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Re: Taking on Iceland
The Court of Appeal in several instances has confirmed that an application to set aside default judgment is in effect an application for relief from sanctions. That is to say, the starting point for the court is to determine the grounds relied upon under CPR 13 which here they are seeking to rely on 13.3 on the basis of reasonable prospects of successfully defending the claim which is at the courts discretion. In particular, Lord Justice Vos in Gentry v Miller and Another (Practice Note) [2016] EWCA 141 said the following:
For background, the quote LJ Vos was referring to in Regione Piemonte v Dexia was as follows:
If the court finds that there are reasonable prospects of success then they would need to apply the relief from sanctions Denton criteria. The criteria is:
(a) the seriousness and significance of the default
(b) Was there any good reason for the breach
(c) The court is to consider all of the circumstances of the case as to whether relief should be granted
My view is that there is no reasonable prospects of successfully defending the claim. The Tesco had contracted with the recovery company to get remove the van whom acted on Tesco's instructions that recovery company and therefore Tesco is liable for the damage caused by the recovery company. If Tesco suffers losses as a result of the claim then it is up to them to seek recovery of those losses against the recovery company, not you. Also they could have joined the recovery company as a party to the claim had they acknowledged it.
As for the Denton Criteria, there is a case that is similar in respect of the current situation. In Hockley v. North Lincolnshire & Goole NHS Foundation Trust 2014, the Defendant actually filed an acknowledgment of service 13 days after the deadline but the claimant obtained a default judgment. The District Judge granted relief from sanctions 'for fairness and justice' but this was appealed to the High Court. The High Court allowed the appeal and refused relief from sanctions applying for the following reasons:
(a) the seriousness and significance of the default
The failure to acknowledge the claim and file a defence was serious and the consequences of not doing so must have been obvious.
(b) Was there any good reason for the breach
There was incompetence on the Defendant's part, no good reason for the breach.
(c) The court is to consider all of the circumstances of the case as to whether relief should be granted
The application to set aside was promptly made, however the Defendant did not file any defence in support or any evidence which indicated a reasonable prospect of successfully defending the claim. For those reasons, relief from sanctions were refused and the judgment in default remained.
Obviously you've uploaded the witness statement from Plexus which suggests they are relying on the prospects of successfully defending the claim, did Plexus file a draft defence at all or just the witness statement (I also note you said they asked for leave to file a defence)? Also have they claimed costs in the set aside application? There is the risk of costs being awarded against you if it is successfully set aside but in this case you could argue otherwise because it is the Defendant's own fault for not acknowledging or filing a defence. If you wanted to oppose the application you could send a Witness Statement (your fathers name) setting out your reasons why the set aside should be opposed and that (perhaps) this particular application is not appropriate for a decision to be made without a hearing and you could argue that a hearing for this application should be made instead.
Although it doesn't seem clear who's fault it is whether Tesco or Plexus as to the acknowledgment but it is admitted in their claim that Tesco received the claim on 30 May so at the very least it was incompetence by either party (either Tesco failing to acknowledge or by Plexus failing to act promptly in acknowledging the claim if it was sent onto them).
Whichever route your father is entirely up to him but it is a decision he will have to make himself after taking everything into account. I have experience of dealing with Plexus and my opinion is they are not at all professional and have been known to be slow in doing things however there's not enough information to suggest it in this case although they are trying to pull a fast one by having it heard without a hearing. I am sure there is case law previously to suggest that an application for relief from sanctions should always require a hearing because the of the factual nature of each individual case to determine whether relief should be granted - If I can find a case on it I will let you know.
Originally posted by friendlyfire
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23. It is useful to start by enunciating the applicable principles. Both sides accepted that it was now established that the tests in Denton's case [2014] 1 WLR 3926 were to be applied to applications under CPR r 13.3 : see paras 39–40 of the judgment of Christopher Clarke LJ in Regione Piemonte v Dexia Crediop SpA [2014] EWCA Civ 1298 , with whom Jackson and Lewison LJJ agreed. It seems to me equally clear that the same tests are relevant to an application to set aside a judgment or order under CPR r 39.3 .
24 The first questions that arise, however, in dealing with an application to set aside a judgment under CPR r 13.3 are the express requirements of that rule, namely whether the defendant has a real prospect of successfully defending the claim or whether there is some other reason why the judgment should be set aside, taking into account whether the person seeking to set aside the judgment made an application to do so promptly. Since the application is one for relief from sanctions, the tests in Denton's case then come into play. The first test as to whether there was a serious or significant breach applies, not to the delay after the judgment was entered, but to the default in serving an acknowledgement that gave rise to the sanction of a default judgment in the first place. The second and third tests then follow, but the question of promptness in making the application arises both in considering the requirements of CPR r 13.3(2) and in considering all the circumstances under the third stage in Denton's case.
24 The first questions that arise, however, in dealing with an application to set aside a judgment under CPR r 13.3 are the express requirements of that rule, namely whether the defendant has a real prospect of successfully defending the claim or whether there is some other reason why the judgment should be set aside, taking into account whether the person seeking to set aside the judgment made an application to do so promptly. Since the application is one for relief from sanctions, the tests in Denton's case then come into play. The first test as to whether there was a serious or significant breach applies, not to the delay after the judgment was entered, but to the default in serving an acknowledgement that gave rise to the sanction of a default judgment in the first place. The second and third tests then follow, but the question of promptness in making the application arises both in considering the requirements of CPR r 13.3(2) and in considering all the circumstances under the third stage in Denton's case.
38. A question arose at the hearing of the appeal as to the extent to which the principles laid down in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 applied to applications to set aside a default judgement. Since the hearing this Court has given judgment in Denton v TH White Ltd [2014] EWCA Civ 906 and the parties have made written submissions on it. Neither case was concerned with applications to set aside a judgment.
39. In essence Piedmont submits that the Mitchell / Denton principles do not apply to an application to set aside a default judgment. The majority in Denton considered that the Mitchell decision was correct to attribute a particular importance to the factors listed at CPR 3.9 (1) (a) (the need “for litigation to be conducted efficiently and at proportionate cost” ) and (b) (the need “to enforce compliance with rules, practice directions and orders” ) because the Civil Procedure Rule Committee had rejected a recommendation in the Review of Civil Litigation Costs Final Report that CPR 3.9.1 should be reworded so that 3.9.1 (b) read “the interests of justice in the particular case” . But the Final Report did not propose any amendment to CPR 13.3 so that the reasoning of the majority in Denton does not apply to it. There is thus, it is submitted, no reason to conclude that the Mitchell / Denton principles apply to an application under CPR 13.3 or that promptness under CPR 13.3 should be regarded as anything more than a factor. I disagree.
40. In my judgment the matter stands thus. CPR 13.3 requires an applicant to show that he has real prospects of a successful defence or some other good reason to set the judgement aside. If he does, the court's discretion is to be exercised in the light of all the circumstances and the overriding objective. The Court must have regard to all the factors it considers relevant of which promptness is both a mandatory and an important consideration. Since the overriding objective of the Rules is to enable the court to deal with cases justly and at proportionate cost, and since under the new CPR 1.1 (2) (f) the latter includes enforcing compliance with rules, practice directions and orders, the considerations set out in CPR 3.9 are to be taken into account: see Hussein v Birmingham City Council [2005] EWCA Civ 1570 per Chadwick LJ at [30]; Mid-East Sales v United Engineering and Trading Co (PVT) Ltd [2014] EWHC 1457 at [85]. So also is the approach to CPR 3.9 in Mitchell / Denton . The fact that the Court's judgment in Denton was reinforced by the fact that CPR 3.9 was not reworded in the manner proposed by Jackson LJ does not detract from the relevance of CPR 3.9 , and what was said about it in Denton , to applications under CPR 13 .
39. In essence Piedmont submits that the Mitchell / Denton principles do not apply to an application to set aside a default judgment. The majority in Denton considered that the Mitchell decision was correct to attribute a particular importance to the factors listed at CPR 3.9 (1) (a) (the need “for litigation to be conducted efficiently and at proportionate cost” ) and (b) (the need “to enforce compliance with rules, practice directions and orders” ) because the Civil Procedure Rule Committee had rejected a recommendation in the Review of Civil Litigation Costs Final Report that CPR 3.9.1 should be reworded so that 3.9.1 (b) read “the interests of justice in the particular case” . But the Final Report did not propose any amendment to CPR 13.3 so that the reasoning of the majority in Denton does not apply to it. There is thus, it is submitted, no reason to conclude that the Mitchell / Denton principles apply to an application under CPR 13.3 or that promptness under CPR 13.3 should be regarded as anything more than a factor. I disagree.
40. In my judgment the matter stands thus. CPR 13.3 requires an applicant to show that he has real prospects of a successful defence or some other good reason to set the judgement aside. If he does, the court's discretion is to be exercised in the light of all the circumstances and the overriding objective. The Court must have regard to all the factors it considers relevant of which promptness is both a mandatory and an important consideration. Since the overriding objective of the Rules is to enable the court to deal with cases justly and at proportionate cost, and since under the new CPR 1.1 (2) (f) the latter includes enforcing compliance with rules, practice directions and orders, the considerations set out in CPR 3.9 are to be taken into account: see Hussein v Birmingham City Council [2005] EWCA Civ 1570 per Chadwick LJ at [30]; Mid-East Sales v United Engineering and Trading Co (PVT) Ltd [2014] EWHC 1457 at [85]. So also is the approach to CPR 3.9 in Mitchell / Denton . The fact that the Court's judgment in Denton was reinforced by the fact that CPR 3.9 was not reworded in the manner proposed by Jackson LJ does not detract from the relevance of CPR 3.9 , and what was said about it in Denton , to applications under CPR 13 .
(a) the seriousness and significance of the default
(b) Was there any good reason for the breach
(c) The court is to consider all of the circumstances of the case as to whether relief should be granted
My view is that there is no reasonable prospects of successfully defending the claim. The Tesco had contracted with the recovery company to get remove the van whom acted on Tesco's instructions that recovery company and therefore Tesco is liable for the damage caused by the recovery company. If Tesco suffers losses as a result of the claim then it is up to them to seek recovery of those losses against the recovery company, not you. Also they could have joined the recovery company as a party to the claim had they acknowledged it.
As for the Denton Criteria, there is a case that is similar in respect of the current situation. In Hockley v. North Lincolnshire & Goole NHS Foundation Trust 2014, the Defendant actually filed an acknowledgment of service 13 days after the deadline but the claimant obtained a default judgment. The District Judge granted relief from sanctions 'for fairness and justice' but this was appealed to the High Court. The High Court allowed the appeal and refused relief from sanctions applying for the following reasons:
(a) the seriousness and significance of the default
The failure to acknowledge the claim and file a defence was serious and the consequences of not doing so must have been obvious.
(b) Was there any good reason for the breach
There was incompetence on the Defendant's part, no good reason for the breach.
(c) The court is to consider all of the circumstances of the case as to whether relief should be granted
The application to set aside was promptly made, however the Defendant did not file any defence in support or any evidence which indicated a reasonable prospect of successfully defending the claim. For those reasons, relief from sanctions were refused and the judgment in default remained.
Obviously you've uploaded the witness statement from Plexus which suggests they are relying on the prospects of successfully defending the claim, did Plexus file a draft defence at all or just the witness statement (I also note you said they asked for leave to file a defence)? Also have they claimed costs in the set aside application? There is the risk of costs being awarded against you if it is successfully set aside but in this case you could argue otherwise because it is the Defendant's own fault for not acknowledging or filing a defence. If you wanted to oppose the application you could send a Witness Statement (your fathers name) setting out your reasons why the set aside should be opposed and that (perhaps) this particular application is not appropriate for a decision to be made without a hearing and you could argue that a hearing for this application should be made instead.
Although it doesn't seem clear who's fault it is whether Tesco or Plexus as to the acknowledgment but it is admitted in their claim that Tesco received the claim on 30 May so at the very least it was incompetence by either party (either Tesco failing to acknowledge or by Plexus failing to act promptly in acknowledging the claim if it was sent onto them).
Whichever route your father is entirely up to him but it is a decision he will have to make himself after taking everything into account. I have experience of dealing with Plexus and my opinion is they are not at all professional and have been known to be slow in doing things however there's not enough information to suggest it in this case although they are trying to pull a fast one by having it heard without a hearing. I am sure there is case law previously to suggest that an application for relief from sanctions should always require a hearing because the of the factual nature of each individual case to determine whether relief should be granted - If I can find a case on it I will let you know.
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