References: [1986] 2 Lloyds Rep 221
Coram: Sir Roger Ormrod
Ratio: The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that they had given security, applied initially to the judge and then on appeal to the Court of Appeal, unsuccessfully at both hearings, to set aside the judgment and for leave to defend.
Held: When comparing the test to be met by a defendant which required there to be ‘an arguable case’, with the standard laid down in Evans in respect of a defendant seeking to set aside a regular judgment signed in default, the Evans case clearly contemplated that a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. It must be more than merely arguable.
Sir Roger Ormrod: ‘. . . a defendant who is asking the Court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. (In Evans v. Bartlam there was an obvious defence under the Gaming Act and in Vann v. Awford a reasonable prospect of reducing the quantum of the claim.) Indeed it would be surprising if the standard required for obtaining leave to defend (which has only to displace the plaintiff’s assertion that there is no defence) were the same as that required to displace a regular judgment of the Court and with it the rights acquired by the plaintiff. In our opinion, therefore, to arrive at a reasoned assessment of the justice of the case the Court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The ‘arguable’ defence must carry some degree of conviction.’
Statutes: Rules of the Supreme Court Order 14
This case is cited by:
- Cited – E D and F Man Liquid Products Ltd v Patel and Another CA (Bailii, [2003] EWCA Civ 472, Times 18-Apr-03, Gazette 19-Jun-03, [2003] CP Rep 51, [2003] CPLR 384, [2003] CPLR 349, [2003] QB 1556, [2003] 3 WLR 667)
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . . - Cited – Anglo American Investments Limited v Jeffrey H Barber CA ([1998] EWCA Civ 1258)
The defendant had borrowed money from the plaintiff, and a director made an oral promiose not to seek repayment until the defendant could afford it. The claimant went into liquidation.
Held: The defence was incredible and had no prospect of . . - Cited – Dipcon Engineering Services Ltd v Bowen and Another PC (Bailii, [2004] UKPC 18, PC, 64 WIR 117)
PC Grenada ‘Whilst Saudi Eagle is clear authority, if authority were needed, for the proposition that an application to set aside a default judgment can be made (and, if refused, can then be appealed) . . - Cited – Strachan v The Gleaner Company Limited and Stokes PC (Bailii, [2005] UKPC 33, PC, PC, [2005] 1 WLR 3204)
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . . - Cited – Indian Herbs (Uk) Ltd v Hadley and Ottoway Limited; Richard Townsend; Indian Herbs Research and Supply (Pvt) Ltd; Indian Herbs (Europe) Limited and Graham Wheeler CA (Bailii, [1999] EWCA Civ 627)
. . - Cited – Bryan, Astley, Taylor v Barton and Frank Barton Services Limited CA ([1997] EWCA Civ 987)
The defendant sought leave to appeal against an order disallowing his use of a stretch of the River Wye for his boat which he wanted to use as a floating restaurant. The claimants were an angling association who claimed that his use infringed a deed . . - Cited – Collier v P and M J Wright (Holdings) Ltd CA (Bailii, [2007] EWCA Civ 1329, [2007] NPC 136, [2008] 1 WLR 643, [2007] BPIR 1452)
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . . - Cited – Craig Osborne v Patricia Leighton CA (Bailii, [1999] EWCA Civ 1314)
The defendant being late in filing a defence to the claim for defamation, the claimant entered judgment in default. The defendant sought to have that set aside, and now sought her (substantial) costs.
Held: The entry of judgment had been at . .
(This list may be incomplete)
Jurisdiction: England and Wales
Last Update: 08-Feb-17
Ref: 180850
