Setting Aside Default Judgment

Another example of the EAT overturning a default judgment when the tribunal declined to do so.

As subscribers will know, a Response has to be entered within 28 days, or the tribunal may enter default judgment against the Respondent.

On day 27, the Respondent's solicitors posted the Response Form to the tribunal (by first class-post). It arrived two days later, on day 29, by which time default judgment had been entered.

The solicitors also faxed a copy of the Response Form, but in error faxed it to Acas rather than the tribunal.

The chairman refused to set aside default judgment, taking the view that first-class post should be expected to take two days to be delivered (as, indeed, it did), and so no good reason for failing to enter a Response within 28 days had been shown.

The EAT (HHJ Peter Clark) overturned this and set aside the default judgment. He agreed that no good reason had been shown for the failure to enter the Response within 28 days. However, showing a good reason was not a hurdle which had to be overcome by the Respondent - rather, it was one of the many factors that should be taken into account. When others were taken into account, including the prejudice to each party and that there was an attempt to fax the Response Form within time (albeit it was faxed to Acas in error).

The Pestle & Mortar v Turner