Mullock v Price, Court of Appeal, 15 October 2009 [Lawtel AC9400942]

It was doubtful whether the court should, pursuant to CPR r.13.3, take into consideration the fact that the party’s delay in applying to set aside a default judgment had been caused by his representative. The language of CPR r.13.3 was explicit – the party seeking to set aside a judgment had to ensure, personally, that the application was made promptly. It would be wrong for a party to be able to shield behind his representatives.

The facts of the case are as follows: whilst waiting for a lift outside a hotel, the claimant was knocked over by a hotel employee’s dog and was seriously injured. She issued proceedings for damages against the defendant, who passed on all of the documents to his insurance brokers. The brokers informed the defendant that they would deal with the claim, but they didn’t and default judgment was entered against him. The claimant then successfully applied for an interim payment and a warrant was issued to enforce the order. The defendant again referred the claim to his brokers. At the disposal hearing, damages were awarded to the claimant. The police then advised the defendant that his brokers were being investigated in relation to fraudulent policies and that his policy might be fraudulent. The defendant’s application to strike out the default judgment, made on learning this information, was made almost two years after the judgment had been entered and was therefore dismissed.