PI Brief Update

‘The Denton Tests Do Apply to an Application to Set Aside Judgment’: FXF v English Karate Federation Ltd [2023] EWCA Civ 891 - Sebastian Bates, Temple Garden Chambers

31/07/23. As Sir Geoffrey Vos MR—with whom Nicola Davies LJ agreed and Birss LJ agreed in a short concurring judgment—explained at [1], ‘[t]his case highlight[ed] a controversial procedural issue that ha[d] arisen in the wake of’ the well-known Denton judgment, namely ‘whether the three-stage test described in Denton should be applied by the court when it is considering whether to set aside a default judgment under’ CPR 13.3 in circumstances where there were ‘authorities [. . .] said to point both ways’.

Summary

The Claimant sought ‘damages for personal injury for alleged serious sexual abuse by her karate coach over an extended period’: see [2]. As summarised by the Master of the Rolls at [3] and [9]–[12], the Second Defendant did not timely file its Defence and the Claimant obtained default judgment, which Master Thornett subsequently set aside for reasons given orally. The appeal to the Court of Appeal was against Master Thornett’s decision.

As quoted by the Master of the Rolls at [4], Master Thornett’s reasoning as to Denton was that ‘the familiar criteria of Denton are qualified because of necessary incorporation into the context and the express criteria under CPR 13.3: in particular, the criterion of “real prospect of successfully defending the claim”’.

The basis for the Claimant’s appeal was that, in her view, Master Thornett had erroneously failed to apply the Denton tests, which she contended would have counselled in favour of the default judgment standing; for its part, the Second Defendant contended that Master Thornett had correctly exercised his discretion: see [5]–[6].

Conclusion and Comment

Sir Geoffrey Vos MR’s conclusion (at [7]) was ‘that the Denton tests do apply to an application to set aside judgment, but [. . .] the Master understood that and exercised his discretion appropriately’ and so‘the appeal should be dismissed’.

After a thorough review of the authorities at [25]–[58], he concluded at [59] that they fell into ‘three categories’: ‘(i) cases where the rule or order expressly provides for the sanction that will apply on non-compliance [. . .], (ii) cases where the rule does not expressly state the sanction which applies for non-compliance, but permission of the court is needed to proceed [. . . ], and (iii) cases where a further step is taken in consequence of the non-compliance, such as the entry of a default judgment (as in this case)’.

Denton ‘applies directly to the first category’ and the case did not implicate the second, so it was not addressed: see [60]. It is now established (at [61]–[68]) that Denton applies to the third category.

Practitioners will wish to be mindful of the Denton tests in appropriate cases, as identified in this judgment, albeit they should also heed the warning (at [73]) that parties ‘may expect no indulgence from the court if they do not’ comply with the CPR.

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