Clancy v Ministry of Defence

Default judgment cannot be entered where an acknowledgment of service has been filed by the date the application is considered, even if it was filed late. Where the failure to respond was caused by a credible administrative or communication error, relief from sanctions may be granted. Relief may also be justified by the circumstances as a whole, including the apparent vulnerability of the claim to a plea of res judicata and a limitation defence. The court may extend the period for serving a defence while directing the defendant to explain an apparent failure to implement an earlier tribunal decision.

The claimant applied for default judgment against the Ministry of Defence. The Ministry applied for relief against sanctions after filing an acknowledgment of service late. The court considered the reason for the delay, the apparent merits and vulnerability of the claim, possible res judicata and limitation defences, costs, and the period for serving a defence.

1. Default judgment refused. Because an acknowledgment of service had been filed by the date on which the application was considered, the court could not enter default judgment, notwithstanding the lateness of the filing.
2. Relief from sanctions granted. The failure to respond was a serious breach, but there was a good reason: the proceedings had apparently not reached the Government Legal Department because of a mail-screening or communication error. That justified relief.
3. Alternatively, relief would have been granted under the circumstances of the case as a whole. The claim appeared vulnerable to being struck out because it was at least the fourth claim of the same type against the defendant. The defendant appeared to have a res judicata defence, since the issue had apparently already been decided. A limitation defence also appeared available because the claimant had known of the diagnosis since 2012, while the applicable three-year period had been substantially exceeded.
4. The time for the defendant to serve its defence was extended. Within that period, the defendant was directed to provide a full explanation for the apparent failure to implement an Upper Tribunal decision backdating the claimant’s PTSD pension payments to 2007.
5. The defendant was ordered to pay the claimant’s costs of the application, subject to detailed assessment because the claimant was a litigant in person and had not provided a costs schedule.