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Posted by Lynne on June 8th 2017
(Blog, Business, Commercial Litigation, Commercial Property, commercial property and real estate, commercial property and real estate services, Contract Law, Debt Recovery, dispute resolution, Employment, Insolvency, IP, Sports and Media, Litigation, Media Coverage, medical negligence, Professional Negligence)

In Redbourne Group Ltd v Fairgate Development Ltd (see here for judgment), the High Court adopted a strict approach against a Defendant who failed to file the defence in time and subsequently applied to set aside the default judgment and for relief from sanctions.

Soon after the Jackson Reforms were implemented and particularly after the infamous Mitchel case[1], the Law Society and others became concerned that the Courts were adopting an unduly harsh approach in applications for relief from sanctions, following breaches of the Civil Procedure Rules and Court orders.  Such an approach it was feared, would deprive litigants of proper adjudication and would encourage a belligerent approach from the other party.  The Bar Council for example stated that:

Mitchell has taken the civility out of civil litigation

There was some relief (no pun intended) following the Denton judgment,[2] which provided for a three-stage test; namely is the breach serious, why did it occur and finally a consideration of all of the circumstances to consider whether or not it is just to grant relief.  The third stage was viewed as a fail-safe where there had been a relatively serious error without a sound explanation.

The above judgment potentially indicates a return to the stricter Mitchel approach and this is how it has been reported, see here.  The judgment suggests at paragraph 84, that relief would not have been granted, even if the Defendant had established a real prospect of defending the claim because of the inadequate explanations provided for the failure to file a defence on time.

However, these comments are obiter dictum as the judge ruled that the Defendant had failed to establish a real prospect of defending the claim; it is one thing to decide in the abstract that serious procedural failings alone should deprive a party of proper adjudication, it is quite another to decide this when presented with a cogent and persuasive defence.

[1] See [2013] EWCA Civ 1537

[2] See [2014] EWCA Civ 906

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