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Judge Moloney QC has dismissed the defendant's (D) application under CPR 39.3 to set aside two court orders made in his absence. The decision provides a useful illustration of the relevant criteria.
The claimant (C) issued injunction proceedings alleging that the defendant (D) was responsible for an online campaign of harassment against C and its employees. C served notice of the proceedings by process server and email. D asserted that he had not received any notice and failed to attend the hearing. The judge granted default judgment, issuing a final injunction and awarding libel damages, which were assessed at a subsequent hearing. D later received a suspended sentence for breaches of the injunction. Permission to appeal was refused and D issued the CPR 39.3 application.
The judge considered that, for practical purposes, the relevant rules for setting aside default judgment (CPR 13.3) and setting aside the damages assessment made in D's absence (CPR 39.3(5)) were broadly similar. There were three considerations:
Was D served with notice of the hearings?
Did D have a real or reasonable prospect of successfully defending the claim if it was re-opened?
Had D acted promptly in making the application to set aside?
D's assertion that he had not received any notice of the proceedings had to be determined on the "balance of probabilities". The judge considered it so improbable that both methods of service had failed that he was "quite satisfied" that D had notice of both hearings but chose to ignore them. Based on the "powerful conclusion" drawn at the committal hearing, and in the absence of any fresh evidence from D, the judge considered that D could not show any prospect of success, let alone a real or reasonable one. Further, he considered D's 18-month delay in applying to set aside to be a "clear and grave instance of want of promptness", sufficient itself to debar the application.
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