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Whether there is a draft defence will, in certain circumstances, be a highly relevant factor in whether there is a real prospect of success on an application to set aside default judgment: Alli-Balogun v On the Beach Limited [2021] EWHC 1702 (QB) - Paul E

19/07/21.The Claimant, an eight year old child at the time of the accident, suffered catastrophic brain injuries when she drowned in a swimming pool in Spain on the watch of a lifeguard. The fifth defendant (“the Defendant”), the insurer of the company the lifeguard worked for, applied to set aside the default judgment obtained against it on 20 December 2019.

The main question court was whether there was a defence that would have a real prospect of success on liability. No draft defence was forthcoming. The interesting point for these purposes is the discussion in the judgment in relation to the lack of a draft defence.

The law

There is no requirement in an application to set aside default judgment to exhibit a draft defence. This was, indeed, a point raised by counsel for the Defendant.

However, the notes in White Book to CPR 13.4.1 state that it is preferable to exhibit a draft defence.

The observations of Jacobs J

Jacobs J observed:

“The absence of a draft defence in the present case reflects, at least in part, the fact that the 4th/ 5th Defendants have not been able to set out a factual case as to what happened. The evidence of the police report indicates that there has not been a coherent account from the lifeguard as to what happened. There is no realistic prospect that any such account will now be forthcoming, some 6 years after the incident, particularly bearing in mind the lack of cooperation to which Mr. Chapman referred.”

He noted that, the evidence, such as it was, indicated possible contribution on the part of the Claimant’s father. However, it did not provide any mention of any facts, which if they were true, would provide a full defence.

Accordingly, the judge concluded that the Defendant failed to show a real prospect of a defence on the issue of liability.

Conclusion

Sometimes, as potentially in this case, a defendant solicitor may be faced with a set of facts, and evidence, that does not provide much hope of success, even if a defence were to be drafted. However, not drafting a defence makes it easy for a judge to potentially conclude that no defence was drafted because there simply isn’t a credible defence.

Therefore, if you do make an application to set aside default judgment, make sure that you provide a draft defence with it. This will allow a judge to understand exactly why there is a real prospect of success in defending the claim - and distinguish it from cases where, like this one, there is no draft defence.

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