Peacock v DEL Seatek India Private Ltd & Anor

An application to set aside default judgment under Civil Procedure Rules 1998, rule 13.3, requires a real prospect of successfully defending the claim and prompt action. A defence is insufficient where it is fanciful or fails to disclose a properly arguable case. A defendant that has pleaded a defence submits to the court’s jurisdiction and cannot rely on an unadvanced jurisdictional challenge. Where foreign law is relied on, its material differences from English law must be pleaded and proved. If that is not done, the court proceeds on the basis that there is no material difference.

The claimant, a United Kingdom national, brought a personal injury claim arising from a saturation-diving accident offshore India against his employer, Del Seatek India Private Ltd, and Hyundai Heavy Industries Company Ltd. Default judgment was entered against the first defendant after it failed to acknowledge service. The first defendant applied to set that judgment aside, relying on a proposed defence, Indian law and an alleged jurisdictional challenge.

The first defendant did not attend the hearing. The court therefore considered whether the application satisfied the requirements of CPR 13.3, including the real-prospect and promptness requirements.

1. The application was dismissed. The first defendant had notice of the hearing but chose not to attend. Its application and proposed defence did not satisfy CPR 13.3(1).
2. The first defendant had pleaded a defence and thereby submitted to the jurisdiction of the court. Although it referred to a jurisdictional challenge, it had not made such a challenge in accordance with CPR Part 11.
3. The proposed defence did not disclose a real prospect of success. The first defendant appeared to accept that it employed the claimant. Its reliance on Indian law could succeed only if the relevant differences between Indian and English law were properly pleaded and proved. No such differences had been properly pleaded. The court would therefore proceed on the basis that there were no material differences, applying the principle identified in Bumper Development Corporation v Commissioner of Police for the Metropolis [1991] 1 WLR 1362 (CA), James Rhodes v OPO & Anor. [2014] EWCA Civ 1277 and [2015] UKSC 32, and Brownlie v Four Seasons Holdings Inc [2015] EWCA Civ 665.
4. The contention that the claimant was wholly responsible for ensuring his own safety during the saturation dive was fanciful and most unlikely to succeed.
5. The application was nevertheless made promptly for CPR 13.3(2). The relevant period ran from the default judgment, dated 26 April 2016, to the application on 12 May 2016, rather than from the commencement of the proceedings.