No need to establish a “real prospect of success” to set aside a default Judgment

In the trademark infringement matter of Erol v Global Fashion Links [2014] EWHC 4687 (IPEC) (9 December 2014), the Court has agreed to set aside Judgment in default entered against the Defendant.

On a technical note, the Rules (CPR 13.3) provide that Judgment in default should only be set aside (a) if the Defendant has a real prospect of successfully defending the claim or (b) there appears to be some other good reason why the Judgment should be set aside or varied, or why the Defendant should be allowed to defend the claim. For completeness, the Courts also take into consideration whether the Defendant’s application was made promptly.

Whilst the case primarily revolved around whether the Defendant had a real prospect of success at trial, which the Court was satisfied it did, the Court also considered the Claimant’s technical failure to serve a “response pack” when serving the Proceedings on the Defendant. The response pack contains the guidance notes for the Defendant and the necessary acknowledgement and defence forms.

Notwithstanding the fact that a response pack is readily available through a Court office or online, the Court took the view that, as held in the matter of Gulf International Bank BSC v Ekttitab Holding Company KSCC [2010] EWHC B30 (Comm), a Claimant’s failure to serve a response pack is potentially a good enough reason, by itself, to set aside Judgment in default, irrespective as to the merits (or otherwise) of a Defendant’s case.

This decision is unlikely to come to the rescue of many Defendants trying to aside a Judgment in default but does serve as a reminder to ask the question as to whether the Claimant strictly complied with its technical obligations when serving the Proceedings. If not, the set-aside application could become a whole lot easier!

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