The judgment of Mr Justice Andrew Baker in Cunico Marketing FZW v. Daskalakis & Mundhra [2018] EWHC 3382 provides a detailed consideration of how CPR 12.3(1) ought to be interpreted. The Defendants filed an acknowledgment of service to the Claimant’s claim on the 4 July 2018, 4 weeks after the deadline had expired, but 1 hour before the Claimant filed a request for default judgment. The Claimant argued that judgment in default ought to be entered.

 

Baker J noted that there were 3 interpretations as to when 12.3(1) allowed a Claimant to obtain default judgment:

 

  • where, at the time of entry of judgment, there is no acknowledgment of service and the time for acknowledging service has expired;
  • where, at the time the request or application for default judgment is filed, there was no acknowledgment of service and the time for acknowledging service had expired; or
  • where a timely acknowledgment of service was not filed, irrespective of any acknowledgment of service later filed, ex hypothesi after expiry of the time period.

 

After considering a number of previous decisions in detail, Baker J expressed his view that the first interpretation was correct and certainly that the third could not be. He ruled that the Claimant could not obtain default judgment on this occasion because, at the time of making the request, an acknowledgment of service, albeit late, had been filed. It therefore appears to follow that there is no automatic sanction imposed when a defendant fails to file an acknowledgment of service on time.

Pete Blackmore

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Pete Blackmore

Supervising Solicitor - Midland, Wales, Northern & North-Eastern Circuits

Solicitor