Appearing for the claimant Mr and Mrs McDonald, Mathias Cheung was successful in an application for judgment in default in what Mrs Justice Jefford described as “a rather unusual case”.
The application was made by the claimants after a Defence had been filed, albeit out of time. Despite conflicting dicta at the High Court level as to the proper scope of CPR Part 12, Mrs Justice Jefford entered judgment in default, noting that although this could not be done administratively in these circumstances, the claimants were entitled to make a Part 23 application under Part 12 on the basis that the reference to “Defence” in CPR r.12.3(1) was to a Defence served within the time permitted by the CPR.
While judgment was entered in default for the principal sum in total, Mrs Justice Jefford was concerned by the defendant’s absence at the hearing and a number of inadequacies in the Particulars of Claim, such that a stay of execution was given for a period of 28 days within which the defendant may make an application to set aside and, if necessary, for any further stay of execution.
At pains to point out that Mathias Cheung had no part in the drafting of the Particulars of Claim of which Mrs Justice Jefford was somewhat critical, Mrs Justice Jefford said she proposed to draw up the order and include the observations made in the course of her judgment. which is essence were that the claimants’ claim appears in a number of respects to be overstated; that the defendant’s defence appears to intend to put the claimants to proof; and that the defendant may, within the period of the stay of execution, make an application to set aside the default judgment.
Mathias Cheung instructed by DWF LLP for the Claimants
To view the full judgment click here.
19 March 2018