A claimant may be able to obtain judgment in default of a defence, even where the defence is served late. A defendant who served a late defence could not, in Billington v Davies  EWHC 1919 (CH) rely on the pre-condition in CPR 12.3 (2) (a), which states that judgment in default may only be obtained where "a defence has not been filed".
The decision is a warning to a defendant who attempts to file a late defence.
The defendant filed an acknowledgment of service to the claim, but no defence. The claimant applied for judgment in default.
The defendant filed and served defence, the day before the hearing, some months after the defence was due. It also applied for an extension of time to file the defence.
- The defendant sought to rely on CPR 12.3 (2) (a) (see above).
- In Master Pickering's view, the Rule referred to a defence served within time or where an extension had been granted.
- The note at 15.4.2 of the White Book was, in the Master's view, wrong: filing a defence late will not prevent a claimant obtaining default judgment.
- The defendant also applied for an extension of time which was refused. The defendant's shortage of funds was not considered to be a good enough reason for the delay.
The defendant's delay in serving his defence, albeit due largely to concerns as to funding, left the claimant free to obtain judgment in default despite a CPR Rule which had been thought to prevent default judgment in these circumstances.
This is only a master's decision. Note, though, the recent case Coral Reef v Silverbond Enterprises which considered the significance of masters' decisions and suggests that, given their breadth of experience, their decisions should be afforded greater weight.