A recent Court of Appeal case, FXF - v - (1) English Karate Federation Limited (2) David Jonathan Donovan (sued in his representative capacity on behalf of The Ishinryu Karate Association an unincorporated association) [2023] EWCA Civ 891, has clarified the position regarding applications for setting aside default judgements.
The defendant in the case applied to set aside default judgement after they had failed to file their defence in time. The application was based on the principles set out at part 13.3 of the Civil Procedure Rules (CPR) – being mainly based on merits of a defence and whether the defendant has acted promptly in applying to the court.
The Master set aside the judgement based on CPR 13.3 but the claimant appealed on the basis that the defendant should have also applied for relief from sanctions, in line with Denton v. TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926.
A relief from sanctions application is required when a party to litigation has failed to comply with a rule, practice direction or court order, under CPR 3.8. Denton laid out a three stage test for relief from sanctions, being:
The Master in this case had referred to Denton when considering CPR 13.3 and used his discretion so the appeal was dismissed. However, the Court of Appeal held that the Denton test does apply to an application to set aside judgement and previous authorities stating the test did not apply were overruled.
Therefore, a defendant wishing to set aside a default judgement would need to address CPR 13.3 and the Denton test.
If you are considering an application to set aside judgement or are not sure as to whether an application would be successful, contact the Dispute Resolution Team who will be able to advise you.
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