Mixed messages from the Bench as to whether Mitchell applies to default judgments?


The first big decision in this area worth noting


Silber J ruled in Samara v MBI & Partners UK [2014] EWHC 563 (QB) that Mitchell principles apply to an application under CPR r.13.3, to set aside a default judgment.


There was an acknowledgment to the absence of this situation being covered during the lectures in the implementation programme, which surprisingly did not deal specifically with the approach under CPR 13.3.


In Samara the Court took the view that the new Jackson regime had wide ranging application to all rules in the CPR.


Consequently, with default judgment, the defaulting party is obliged to apply promptly and the application is one for relief.


With Jackson applied to the case, the Court found that the application was not prompt, nor was the delay trivial and the failure did not have a good reason. 


The “get out of jail free card” on this occasion for interpreting this judgment is that Silber J stated the application for relief would have failed under the old [pre-Jackson] regime in any event.


Then a costs judge came along and threw a spanner in the works…


In Brett v Colchester Hospital University NHS Foundation Trust [2014] EWHC B17 (Costs) Master O’Hare in doubted the application of Mitchell and ruled that it does not apply when an application is made to set aside a default costs certificate.


A distinction was drawn between CPR r 3.9 and the default judgment rules.


Master O’Hare identified that the Court should look at whether there s a good case for continuing. He went on to say “That difference in wording is relevant because a failure to serve a document on time which leads to a default judgment or a default costs certificate ordinarily has no effect on other court users except the parties themselves”.


Without boring you with the details of the case, it came down to notice of change and service of costs proceedings. An argument prevailed over use of email and postal service. It was all very 20th century in its approach to technology. Either way, take away from this that you will have to address this decision if applying for or opposing an application to set aside default judgment.


The basic argument to make when dismissing the relevance of this decision will be that it is a costs judge’s decision and they hold little weight in the big picture of heavy litigation. The alternative view is that limited guidance has been handed down so far in this important area, and that the court must surely consider it persuasive authority.   


My view?


I think Brett is wrong. Silber J had it right when handing down judgment in Samara.



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