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ED & F Mann Liquid Products Limited v Patell, Court of Appeal, 14 April 2003

14 April 2003
The issues

Setting aside Judgment – CPR Part 13 – CPR Part 24.

The facts

The First Defendant applied to set aside a Judgment obtained in default of Acknowledgement of Service. The Judge rejected that Application. The Defendant appealed to the Court of Appeal.

The decision

1. In CPR Part 13 (setting aside Judgment) and CPR Part 24 (striking out) the same phrase appeared, namely “a real prospect of successfully defending the claim”.

2. Under both rules, the Defendant had to have a case that was better than merely arguable as had been the case under the old rules and where there was a realistic prospect of success carrying some degree of conviction.

3. The difference between Part 24 and Part 13 was that when applying to strike out, the burden of proof rested on the Claimant to show that the Defendant had no prospect of success, whereas under Part 13 the burden lay on the Defendant. The Court would be more receptive to a Defendant’s arguments under Part 24 than Part 13.

Appeal dismissed.

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