Hockley: The High Court on Denton, set aside, and telephone hearings

By Richard Borrett 

The case of Hockley v North Lincolnshire and Goole NHS Foundation Trust (available on Lawtel) primarily concerned an application for set aside of default judgement where the Defendant trust had filed its acknowledgement of service 13 days late.

Much of the judgement is fact sensitive, but there is some useful guidance on the application of all of the Denton stages and criteria, which is worth reading in full.

Additionally HHJ Richardson QC gave clear indications on a number of issues which are worth setting out briefly:

1. The relevance of rule 3.10 to set aside applications:

[34] – The relevant considerations to be applied in respect of both of these provisions are similar, albeit couched in different language… the difference in language is purely semantic and not of importance. The jurisprudence underpinning both rules is the same. I cannot envisage a case where relief form sanction would be permitted but there are no good reasons for setting aside the judgment. The reverse is also true: how could it be said there are good reasons for setting aside the judgment but they would not meet the criteria for relief from sanction.

HHJ Richardson QC also said, (at [42]) that the three stage approach in Denton had ‘considerable relevance’ to an application to set aside a default judgment when considering the good reason ground in CPR part 13.3(1)(b)

These findings go some way to resolving the somewhat unclear position left by the simultaneous judgements in Chartwell and Paul Dean Davies (see my previous blog on Denton here)

      2. Application of the Denton Guidance:

At [57] the Judge noted that “…the acknowledgement of service is not a trivial or unimportant step in litigation… the consequence of a failure to comply with the requirement to file it on time has the potential of a default judgement. That adverse consequence [default judgement] reveals the importance of this step in litigation. If it was of relative unimportance, the sanction for non-compliance would hardly be a default judgement.”

This is an interesting analysis and is likely to provide scope for argument (both for defaulting parties and respondents) in relief applications.

It could easily be argued the sanction in r32.10 is a serious sanction (restricting the evidence a party could call) and indicates therefore that late service is necessarily a ‘serious or significant’ breach.

3. Appropriate use of telephone hearings.

At [86] – [87] the Judge gave his views on the use of telephone hearings.

HHJ Richardson QC was in “no doubt that the determination of this difficult decision should not have been undertaken by way of telephone hearing. Such hearings are amenable to short decision making cases and matters which are truly procedural rather than requiring a fully reasoned exercise of a judgement”.

Those conducting them regularly will be aware of how accurate HHJ Richardson’s views on telephone hearings are. Though very useful, they are often not conducive to the type of consideration and argument which is required. These comments will be of use to those seeking to avoid them in cases where they are inappropriate.