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A case of the application of Mitchell/Denton to setting aside a default judgment.

Christopher Clarke L.J. said,

“The effect of Mitchell
38. A question arose at the hearing of the appeal as to the extent to which the principles laid down in Mitchell..[and Denton] applied to applications to set aside a default judgement…
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…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.”

Edited for ease of reading.

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