Richmond & Anor v Burch & Ors

A Master lacks jurisdiction to make an order relating to an injunction unless the relevant exception in the allocation Practice Direction applies. Setting aside a default judgment which made an injunction final may discharge or vary that injunction, even if the order purports only to set aside the judgment.

Under CPR rule 13.3, the court should first decide whether the threshold requirements are met. It must then exercise its discretion justly, considering promptness, the reasons for delay, prejudice, the strength of the proposed defence and the consequences of refusing relief. Delay is important but not automatically decisive.

The claimants appealed against an order of Master Moncaster dated 22 August 2005. The Master had set aside a regular default judgment entered by Lewison J, declined to progress the assessment of damages, and made costs orders.

The default judgment had declared rights concerning the Regency Court property, ordered damages to be assessed, and made final an injunction previously granted by Patten J. The appeal concerned the Master’s jurisdiction, whether the default judgment should have been set aside, whether relief should have been conditional on payment into court, and the costs consequences.

1. Jurisdiction. The Master’s order was an order relating to an injunction within paragraph 2.2 of the Practice Direction. Setting aside Lewison J’s order either discharged the final injunction or changed it from permanent to interim. Paragraph 2.4 permitted a Master to vary or discharge an injunction only with the consent of all parties, which was absent. The Master therefore lacked jurisdiction to make the order. The restriction concerning declarations did not otherwise prevent him from setting aside an order containing a declaration.
2. Set-aside application. The appeal was treated as a rehearing of the application. The defendants met the threshold in CPR rule 13.3(1)(b), because there were good reasons to set aside the judgment. Their proposed defence was weak and its prospects were remote, but not wholly fanciful. The default judgment also left unresolved the beneficial ownership and terms of the licence concerning the Regency Court property, and created substantial difficulties concerning causation and the facts to be assumed in assessing damages.
3. Discretion. Promptness under rule 13.3(2) was a significant factor. The defendants’ delay, including delay after learning that the claimants intended to proceed, was unsatisfactory. It was not decisive because the earlier delay was substantially explained, the claimants identified no real prejudice caused by it, and refusal of relief would produce serious practical difficulties. The better course was to permit the defendants to defend the action in the Central London County Court.
4. No payment into court was required as a condition of relief. The likely recovery could not be predicted confidently, and a modest payment would risk further delay without serving a worthwhile purpose.
5. Costs and order. The appeal was allowed to the extent necessary to vary the costs orders. The defendants were to pay the claimants’ costs of the default judgment application, the assessment application and the set-aside application. The injunction prohibiting the acts restrained by Patten J and subsequently by Lewison J was to continue, with the further conduct of the action in the Central London County Court.

• High Court (Chancery Division): Appeal from Master Moncaster’s order dated 22 August 2005. The appeal was allowed in part, principally to vary the costs orders, and the action was directed to continue in the Central London County Court.