The High Court gave guidance on the procedure for setting aside default judgment last week in Gilbert & BG Projects v Broadoak Private Finance [2024] EWHC 2046 (Comm).  Andrew Hochhauser KC, sitting as a Deputy High Court Judge, confirmed that a draft Defence should be filed well in advance of the hearing.  He did so in a costs judgment following his recent decision in Gilbert & BG Projects v Broadoak Private Finance (unreported, 28 June 2024) to affirm a substantial default judgment in part, rejecting an application by the Defendant to set it aside completely (the “Set-Aside Application”).

The substantive proceedings concerned claims for repayment of various loans made by the Claimants to the Defendant for onward lending to a third party.  The Claimants accepted that the defence to repayment of certain loans should be allowed to go to trial. However, they maintained that the Default Judgment should be preserved in relation to four loans, with a cumulative value of approximately 58% by value of the Default Judgment (the “Opposed Loans”).

On 25 April 2024, HH Judge Pelling KC made a directions order materially in the terms sought by the Claimants.  He confirmed that the rules in the CPR and Practice Directions governing the filing and service of evidence for applications also apply to applications to set aside default judgment, and that a party which seeks to rely on a draft Defence in such an application should file and serve that document at the point of issuing the set-aside application.  In Gilbert [2024] EWHC 2046 (Comm), on the costs of the Directions Application, the Defendant contended that it had nevertheless been the successful party – and so entitled to their costs – because that Order had not included a provision debarring the Defendant from relying on any draft Defence filed after the deadline, which had been sought by the Claimants.  By his approved judgment dated 1 August 2024, Andrew Hochhauser KC, rejected the Defendant’s arguments and awarded costs in favour of the Claimants, stating that:

Max Marenbon and Ryan Tang represented the successful Claimants in Gilbert & BG Projects v Broadoak Private Finance [2024] EWHC 2046 (Comm), instructed by Marc Keidan, Ben Rutledge and Alex Boardman of Keidan Harrison LLP.

Max Marenbon was sole counsel for the Claimants in the Set-Aside Application.

Ryan Tang was sole counsel for the Claimants in the Directions Application.

Read more here.