RS v LS & LMP [2018] EWHC 449 (Fam) (07 March 2018)

RS v LS & LMP [2018] EWHC 449 (Fam) (07 March 2018)

The default judgment in the sum of £107,361.07 is set aside to the extent of the interest element, as LS has a real prospect of defending the claim regarding interest due to the arguable contractual variation and waiver. The procedural defect of failing to serve a response pack also constitutes a good reason to set aside the judgment. However, LS has no arguable defence to the principal sum of £69,906, which remains due and judgment is entered for that amount.

Citation
[2018] EWHC 449 (Fam)
Parties
Petitioner: RS; First Respondent: LS; Second Respondent: Levison Meltzer Pigott
Jurisdiction
England and Wales
Judgment Date
07 March 2018
Procedural Posture
Application to Set Aside Default Judgment (debt Recovery Within Matrimonial Proceedings) / Post Judgment, Application to Set Aside Default Judgment
Outcome
Default judgment set aside in part; judgment for principal sum only; stay of execution granted
Legal Topics
Default Judgment, Debt Recovery, Legal Costs, Contractual Variation, Interest on Costs, Service of Process, Setting Aside Judgment
Family Law Civil Procedure Default Judgment Debt Recovery Legal Costs Contractual Variation Interest on Costs Service of Process +1 more

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Parties

RS

Petitioner

LS

First Respondent

Levison Meltzer Pigott

Second Respondent

Procedural Posture

Application to Set Aside Default Judgment (debt Recovery Within Matrimonial Proceedings) / Post Judgment, Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the default judgment obtained by LMP against LS should be set aside due to procedural defects and/or a substantive defence regarding interest liability
  2. 2 Whether LS has a real prospect of successfully defending the claim for interest on legal costs
  3. 3 Whether failure to serve a response pack constitutes 'some other good reason' to set aside judgment under CPR r 13.3(1)(b)

Ratio Decidendi

The default judgment in the sum of £107,361.07 is set aside to the extent of the interest element, as LS has a real prospect of defending the claim regarding interest due to the arguable contractual variation and waiver. The procedural defect of failing to serve a response pack also constitutes a good reason to set aside the judgment. However, LS has no arguable defence to the principal sum of £69,906, which remains due and judgment is entered for that amount.

Court Disposition

Default judgment set aside in part; judgment for principal sum only; stay of execution granted

Orders

  • Default judgment of £107,361.07 set aside and replaced with judgment for £69,906 in favour of LMP
  • Stay of execution on the judgment debt until 9 March 2018, subject to further directions