Key Facts
- •Default judgment entered against First Defendant, Mr. Sartori, on June 13, 2023.
- •Mr. Sartori's application for relief from sanction and extension of time for filing an acknowledgment of service.
- •Application to set aside the default judgment.
- •First Claimant, Ms. Galliani, died on June 1, 2023.
- •Claimants allege fraudulent and negligent misrepresentation and unlawful means conspiracy.
- •Claimants allege misrepresentations regarding returns on investment in Andean Power Generation Limited.
- •Mr. Sartori denies the allegations and raises several defenses, including a no representation clause, exclusion of liability, truth of statements, and limitation.
- •Acknowledgement of service filed on the same day as default judgment was entered.
Legal Principles
Default judgment must be set aside if conditions in CPR Part 12 for entry of default judgment are not satisfied.
CPR rule 13.12
An acknowledgement of service or defence bars entry of default judgment if filed before judgment is entered.
CPR rule 12.3(1)(a), Civil Procedure (Amendment) Rules 2020 (SI 2020/82)
Entry of judgment is equated with perfecting a judgment, now carried out by drawing up and sealing.
CPR rule 40.2(2)(b), Holt v Hodgson (1889) 24 QBD 103, Millenstead v Grosvenor House (Park Lane) Limited [1937] 1 KB 717, Pittalis v Sherefettin [1986] QB 868, Paulin v Paulin [2010] 1 WLR 1057
Court has discretion to set aside a regularly entered default judgment if defendant has a real prospect of successfully defending the claim or there is some other good reason.
CPR rule 13.3
Test for real prospect of success is similar to that for summary judgment, but burden of proof differs.
ED & F Man Liquid Products v Patel [2003] EWCA Civ 472
To establish misrepresentation, lack of belief in truth or lack of reasonable grounds for belief must be shown.
Brown v Raphael [1958] Ch.636
Relief from sanctions considered using the three-stage test in Denton v TH White Limited [2014] EWCA Civ 906.
FXF v English Karate Federation Limited [2023] EWCA Civ 891
Outcomes
Default judgment set aside.
Judgment was entered irregularly as an acknowledgement of service was filed before the judgment was sealed. The defendant also had a real prospect of successfully defending the claim.
No order made on application to vary the order of HH Judge Pelling KC dated 23 October 2023.
Not necessary given the setting aside of the default judgment.