It is time to discuss “promptness”

Promptness, in terms of its general meaning in civil litigation, has to be contrasted with applications to set aside default judgment pursuant to CPR Part 13.

In M A Lloyd & Sons Ltd v PCC International Ltd [2014] EWHC 41 (QB), the Court decided at Paragraph 20 that the proper approach to applications for relief from sanctions was guided by the Court of Appeal in Andrew Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537.

So far so good in terms of our understanding, it was another pro-Mitchell decision in the sense that it followed a strict approach..

The Paragraph from the Mitchell decision they raised in M A Lloyd, was Paragraph 40: “…It will normally be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If thi can be properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly” (my emphasis).

The Judge took issue with the 3-month delay in M A Lloyd, which was overall a claim that appeared to be lacking in procedural compliance. While not suggested in the judgment, it seems that there was a difficult lay client.

Paragraph 22 of the judgment states the delay of nearly 3 months was “serious”. Paragraph 23 states that there was no evidence of any good reason for the delay, and it was “not open to the claimant to allow weeks and weeks to pass without taking positive steps to comply with the order…”

There is no solid guidance to steer litigators in this new age of Mitchell and promptness.

So what about promptness and applications to set aside (or vary) default judgment?

Promptness has been developed in case law relevant to default judgment and must surely provide some guidance.

A lot of the guiding case law relates to not receiving a claim, and therefore not being aware of the requirement to respond. This can be largely ignored as the relevant cases address the promptness of a party in making the application once they were aware of the judgment.

In MacDonald v Thorn PLC (1999), proceedings were issued on 7 January 1999 and served on the defendant at its registered office. The defendant failed to serve its defence within the period specified under the rules and judgment in default of defence was entered in the claimants’ favour on 29 January 1999. The defendant instructed solicitors on 1 February 1999 and a notice of acting was sent to the claimants’ solicitors. The claimants’ solicitors acknowledged receipt of the notice and informed the defendant’s solicitors that judgment in default had been entered against their client. The defendant applied to have the judgment set aside on 10 February 1999. The defendant’s application was dismissed by the district judge on 16 March 1999 on the ground that there had been delay by the defendant before the issue of proceedings for which the defendant had offered no explanation. The defendant appealed and on 30 March 1999 the circuit judge also dismissed the defendant’s appeal. The defendant appealed contending, inter alia, that the judge was wrong in law in holding that unexplained, or substantially unexplained, delay before issue of the claimants’ summons was a relevant factor in deciding whether to set aside the default judgment.

At appeal, the Court was of the opinion that if the judge had reviewed the Mortgage Corporation v Sandoes (1996) decision he would have exercised his discretion on a different basis  The judge was not entitled to add together the nine-day period of delay with the pre-action delay. Accordingly, considering that the defendant had shown a triable defence (this being that the prejudice caused to the claimants was minimal and that the period of delay, even though unexplained, amounted to nine days), the court decided that justice demanded that the default judgment should be set aside. Further, there was nothing in CPR 13.3 or CPR Part 1 to suggest that reliance could be placed on a defendant’s failure to give explanation for delay in order to show that the court should exercise its discretion in a certain way. The fact of no explanation was a factor which the court might take into account.

In Nolan v Devonport (2006) the Court decided that it was not reasonable for a debtor to sit back and wait for a creditor to enforce a judgment before seeking to have that judgment set aside. An application to set aside judgment that was made merely to frustrate enforcement was an abuse of the court’s procedure and would be struck out.  In this case the Court felt that it was not reasonable for the applicant to sit back and wait for respondent to enforce the judgment before seeking to set the judgment aside. Once a person learnt of a judgment entered against them, if there was real merit in the defence available to them, it was incumbent upon them to take prompt action to have the judgment set aside. G had a duty to help the court to further the overriding objective and, especially under CPR r.1.3 , to deal with it expeditiously, even though the court had a duty to manage the application. What was significant here was that it was clear in the instant case that the real reason for seeking to set aside judgment was to frustrate enforcement.

So how much of a steer do we have on promptness?

Not much. The definition is not aided with a guide on weeks or months.

It seems to be that you need to really consider your position in advance of a likely breach, or be faster than Speedy Gonzales drafting an N244 application notice if you find yourself in breach.

If you are going to be in breach, apply a sporting analogy and get your punches in early and fast. Make an application in advance. Preferably this would be a week or 2 in advance, rather than at 3:59pm on the day you are due to breach.  Then go hell for leather on complying with the order before your application is heard.

Should you find yourself in breach then it is possible, based on M A Lloyd, that you may have a couple of weeks of leeway so long as the breach is not serious.  If you allow it to slip into months without taking any positive action to remedy the breach, then you had better check the wording of your firm’s insurance!

If you are in the period of weeks then you need to make sure you play down the extent of the breach. Failures relating to disclosure and witness evidence are likely to be penalised heavily. Where matters are out of your control to some extent, such as experts, you may be allowed relief from sanctions.

Over and out.

Legal Orange

Advertisements

2 thoughts on “It is time to discuss “promptness”

  1. Pingback: CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POSTS | Civil Litigation Brief

  2. Pingback: SURVIVING MITCHELL 11: BE PROMPT: BE VERY PROMPT | Civil Litigation Brief

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s