In Rushworth v Harvey  EWHC 1386 (QB), the High Court has considered various procedural irregularities in the context of an application to set aside a default judgment.
The underlying dispute between the parties was in respect of the claimant's allegation that he was due remuneration for work he had done for the defendant, including reimbursement for the cost of flights from Sweden to attend a meeting in London.
The procedural history of the claim was somewhat complicated. The claimant served a claim form on the defendant, but no particulars of claim or response pack. Consequently, the defendant decided not to acknowledge service. Various discussions ensued between the parties as to which documents had been provided and, some months later, the claimant sent further copies of the claim form, particulars and a form for acknowledging service. The defendant then alleged that service was invalid as he was served more than four months after the claim had been issued. The claimant proceeded to obtain judgment in default, which the defendant applied to have set aside.
The defendant submitted that the default judgment had to be set aside under CPR 13.2 as one of the conditions in CPR 12.3 had not been satisfied - namely that time for filing an acknowledgment of service had never begun to run so could not have expired. The basis for this was that service of the claim form was invalid as it did not comply with rule 59.4(1)(a) and (b), relevant to claims in the Mercantile Court such as this. The defendant also asserted that the claimant should have issued an application notice under Part 23 if he wanted to obtain default judgement.
Alternatively, the defendant requested that the Court exercise its discretion under rule 13.3(1) to set aside default judgment on the basis that the defendant had a real prospect of successfully defending the claim, or there was some other good reason to set it aside.
The Court accepted that the claimant had failed to comply with requirements of rule 59. However, despite the procedural irregularities, the claim form had clearly been served. Therefore, there was no reason to imply into the rules a requirement that service of a claim form was deemed to be invalid if rule 59.4 was not complied with. The defendant should have filed an acknowledgement of service, and the condition for entering a default judgment under rule 12.3(1) had been satisfied.
In relation to the allegation that an application notice should have been issued under Part 23, to obtain default judgment the Court considered that the claimant had committed what amounted to only "a minor procedural irregularity" in filling out a form requiring default judgment rather than using an application notice. The Court held that this did not "nullify the default judgment or provide a ground on which the court should set it aside".
However, the Court found that there was a real prospect of defending the claim. On the facts, and with the exception of requiring the defendant to reimburse the claimant for his air fare, the particulars of claim disclosed no reasonable grounds for bringing the claim. The judgment in default was set aside. The claimant was entitled to the reimbursement of his air fare but the remainder of the claim was struck out.
This case highlights the importance of ensuring that claims are responded to in accordance with the CPR. The defendant's ultimate success in having the default judgment set aside was unrelated to the procedural irregularities which he had primarily sought to rely on in not acknowledging service. It is also notable that, despite most of the claim being struck out, the Court made no order to costs and commented that if "the defendant had followed the course of acknowledging service and immediately applying to strike out the claim, [Mr Justice Leggatt] would have considered that the costs should follow" in this case.