How Easily Should Judgment Be Set Aside?
Nelson and another v Clearsprings (Management) Ltd
CA
22 September 2006
Daily Law Notes Summary
A defendant would normally be entitled to an order setting aside
a judgment obtained against him if he could show that he had not
been served with the claim form in accordance with the Civil
Procedure Rules.
And here is a more detailed summary from Lawindexpro, with thanks:
Litigation Practice
Nelson and Another -v- Clearsprings (Management) Ltd [2006] EWCA
Civ 1252
CA
22 September 2006
The defendant did not appear at the trial and now appealed the
judgment. The claim form had been served by post at the wrong
address. The question was whether a defendant wanting to set
aside a judgment was required to persuade the court to exercise
its discretion or whether he was entitled as of right after a
trial, rather than judgment in default. Held: "We do not think
that the draftsman of the CPR can have intended to introduce what
the editors call the more stringent requirements of rule 39.3(5)
into applications to set aside judgments irregularly obtained, in
the sense of being obtained without service of the claim form in
accordance with the rules. In our judgment, the whole of rule
39.3 contemplates a trial in the absence of a party who has been
served under the rules or in respect of whom service has been
dispensed with. " That did not amount to a finding that a party
was entitled to have judgment set aside as of right. If the
claimant can show that there is no real prospect of his claim
failing he should be able to retain his judgment. However a
judgment might almost always be set aside in such circumstances.
That should happen here.
Civil Procedure Rules 39.3(5)
Links to judgments:
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