural justice objections. An adjudicator’s decision remains temporarily binding, leaving the unsuccessful party free to bring substantive proceedings for repayment or damages.

The defendants applied under CPR 24 PD.8.2 to set aside summary judgment entered on 11 March 2005 to enforce an adjudicator’s decision requiring payment of £23,372.43. They said that they had not known of the adjudication or the enforcement proceedings and challenged service of the claim and court documents.

The claimant had served documents at the defendants’ former matrimonial home and at the last known business address confirmed by the RIBA and Companies House. The central issues were whether the application was made promptly, whether the defendants had a good explanation for their non-attendance, and whether service complied with CPR rule 6.5(6).

1. The application was dismissed. The summary judgment dated 11 March 2005 remained in force.
2. Under CPR 24 PD.8.2, the court’s discretion was guided by the material considerations in CPR 3.9(1), particularly promptness and whether there was a good explanation for non-attendance. The defendants waited until November 2006, despite learning of the judgment in June or October 2005. The delay was therefore excessive. The first defendant’s mental health evidence did not provide a reasonable excuse, particularly as the second defendant knew of the judgment and solicitors had acted on the first defendant’s instructions in relation to the statutory demand.
3. Service complied with CPR rule 6.5(6). The claimant’s solicitors had taken reasonable steps to identify the defendants’ last known residence and principal place of business. Service at both addresses was sufficient, despite the defendants’ failure to provide forwarding details and the change in the name of the residential block.
4. The court recognised that setting aside might be justified where a claimant deliberately used an address known not to be effective. That issue did not arise because there was no evidence of deliberate avoidance and the defendants accepted that no other address was known to the claimant.
5. Alternatively, the adjudicator’s decision would have been enforced. The adjudicator had attempted service at both relevant addresses. The remaining complaints were minor procedural objections and did not amount to a legitimate jurisdictional or natural justice challenge. The court relied on the caution concerning such arguments expressed in Carillion v Devonport [2005] EWCA Civ 1358.
6. The adjudicator’s decision was only temporarily binding. The defendants remained free to bring proceedings seeking repayment or damages if the claimant ultimately had no substantive entitlement.