Dismissal of a late application to set aside a default judgment under CPR 3.6 after considering the impact of the COVID-19 pandemic.
Summary
The High Court considered relief from sanctions for failure to comply with the requirements under CPR 3.6 and whether the impact of the coronavirus pandemic constituted a good reason for breach of a court order.
Background
Daly (D) made a claim for breach of contract against Ryan (R). R filed a defence but failed to comply with a subsequent unless order. D successfully applied under the Civil Procedure Rules - CPR 3.5 to have the defence struck out and judgment entered.
R applied to set aside the judgment under CPR 3.6. An application pursuant to CPR 3.6 must be made within 14 days of judgment being served on the party making the application. On receipt of the application the court found that R had not filed any supporting evidence so the application was incomplete. In response, the court served directions to R requesting a supporting witness statement, as well as a time estimate agreed with D for the hearing.
R failed to comply with the court’s directions and, as a result, their application to set aside the judgment was dismissed. As this order was made without a hearing, R was given 7 days to apply to set aside or vary the order.
R applied to set aside the order and filed a late witness statement. When questioned about the delay, R sought to rely on the pandemic and stated that they had been self-isolating because they were a vulnerable person.
The court's decision
The court dismissed the application.
The High Court held that whilst there was no express sanction for non-compliance with CPR 3.6, it was appropriate to apply the test set out by the Court of Appeal in Denton v TH White Ltd (2014) EWCA Civ 906.
The court decided that R’s failure to serve an effective application within the 14-day period was a serious and significant breach of CPR 3.6 which resulted in litigation being substantially delayed.
In relation to R’s comments regarding Covid-19 and the Coronavirus pandemic, the court stated, at para 52: '…what he does not do is explain what effect that had on him, if any, with his ability to prepare the relevant witness statement that should have been filed with the application notice. Simply referring to the pandemic as an excuse without more, does not provide an excuse to justify delay.’
Comments
This case reminds advisers to check for prescribed time limits and ensure applications fulfil the appropriate CPR requirements. Failure to do this is likely to be viewed as a serious and significant breach.
This case also highlights that if a client claims the coronavirus pandemic has impacted their ability to comply with court orders, practice directions or rules, they must be able to evidence the direct effect on their ability to comply with these in time.