APPLICATION TO SET-ASIDE DEFAULT JUDGMENT ON BEHALF OF THE DEFENDANT MR

ROBERT MARCHAND( HIGH CLOVE MOORE) AGAINST THE CLAIMANT MR PIOTROWSKI

May it please the Court madam

I appear on behalf of the defendant, and my learned friend appears on behalf of the
claimant
May I check whether madam has received the skeleton argument for my application
I’m grateful

Madam would you like me to proceed with a brief summary of the facts in this case?
FACTS OF THE CASE
1. The claimant’s company Piotrowski Food Producers LTD which is a manufacturer of
chipped potatoes contracted with the defendant’s company namely Highclove Moor
Agriculture LTD who own farm sites in Lincolnshire contracted on the 4 th of March
2021 to deliver 100T of potatoes to the claimant.
2. The dispute arose when the ‘farm sites’ of the defendant were infected by a fungus,
commonly known as potato blight which damaged both fields and this frustrated the
contract on the 2nd of September 2021 at the time of the harvest.
3. Default Judgment was entered on the 24th of August 2022 for failure to file a
defence. This happened following a tragic accident on the 13 th of June 2022 when
the instructing solicitor was hospitalized.

WHY I AM APPLYING TO SET-ASIDE DEFAULT JUDGMENT?

I am applying to set aside default judgment because;
1. The defendant has real prospect to successfully defend the claim.
2. The contract was frustrated
3. The instructing solicitor met with a severe accident, she failed to file a defence and
as a consequence, default judgment was entered.

Madam would you like me to proceed to the legal test for this application?
I’m grateful
Madam the legal test is set out in cpr 13.3,

13.3-(1) In any other case, the court may set aside or vary a judgment in default entered
under part 12 if;
(a) the defendant has a real prospect of successfully defending the claim, or
(b) It appears to the court that there is some other good reasons why;
(i) the judgment should be set aside or varied; or
(ii)the defendant should be allowed to defend the claim
(2)In considering whether to set aside the default judgment or vary a judgment entered
under Part 12, the matters to which the court must have regard include whether the person
seeking to set aside the judgment made an application to do so promptly.
(Rule 3.1(3) provides that the court may attach conditions when it makes an order.)
Since the application is one for relief from sanctions, the principle in the case of Denton v
White also applies. It is a 3 stage test
1. The seriousness and significance of the breach
2. Why the breach occurred
3. Taking all the circumstances of the case

Legal authorities:

1. The defendant has real prospect in successfully defending the claim because he has a
‘realistic’ as opposed to ‘fanciful’ prospect of success as established in the case of
Swain v Hillman and also the claim is more ‘realistic’ than merely arguable. A realistic
claim is one carries some degree of conviction.
2. It appears to the court that the defendant has ‘some other good reasons’ as
stipulated in the case of Andrew Mitchell MP v News Group Newspaper LTD. The
court of appeal clarified what would constitute a good reason for not filing a defense
in time. In addition, it was stated at paragraph 40-41 that if the defaulting party or
his solicitor suffered from a deliberating illness or was involved in a car accident, this
would constitute a good reason. In para 41, the Court of Appeal states that if there is
a good reason for it, the Court will be likely to decide that relief is to be granted.
3. The defendant acted promptly because it was held
4. The breach was neither serious nor significant according to the case of A Khan
Design LTD V Horsley and another (2014), a 2 year delay to comply with an order
amounted to a serious breach and this had put the defendant at serious
disadvantage.
5. The breach occurred because (why the breach occurred) the solicitor
Madam may I move to my legal submissions

SUBMISSION
6.