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setting aside judgment? act promptly…

5 August 2014

In the case of Mohun-Smith V TBO Investments Ltd, judgment was entered after TBO failed to appear at the first day of trial. TBO had written to the court requesting an adjournment as its key witness was unavailable to give evidence. It then took TBO in excess of 10 days to make it’s application. Neither of these reasons were considered persuasive.

Pursuant to CPR 39.3(5), an application to set aside judgment in these circumstances must:

  1. be made promptly
  2. provide good reason for non-attendance; and
  3. show that the defendant has reasonably good prospects of success at trial.

Judge Seymour QC refused the application on the grounds that it had not been made promptly and the Court was not persuaded by the reasons for non-attendance; despite finding that TBO’s defence had reasonably good prospects of success.

Judge Seymour QC’s ruling demonstrates that conditions 1 and 2 are of utmost importance in such applications and acts a reminder that prompt action is essential when making an application to set aside judgment.

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