Pincus v Singh & Anor

When default judgment is entered following a procedural error in using a request rather than an application, the claimant is not thereby taken to have abandoned non-monetary relief. The court may address or remedy the procedural error under the Civil Procedure Rules.

An application to set aside default judgment under CPR 13.3 requires a real prospect of successfully defending the claim or another good reason. The court must also have regard to promptness. A delay of more than three months, coupled with inadequate evidence, no draft defence and apparent non-compliance with an injunction, may justify refusing relief.

The claimant, freehold owner of 21 Millicent Road, brought proceedings concerning interference with a right of access and damage to a loading platform situated on the defendants’ land. The claim sought damages and injunctive relief. An interim mandatory and prohibitory injunction was granted on 20 September 2022.

Default judgments were entered against both defendants on 15 February 2023. The claimant had used a request under CPR 12.4(1), although an application under CPR 12.4(3) was required for non-monetary relief. The defendants applied on 22 May 2023 to set aside the judgments under CPR 13.3, asserting that the works had been completed and later raising possible issues concerning loss and causation.

The issues were whether the procedural error affected the claim, whether the defendants had a real prospect of successfully defending it, and whether their application had been made promptly.

1. Procedural error. The use of a request under CPR 12.4(1), instead of an application under CPR 12.4(3), did not amount to abandonment of the claim for injunctive relief. The principle in Robins v Kordowski [2011] EWHC 1912 (QB) applied despite the different factual context. The procedural error could not determine the substantive scope of the claim.
2. Real prospect of success. Under CPR 13.3(1)(a), the defendants had to show a real prospect of successfully defending the claim. Their documents provided no proper witness evidence or draft defence. The assertion that the works had been completed was weak in light of evidence that the works had been delayed, initially defective and still criticised by the claimant’s surveyor. Even completed works would not necessarily answer the claim, which included damages and continuing injunctive relief.
3. Promptness. CPR 13.3(2) required the court to have regard to whether the application was made promptly. The delay of more than three months after entry of judgment was not prompt. Regency Rolls Limited v Carnall, CA unreported, 16 October 2000, and Hart Investments v Fidler [2006] EWHC 2857 (TCC), supported the conclusion that substantially shorter delays may be unacceptable depending on the circumstances.
4. Discretion and outcome. The defendants had repeatedly failed to comply adequately with the injunction, had not explained their case properly, and had not produced a draft defence even by the hearing. No sufficient reason existed to grant further leeway. The applications to set aside the two default judgments were refused.