The court below had refused an application to set aside a judgment obtained irregularly.
Held: The appeal succeeded. A Statement of Claim indorsed on the Writ is a pleading.
Lopes LJ held: ‘the judgment entered by the plaintiff was premature and irregular . . without any right whatsoever. To obtain that judgment was a wrongful act, not an act done within any of the rules. The defendant is therefore entitled ex debito justitiae to have it set aside.’
Fry LJ said: ‘the judgment entered . . was premature and irregular. In such a case the right of the defendant to have the judgment set aside is plain and clear. The Court acts upon an obligation; the order to set aside judgment is made ex debito justitiae, and there are good grounds why that should be so, because the entry of judgment is a serious matter, leading to the issue of execution, and possibly to an action of trespass. We were pressed with the argument that Order LXX., r.1, gives discretion to the Court which applies here. Rule 1 provides that ‘non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or a judge shall think fit.’ But in the present case we are not concerned with an instance of non-compliance with a rule, nor with an irregularity in acting under any rule. The irregular entry of judgment was made independently of any of the rules; the plaintiff had no right to obtain any judgment at all. I do not think, therefore, that the case comes within r.1, and we must consider what is the right practice without reference to that rule. There is a strong distinction between setting aside a judgment for irregularity, in which case the Court has no discretion to refuse to set it aside, and setting it aside where the judgment, though regular, has been obtained through some through some slip or error on the part of the defendant, in which case the Court has a discretion to impose terms as a condition of granting the defendant relief.’
and ‘although the Court is bound to set aside an irregular judgment ex debito justitiae, it has always exercised a discretion as to costs.’
Judges:
Fry, Lopes LJJ
Citations:
(1888) 20 QBD 764, 58 LT 671, 57 LJQB 287, 4 TLR 439
Jurisdiction:
England and Wales
Cited by:
Cited – Charlesworth and Others v Focusmulti Ltd and Others CA 15-Mar-1993
Judgment had been entered by the plaintiff in default of defence, but before the time limit for filing a defence had expired. Such a judgment was fatally flawed, and could not be cured. The judgment had to be set aside without any consideration of . .
Cited – Faircharm Investments Ltd v Citibank International Plc CA 6-Feb-1998
An irregular judgment had been entered. A claim was made after the proceeds of a life policy secured under a mortgage had been wrongly paid out after the mortgage was redeemed by a third party.
Held: The appeal was dismissed. The so-called . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 04 May 2022; Ref: scu.472099
