Master McCloud’s judgment in  Clements Smith v Berrymans Lace Mawer Service Co. & Anor [2019] EWHC 1904 (QB) considers whether a default judgment was properly entered. A Defence was filed, out of time, after judgment in default was requested by the Claimant, but before the Court issued the default judgment.  

Master McCloud acknowledged that the matter was likely to be appealed either way and that in making a decision she had had regard to the obiter of Andrew Baker J in Cunico Marketing v Daskalakis [2018] EWHC 3882 (Comm), reported here.  

Master McCloud noted that CPR 12.3 requires the following before default judgment can be granted:

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

She reasoned that: “as here a defence was filed prior to the point at which the court came to apply rule 12.3, the court did not have jurisdiction to enter default judgment. Judgment must be set aside as of right”.

As Master McCloud acknowledged there is considerable disagreement issue. It seems likely an appeal and/amendments to the CPR will follow.