Avanesov v Shymkentpivo [2015]
In Avanesov v Shymkentpivo [2015] EWHC 394 (Comm) (25 February 2015) the Defendant applied to have two judgments obtained by the Claimant, set aside. A judgment for damages, one month after service and a default judgment, eight months after service.
The circumstances arising from this application by the Defendant were that he had failed to acknowledge service from the Claimant who then obtained judgment in default. The order provided judgment for damages to be assessed and allowed the Defendant to make an application for judgment to be set aside or varied, within 21days.
The Defendant was then served with an application for assessment of damages and informed of the hearing date. However he did not reply or attend at the hearing and the Claimant obtained judgment for damages.
Justice Popplewell in the Commercial Court observed that a CPR 13.3 application is an application for relief from sanctions of which CPR 3.9 and the test established in re Denton is applicable. He looked at and compared CPR 13.3 (2) with stages one and two of the Denton test and saw very little to distinguish between them. In CPR 13.3 (2) consideration is given to whether the application is made on time and in the Denton test, how significant and serious the default is and the basis for it.
Justice Popplewell noted there was a serious delay in the Defendants application of 8 months as the first judgment and a month to 6 weeks for the second He further looked at the requirement for there to be efficiency in the way the cases are dealt with or conducted and for court orders to be adhered to. The Judge considered there would be considerable prejudice to the Claimant if the judgments were set aside. On weighing up all the issues before him he considered that he must refuse the Defendant’s application as his defence could not justify setting the judgments aside.