Setting aside a Judgement in Default

A client of ours was facing a Judgement in Default worth well over a million pounds, having taken advice from a family member who told her she didn’t need to take any action. However, despite missing multiple Court deadlines and waiting until a judgement in default had been entered against her to instruct legal advice, our Litigation Solicitors managed to successfully set aside the Court Order and even prevent our client from having to pay the claimant’s legal costs.

Our client, along with her brother and sister-in-law, was a defendant in an estate dispute brought by a relative and executor of the deceased’s estate. The claimant had issued a claim worth over one million pounds against the defendants on the basis that our client’s brother had misappropriated a significant amount of money from the deceased before the deceased had died.

Our client had been advised by a family member that she did not need to take any action and the claimant was only including her as a defendant in their claim to put more pressure onto our client’s brother to pay back the monies unlawfully taken from the estate. As someone unfamiliar with the UK Court process, our client took this advice and paid little attention to the Court documents which arrived at her property.

However, our client later discovered that the claimant intended to make the claim against her, and that she should have submitted a Witness statement to the Court within 14 days of receiving the Particulars of Claim from the Court. She had long since missed this deadline and had a judgement in default entered against her, which would have disastrous consequences if successful.

If a civil claim is made against a defendant, the claimant will send the form to the Court who will then forward it on to the defendant. If the defendant does not reply with acknowledgement they have received the claim form within 14 days, the Court will make a Judgement in Default – this means the defendant will need to pay the full amount that the claimant has claimed for, regardless of any flaws in the claimant’s case.

Even if the defendant does respond to the claim form, they will still need to file a defence within the Court within 28 days of receiving the consent order. If they don’t, the Court will file a Judgement in Default against them.

As per the test applied in Denton v TH White Limited [2014], it is possible to apply to the Court for Relief from Sanctions, which will mean that if a claimant or defendant has not followed a Civil Procedure Rule, their case will not be affected by their non-compliance. The Court may grant Relief from Sanctions if:

1. The non-compliance is not particularly significant or serious;
2. If the non-compliance is significant, there are good reasons why the relevant rule was not followed; and
3. Ultimately, whether the documents are important to help ensure the Court reaches a Just decision and that it would be unjust to discredit them due to non-compliance.

We successfully applied for Relief from Sanctions on behalf of our client on the basis that there were good reasons that the Witness Statement was submitted after the deadline and that the evidence contained in the Witness Statement were too important to be ignored.

As per section 3.4 of the Civil Procedure Rules 1998, it is also possible to apply to the Court to strike out a claim (stop the claim from proceeding) if:

1. There are no reasonable grounds on which the claim could be brought or defended;
2. To allow the claim or defence to be brought would be an abuse of the Court’s power or otherwise prevent a just resolution; or
3. If a Civil Procedure Rule for bringing the claim or defence has not been followed.

Our litigation solicitors then liaised with the claimant’s solicitors and demonstrated that the claimant lacked insufficient grounds on which to bring the claim against our client on the basis that our client had not misappropriated any property from the deceased, nor had any involvement in her brother’s misappropriation. The claimant then agreed to set aside the claim – as a result, our client did not have to pay any compensation nor the claimant’s legal costs.

The case against our client was ill-founded and had little chance of success from the outset – yet if our client had not sought legal advice in time, the Judgement in Default would likely have been accepted and resulted in her having to pay over one million pounds. Had our client instructed us sooner, the case could have concluded much more quickly and our client would have had to pay far less in legal costs.

This case study illustrates the importance of instructing a qualified solicitor as soon as you are aware Court proceedings are likely to take place, rather than relying on the advice of unqualified friends and family. Delays in seeking legal advice can lead to having to pay far more than necessary in legal costs and, as happens in many unfortunate cases, rule out any possibility of successfully defending a claim. The longer you ignore a legal dispute, the harder it will be to resolve favourably.

Even if you have already missed an important deadline, that does not mean it isn’t worth instructing legal advice. As this case study demonstrates, it may still be possible to provide an effective defence and avoid catastrophic consequences.

Whether you’re facing a judgement in default or any other sort of legal action, our experienced litigation solicitors will do everything possible to ensure your claim or defence succeeds. Deciding to take legal action may be intimidating, but instructing our litigation team as soon as possible can mean the difference between your case’s success or failure.

To book an appointment with one of our Litigation Solicitors, please call 020 8840 6640 or email solicitor@starckuberoi.co.uk. Our offices are located in Brentford, Ealing, Richmond, London Belgravia and Canterbury, all within easy reach by public transport. Our partner, Raminder Uberoi, can also provide a Notary Public service at any of our London offices.