Held, application allowed. (1) Contrary to what was stated in Civil Procedure 2022, p 561, para 13.3.5, the regime under which applications for relief from sanctions under CPR r 3.9 were determined did not apply to an application to set aside a default judgment under CPR r 13, Pt 13 containing no reference to the former and its purpose being, as an expression of the overriding objective, to promote justice and to avoid injustice. As such, the court’s discretion was to be exercised to promote the overriding objective, not to punish a party’s incompetence or lassitude. That, where possible, the right or just result had to be reached, so that a party which was liable in law was held liable in law and a party which was not liable in law, because it had never owed a duty to a claimant, was not held liable. A default judgment, unless disturbed, was terminatory on liability, the defaulting defendant carrying the weight of such judgment, whether objectively liable or not. If such defendant were not actually liable, it could seek to set aside that judgment, to avoid that injustice and rebalance the scales, by (i) demonstrating that it had a real prospect of succeeding in its ambition of defending the claim, the court evaluating, so far as it was possible to do so, the apparent strength of that defence, (ii) persuading the court that, weighing all the factors, including the character and extent of the delay and its impact on the claimant/respondent, that the court’s discretion should be exercised in its favour and (iii) if granted the setting aside of a default judgment, by prevailing at trial, which it might or might not achieve but injustice being avoided by the defendant having the right, under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. As the White Book stated, the discretion was “unconditional”, that in-built latitude existing so that the court could be sensitive to the infinite variety of facts and factors and their ever-changing combinations (paras 24, 32, 33, 47, 48, 62, 63, 95, 98).

Ince Gordon Dadds LLP v Mellitah Oil and Gas BV [2022] EWHC 997 (Ch) not followed.

(2) The question of delay or promptitude was not a separate test or second limb to the test in an application to set aside a default judgment. While promptitude or its lack required mandatory and important consideration and to be accorded significant weight, failure to act promptly was not in itself necessarily dispositive. The court had to weigh all the circumstances of the case in exercising its discretion (paras 49, 50, 94).

(3) Applying those principles, none of the contemporaneous reports or records suggested the local authority had ownership, occupation or control of the ice rink. There was detailed, consistent, mutually supporting documentation which had been produced independently over many different years by completely differing sources which strongly pointed to the fact that ownership, occupation and control rested not in the hands of the local authority, but in a variety of private hands. Accordingly, the threshold test in CPR r 13.3(1)(a) was met, the authority having a real, as opposed to fanciful, prospect of defending the claim on liability. There had been a fundamental and inexcusable lack of promptness in making the application after judgment in default had been entered which, regretfully, meant that the claimant would not be alive for a trial of the issues. However, in fairness to both parties, weighing the relevant factors, the amounts in issue, the importance to the taxpayers in the authority, given the insolvency of the authority’s legacy insurers, against the brutal impact on the claimant and his family, the resources involved of a full trial on liability and quantum and the importance of compliance with the rules of court, the court would exercise its discretion to set aside the default judgment. The same conclusion would have been reached on the facts of the present case even had the principles applicable to the relief from sanctions regime applied (paras 59, 78–89, 91, 94, 95–97).