The High Court has refused a request from a litigant in person to adjourn an application hearing based, inter alia, on the Covid-19 pandemic having precluded their preparation for the hearing. Rejecting all three of the grounds for the adjournment application, Mr Justice Nicklin in the recent decision of Glenn v Kline [2020] EWHC 3182 (QB) held that the Defendant had, even making due allowance for the current circumstances, had ample time within which to seek legal advice and/or representation.

Notably, the Judge remarked that, “The Covid-19 pandemic has challenged aspects of the delivery of the administration of justice in this country, but it has not caused the system to grind to a halt”.

The Particulars of Claim had been served on the Defendant on 4 August 2020, generating a deadline to file an Acknowledgment of Service by 18 August 2020. Following the deadline having passed, the Claimant’s representatives had written to the Defendant forewarning of the application for judgment in default should no Acknowledgment of Service be forthcoming. Despite repeated reminders, neither an Acknowledgment of Service nor a Defence was filed by the Defendant. The Claimant applied for judgment in default and the Defendant requested an adjournment, on three grounds:

  • He had insufficient time to prepare for the hearing
  • He was facing other claims which it was submitted may need to be consolidated with the instant claim
  • The Covid-19 pandemic hindered his access to law libraries and his ability to contact the court

The Judge held that:

  • there had been sufficient time for the Defendant to read the Claimant’s pleadings and prepare – 5 weeks since the Application had been served;
  • that in the absence of evidence/any Acknowledgement of Service or Defence, it was impossible to assess what if any overlap there was between the other proceedings and this claim
  • that there had been an ample amount of time of 3 months since service on the Defendant to take advice/obtain representation, and it was unclear why the Defendant even needed to contact the court when this was unnecessary for the filing of an Acknowledge of Service or Defence

It is worth remembering that the Defendant is afforded a further degree of protection from a default judgment, in that one may only be validly obtained if, on the date on which judgment is entered, no Acknowledgement of Service or Defence (as applicable) has been filed – CPR 12.3(1) and (2), respectively. This provides a de facto additional period of time for a Defendant to prevent the entering of judgment, due to the inevitable delay between the request for judgment being made and the judgment in fact being entered.

Nicklin J stated at [18] that the Acknowledgement of Service form is a very straightforward single page document, and that the only requirement on a Defendant is to tick a box to indicate a response to the claim. The Judge also quoted the wording which features on that form, warning of the consequences for failing to file either it, or a Defence. He also held at [22] and [24] that the Defendant’s conduct – consisting of ‘a lack of genuine engagement and a degree of prevarication’ – was ‘difficult to fathom’, especially in light of the Claimant’s forbearance for a litigant in person.

The decision is a useful reminder for LPC Law’s advocates, when opposing applications to set aside judgments which have been entered in default, following the Defendant’s failure to file either an Acknowledgment of Service or a Defence. Covid-19 is not an adequate reason for litigants (in person or represented) failing to tick a box and/or engage in the proceedings within the relevant timescales.

CMG

About The Author

Chris McGeever

Advocacy Manager - Northern Circuit