The art of interim applications: regaining control after the Defendant has made a mistake
October 28, 2021
The art of interim applications where the Defendant has made a mistake
Applications to set aside judgment and applications to withdraw admissions have something in common: the need to make them is generally caused by a Defendant’s error. Two recent decisions shed light on how a court will apply the rules in assessing their merits. concern for potential injustice will be the prism through which it looks at the CPR.
Application to set aside
Under CPR Part 13, the burden is on the applicant to show a good reason why judgment should be set aside. The normal starting point for that is establishing a real prospect of successfully defending the claim. The other critical factor is whether the application has been made promptly. There have been a number of decisions in the past where lack of promptness has caused an otherwise meritorious application to fail.
Alli-Balogun v On the Beach  EWHC 1702
The Claimant brought a claim for a catastrophic injury. One of the Defendants, a foreign insurer, applied to set aside a judgment in default.
The principles in the decision
The judge subtly departed from the traditional inflexible approach where there has been a lack of promptness by the Defendant in making the application. He was keen to keep promptness as a prominent factor, but he was not willing to let it eclipse other factors: “I do not consider that lack of promptness would lead to the conclusion that the judgment should remain in place… the purpose of the power to set aside is to avoid injustice.” This emphasis on injustice with set aside applications is wholly correct. It is a much more flexible instrument for evaluating the applications. That is good news for Defendants.
As an aside, note also that the Defendant did not have a draft defence to show the court. Whilst desirable in these applications, it is not strictly essential.
Application for Defendants
Rely on this case if a Defendant has an application to set aside which is at risk of being refused because the application was not made as promptly as it should have been.
Withdrawal of admission
CPR Part 14 governs the withdrawal of admissions. PD14.7 sets out the factors that any judge has to consider. They include prejudice, conduct, the stage at which the application is made, prospects of success, why the applicant seeks to withdraw the admission and the administration of justice generally. Resiling from a pre action admission is much easier than resiling from an admission made in a defence.
J v South Wales  EWCA Civ 1102
A local authority admitted failing to remove a child from his abusive mother when it should have. But months later, it applied to resile from the admission.
The first instance judge carefully considered each of the Practice Direction factors and refused the Defendant’s application. But on appeal it was held that the judge had failed to step back and consider the case as a whole. By treating the factors as a mechanical exercise, she had not considered weight to be apportioned to each one, nor whether, when standing back, the overall result was still fair. Her decision was therefore overturned by the Court of Appeal and the Defendant was given permission to withdraw the admission.
Application for Defendants
Although the CPR codifies different, precise tests for a variety of applications, the rule of thumb is always: “Is the result fair?” If a Defendant makes an application which is technically weak, but which has a clear purpose to avoid significant injustice, it will have reasonable prospects of success.