High Court dismisses solicitor's attempt to set aside default judgment due to unexplained delay and lack of defence.

Neutral Citation: [2013] IEHC 560

THE HIGH COURT

[2009 No. 5405 S.]

BETWEEN

FCR MEDIA LIMITED (Formerly TRUVO IRELAND LIMITED)

PLAINTIFF

AND

ANGELA FARRELL

DEFENDANT

EX TEMPORE RULING of Mr. Justice Cooke delivered the 4th day of November 2013

1. On the 14th September, 2009, a summary summons was issued by the plaintiff claiming the liquidated sum of €38,747.76 as due

and owing by the defendant. No appearance was entered and on the 21st September, 2010, a judgment in favour of the plaintiff was

entered by default in the Central Office of the High Court. The defendant has now, on the 19th July, 2013, issued a notice of motion

under O. 13, r. 11 to set aside that judgment.

2. In the grounding affidavit of the 26th July, 2013, and a later supplemental affidavit, the defendant raises what appear to be series

of queries about the accuracy of figures in documents relating to the account her solicitors firm had with the plaintiff as publishers of

the Golden Pages telephone directory. She wrote to the plaintiff’s solicitors on the 1st July, 2013, asking for the agreement upon

which the claim had apparently been based and requesting to be furnished with documents. In particular she now raises a series of

queries as to how a figure of €84,665 appears in the documents. The subsequent exchange of correspondence indicates that no such

sum was ever claimed as being due and that the balance outstanding of the account was the sum claimed in the summons.

3. What is striking, however, is that the defendant’s affidavits are wholly silent as to how judgment came to be entered against her in

September 2010. No explanation is given as to why no step was taken to set aside the judgment over a period of almost three years

since it was entered. There is no assertion that the summary summons was not properly served. She makes no claim not to have

known of the existence of the claim either before the proceedings were brought or before judgment was entered. No explanation is

given for her failing to enter an appearance. No evidence is given as to when exactly she learned that judgment had been entered

against her.

4. The defendant is a practising solicitor and she must, therefore, be taken as having understood the summary summons procedure

and to have appreciated the implications both of failing to enter an appearance and of not moving promptly to set aside a judgment

once entered.

5. In moving the present motion, the only explanation offered by the defendant was that at the time she was “inundated with other

proceedings”.

6. It is true, of course, that the Court has a very wide discretion in exercising its powers under O. 13, r. 11 to set aside a judgment

obtained by default and perhaps especially so when it is a judgment for a liquidated sum marked in the Central Office in default of

appearance. Nevertheless, there must be some evidence of facts before the Court upon which the Court can judicially exercise that

discretion.

7. In particular, there must be some explanation as to how it came about that the defendant failed to enter an appearance or to

defend the matter at the appropriate time. That is especially so in the case of a solicitor who is personally sued.

8. There must be evidence either that there was some irregularity in the manner in which judgment was obtained or that, if obtained

regularly, the defendant’s failure to enter an appearance was due to some mistake or to having been taken by surprise. Above all,

there must be put before the Court some basis for a valid and bona fide defence to the claim which has a real prospect of success.

9. In the judgment of the Court, none of these ingredients is satisfied in the material place before the Court by the defendant on this

motion. The most that can be said is that the defendant raises some somewhat vague queries about the accuracy of figures

appearing in the documents furnished to her. There is, however, no sworn statement that she has a defence or what the basis of

that defence might be. While querying the manner in which the plaintiff conducted the account or maintained its records, she does

not set out what she claims to have been the terms of the contract she had with the company or what amount, if any, she maintains

might have properly been due.

10. In these circumstances and having regard particularly to the exceptional and wholly unexplained lapse of time since judgment was

entered, it would, in the view of this Court, be manifestly unjust now to deprive the plaintiff of the judgment it had obtained.

11. The motion is denied.