Almond & Ors v Medgolf Properties Ltd & Ors (1)

Entitlement to judgment in default of acknowledgment of service is assessed at the date when the application is made. A defendant cannot defeat that entitlement by subsequently providing or filing an acknowledgment of service out of time. Filing is essential; merely handing a copy to the claimant at the hearing does not suffice. The court may refuse an adjournment to seek an extension of time where the delay is unexplained and the procedural history provides no proper basis for indulgence.

Claimants in two related proceedings applied for judgment in default against certain defendants. The proceedings had been served out of the jurisdiction and the relevant acknowledgments of service were overdue. Two defendants appeared at the hearing and purported to provide an acknowledgment of service, but it had not been filed at court. They argued that CPR 12.3.1 prevented default judgment because an acknowledgment had been provided before judgment was pronounced, and sought an adjournment to apply for an extension of time.

1. Default judgment. The application was determined by reference to the position when the application for default judgment was made. At that time, the requirements of CPR 12.3.1 were satisfied. A defendant cannot defeat the claimant’s entitlement by serving or filing an acknowledgment of service after the application notice and before judgment is pronounced.
2. The court adopted the first ground given by Popplewell J in Taylor v Giovani Developers Ltd [2015] EWHC 328 (Comm). It was unnecessary to decide whether an acknowledgment of service filed out of time is invalid for the purposes of rule 12.3. The judge nevertheless expressed doubt about entering default judgment where a late acknowledgment had been filed before the application notice.
3. In any event, the acknowledgment had not been filed. Providing a copy to the claimants at the hearing could not satisfy the filing requirement. The defendants therefore could not resist default judgment on that basis.
4. The application for an adjournment was dismissed. The delay was unexplained, no adequate reason for indulgence was shown, and the solicitors had known of the hearing for eleven days without taking the necessary steps.
5. Costs were not summarily assessed. The claimants had fourteen days to make submissions, followed by seven days for the defendants to comment, after which costs would be determined on the papers.