A recent High Court decision,1 which arose as an appeal from a circuit court ruling, has confirmed that a regular judgment obtained in default of defence should not be set aside in circumstances where the party which obtained that judgment has complied with every procedural rule and extended every professional courtesy to its opponent. The court had to consider whether to set aside a default judgment obtained by the plaintiff where the defendant's insurer, having permitted the default judgment to be obtained, wanted to be given the opportunity of a full hearing of the defence in the proceedings.
The case commenced as circuit court proceedings in which the plaintiff sought damages for injuries he claimed to have suffered on various dates in 2010 and 2011 during the course of his employment with the defendant. Various communications passed between his solicitors and the in-house solicitors at the defendant's insurer, which ultimately entered an appearance in the proceedings on behalf of the defendant in August 2012. In November 2012, and again in January 2013, the plaintiff requested the defence. In circumstances where the delay in delivering the defence constituted a breach of the circuit court rules, the plaintiff issued a motion for judgment in default of defence. The motion was disposed of on a consent basis and, by order of the court, the period for delivery of the defence was extended by three further weeks.
However, the defence was still not forthcoming, even after three separate letters subsequent to that motion date. The plaintiff issued a second motion for judgment in default of defence which was served on the insurer. By that point, the failure to deliver the defence was not only a breach of the circuit court rules, but also a breach of the order made in respect of the prior motion in terms of delivery of the defence.
Notwithstanding that it was accepted that the second motion was served on the insurers, the relevant papers were lost within that organisation. On the return date for the motion, the court was satisfied that the papers had been duly served and ordered that judgment in default of defence be given against the defendant. The defendant's insurer subsequently applied to have the default judgment set aside.
Judge Barrett noted that the jurisdiction to set aside a regular judgment obtained in default of defence derived from Evans v Bartlam, where Lord Atkins observed that:
"Unless and until...