England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 April 2018

DEPUTY MASTER HILL QC:

Introduction

1. By this application issued on 27 February 2018 the Defendant to these proceedings seeks to set aside the order of Master Davison sealed on 19 February 2018 giving default judgment to the Claimant under the provisions of CPR 12.
2. The application came before me on 22 March 2018.   There was insufficient Court time on that day to consider the application not least because there was no bundle of the pertinent materials to support the application, and because it was necessary to interrogate the Court file to try and understand what correspondence there had been between the Defendant and the Court (it having become obvious that the Defendant relied to some degree on such matters).
3. I adjourned the application to 28 March 2018.  By that point the various documents provided by the Claimant and the various documents provided by the Defendant had been collated into respective small bundles, to which had been added certain items of correspondence from the Court file.  Both parties provided written skeleton arguments and made oral submissions. I make these observations about the piecemeal way in which the documentation was placed before me because to some degree, as will become apparent from the judgment that follows, there are issues of fact and evidence which in my view remain incomplete.

The Claimant's claim

4. The Claimant is a company engaged in the installation of driveways, patios and other services of a related nature. The Defendant operates the Bright Steps Nursery.   The Claimant entered into a contract with the Defendant for the latter to install a driveway at the church/nursery property.
5. The Particulars of Claim aver that the contract was dated 4 September 2017.  Appended to the Particulars of Claim is a document purporting to be the contract.  This shows a total contract price of £12,500. The document records that the Defendant had paid a £3,000 deposit, was required to pay £3,000 half way through the works and was then obliged to pay the balance of £6,500 on completion of the works.   The Particulars of Claim state that on completion of the works the Defendant failed to pay £500 to the Claimant in breach of the contract.
6. The Claimant also alleges that a post published or caused to be published by the Defendant on the Claimant's Facebook page on 2 September 2017 was defamatory.  The post in question stated as follows: "This company, DIAMOND SERVICES is fraud.  Please do not be deceived by the positive write ups they've put up on their sites which they made up.  They have just defrauded us of THOUSANDS OF POUNDS. They did one day work and RAN AWAY WITH OUR MONEY.  We are now taking LEGAL ACTION against them by way of LITIGATION".  
7. The Claimant further alleges that a review which the Defendant published or caused to be published on the "Checkatrade" website on 7 September 2017 was defamatory.  This post stated as follows: "The  workman was very aggressive, abusive, deceptive un reliable and a lot more.  He didn't care. He terrorised the staff. Cursing, threatening and abusing them.  The job was very badly done. We will now take legal action. They removed our review from their social media page which I believe makes their reviews are fake and unsatisfied are not reflected.  They took our money and did not carry out most of the work. The work they did was very shabby and poor".
8. The Claimant seeks recovery of the £500 which it is said is owed under the contract, and damages and injunctive relief in relation to the above two allegedly defamatory publications.  Reference is also made in the Particulars of Claim to clause 4 of the document dated 4 September 2017, in which the Defendant is said to have agreed to remove the Facebook post by 4 pm on 8 September 2017.  She is alleged to be in breach of that agreement.
9. The Claimant's position is that the Checkatrade entry was removed by Checkatrade, but the Facebook entry persists.  The Defendant avers that the Claimant has removed the Facebook post (as is alluded to in the Checkatrade post, above; and see further below).
10. I have been provided with a copy of the Claimant's Statement of Loss, prepared pursuant to a further element of Master Davison's order (on the basis that default judgment having now been obtained, the case would proceed to the quantum stage).  The Statement of Loss sets out the heads of claim as being (i) the loss due to the Defendant having not paid all of the contract price for the works undertaken (the £500 referred to above); (ii) general damages for defamation; (iii) £2,950 in special damages, namely the costs incurred by the Claimant by the use of a media management company so as to minimise the damage to its reputation; (iv) losses as a result of cancelled work due to a diminution in the level of trade, allegedly caused by the Defendant's defamatory publications and consequent impact upon the reputation of the Claimant (said to be in the region of £10,000 and continuing); and (v) aggravated damages due to the failure by the Defendant to advance a defence, the lack of apology and the lack of withdrawal of the remarks despite the apparent agreement to do so.

The procedural history

11. The Claimant's skeleton argument prepared for the 28 March 2018 hearing indicates that on 11 November 2017 a letter of claim was sent by the Claimant's solicitors to the Defendant but no response was received to this.
12. The key elements of the later procedural history are set out in a witness statement from Monica Vara, the Claimant's solicitor, which was prepared in response to this application.  
13. Ms Vara states that the Claim Form and Particulars of Claim were issued by the Court on 12 December 2017 and that the Defendant was served with a copy of those documents by first class and registered post dated 22 December 2017, giving a deemed date of service of 28 December 2017. She exhibits to her statement a copy of the letter sent to the Defendant and a copy of the Certificate of Service as filed at the Court to this effect.
14. On the basis of the above date of service the Defendant had until 11 January 2018 to acknowledge the claim.  It is agreed that she did not do so. Accordingly on 18 January 2018 the Defendant applied for default judgment against the Claimant.
15. In the meantime, on the Defendant's evidence, on 22 January 2018 she received for the first time a copy of the letter dated 22 December 2017 serving the proceedings.  She states that it was handed to her by a neighbour to whom it had been mistakenly delivered, on a date unknown to her. On receipt of the letter she wrote to the Court (albeit apparently incorrectly dating the letter 21 January 2018) setting out this account. The letter continued "...we will be employing the services of a legal practitioner to help deal with the claim.  The Claimant has treated us so badly and we will be putting in an application to the Court in defence and for a hearing to take place so that we can produce our evidence".  I have been shown by the Defendant a copy of a receipt from the Post Office confirming postage of a letter to the Court at 12.41 pm on 23 January 2018.  I assume that this relates to the letter dated 21 January 2018. It does not appear that this letter was copied to the Claimant.
16. The Claimant's application for default judgment came before Master Davison on 8 February 2018 and he granted the application.  It is not clear to me whether the Defendant's letter of 21 January 2018 was before him when he did so. The order for default judgment was sealed on 19 February 2018.
17. It appears that the order for default judgment was posted by the Court to the Defendant on or around 19 February 2018.  In response to it, the Defendant sent to the Court a completed Response Pack. This indicated that she intended to defend all of the claim.  She set out at paragraph 3 of the Defence and Counterclaim part of the Response Pack her defence. In summary she stated that the work done by the Claimant had been inspected and found to be uneven and unsafe; that the Claimant company did not complete the job properly; that the workers were abusive, violent and victimising; that they shouted, swore and behaved badly; that all they wanted was the money; that they were bullying; that after they received some payment they "took off" and would not pick up the Defendant's calls; they left the job incomplete and unsafe; and that as a result she had published the comments on Facebook and Checkatrade.  The Response Pack also indicated that the Defendant proposed to bring a Counterclaim because the work had not been done adequately. She stated that she sought recovery of the costs of the work, damages, and professional/legal costs and matters of that nature. I have been shown by the Defendant a copy of a receipt from the Post Office confirming postage of a letter to the Court at 4.48 pm on 22 February 2018. I understand this reflects postage of the Response Pack.
18. The Response Pack was not properly signed and dated by the Defendant.  The Court file indicates that it was received by the Court on 23 February 2018, and that on 3 March 2018 the Court wrote to the Defendant returning the Response Pack to her and inviting her to date it.  She duly returned the Response Pack to the Court, having backdated it to 22 February 2018. The Court file indicates that the signed Response Pack was received by the Court on 8 March 2018.
19. It does not appear that the Response Pack was sent to the Claimant by either the Defendant or the Court.  The Claimant's counsel was provided with a copy during the 22 March 2018 hearing.
20. The Defendant issued the application to set aside the default judgment on 27 February 2018.  

The Defendant's submissions

21. The Defendant's submissions were set out in the application notice, a detailed email to the Court dated 22 March 2018, a skeleton argument for the hearing on that date and a further skeleton argument for the hearing on 28 March 2018.  These were developed orally before me.
22. The Defendant repeated that she had not received the original letter from the Claimant's solicitor dated 22 December 2017 until she was handed it by a neighbour on 22 January 2008, as per her letter to the Court of 21 January 2018.
23. The Defendant suggested that the Claimant's letter had deliberately been sent at a time when the Claimant knew that the school would be closed for Christmas. She also raised doubts about whether the Claimant's letter dated 22 December 2017 had in fact been posted on that date.  She implied that the Claimant had deliberately sent the documents late to deny her the ability to respond in time.
24. The Defendant also stated in her witness statement that sometimes the postman does make mistakes and wrongly delivers their post to the church next door.  She said that as they are a church the staff are not there all the time, and effectively that this may explain the delay in her receiving the letter.
25. In the application notice, the Defendant referred to a letter from the Court on 19 February 2018 "telling me to acknowledge service of the claim which we did on 22nd Feb 2018".  It appears that the Defendant is here referring to the copy of the order for default judgment itself, rather than a letter indicating that she should acknowledge service of the claim (judgment already been entered against her by this point).  The order for default judgment includes the usual recital that the basis for the order was "No acknowledgement of service having been filed by the defendant".  It is likely that that is what the Defendant was responding to when she submitted the Response Pack.  
26. The Defendant also stated that the Claimant had not put her on notice of the application for default judgment before the order was made by Master Davison.
27. The Defendant effectively argued that on receipt of correspondence on the claim - both the letter from the Claimant dated 22 December 2017 (received by her on 22 January 2018) and the order from the Court dated 19 February 2018 - she had reacted promptly.
28. The Defendant also argued that she had a real prospect of successfully defending the claim.
29. She provided a witness statement in which she suggested a different version of events to that advanced by the Claimant. She said that the agreement between the parties was reached in August 2017, and the document dated 4 September 2017 was a later one only prepared when problems had started to arise with the work.  She said that it had been agreed that the works would be done on 30 August 2017 and that it was understood that she needed the work done prior to the resumption of the term after the summer holiday on 12 September 2017. In her witness statement she set out further details of the difficulties caused by the behaviour of the Claimant's team leader named Simon and the deficiencies in the work the company did.  She said in her email to the Court that the Facebook comment was true and accurate, and that also appeared to be her position on the Checkatrade post. She further suggested that the Claimant had already removed the Facebook comments.
30. The Defendant also placed reliance on a witness statement from Teju Ogunkoya. He holds a B.Eng degree in Civil Engineering and an MSc. degree in International Construction Management and Engineering and works at the nursery.  He asserted in his statement that the agreement was reached with the Claimant on 29 August 2017 and that the agreement was for the work to be completed by 8 September 2017. He also set out the difficulties in the relationship with the Claimant company and indicated that he sent a series of emails expressing his concerns about the work.  He exhibited those emails to the statement together with the Claimants responses.
31. She also referred to an independent expert report provided by Adam Mazalla-Tomlinson, a Chartered Surveyor of Templar Consultants. This report, dated 20 March 2018, was based on an inspection of the Claimant's work carried out on 16 March 2008.  At section 4 of the report, several criticisms were made of the work, with the conclusion that "the standard of workmanship was poor and thereby there has been a lack of reasonable care and skill".  Recommendations were made about remedial works.  Several photographs were attached to the report.
32. Overall the Defendant stressed the incompleteness and poor quality of the work done by the Claimant and the risk to the safety of the children, parents and visitors to the nursery caused by it. She relied on her rights to a fair trial under Article 6 of the European Convention on Human rights, and thus argued that she should be entitled to defend the claim.

The Claimant's submissions

33. The Claimant's submissions were set out in the statement from Ms Vara, written skeletons argument prepared for each of the 22 and 28 March 2018 hearings, and in oral argument.
34. At paragraph 6 of Ms Vara's witness statement she cast doubt over the Defendant's account that she had not received the letter dated 22 December 2017 at that time.  Ms Vara noted that the address for service on the Claimant's letter of 22 December 2017 is the same address that the Defendant has provided on her application notice and that is correct.
35. At paragraph 7 of her statement Ms Vara referred to having carried out some basic searches of the Defendant's address on Google Maps.  She provided the Court with a copy of a photograph from Google Maps which it is said suggests that the Defendant's premises are adequately signposted.  Ms Vara therefore suggest that it is hard to see how there could have been any difficulties with service of the claim on the Defendant.
36. The Claimant argues that the Defendant does not satisfy the requirements for CPR 13.2, such that the Court is required to set aside default judgment.
37. Accordingly it is said that the only basis on which the Defendant can bring her application is CPR 13.3, which gives the Court a discretion to set aside default judgment.
38. Under CPR 13.3(1)(a) the Court has a discretion to set aside default judgment if the Defendant has "a real prospect of successfully defending the claim".  The test to be applied to that issue is analogous to the "no real prospect test" in CPR 24.2. The Claimant's counsel relied on Redbourn Group Ltd v Fairgate Development Ltd [2017] EWHC 1223 (TCC), in which at paragraph 23 Coulson J repeated the well-known exposition of the proper approach as set out in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at paragraph 15. At paragraph 24 Coulson J held that "although the Court must be careful not to embark on a detailed 'mini-trial', it ought to test the assertions being made by the party seeking, in this case, to set aside judgment, to see if they have any real substance, and/or whether they are contradicted by contemporaneous documents. It is also necessary to see whether a further opportunity to put in further evidence and/or documents would or could make any difference".
39. The Claimant's position as set out in the skeleton argument for the 22 March 2018 hearing, prepared before sight of the Response Pack, was that the Defendant had no real prospect of successfully defending the claim.  It was said that the allegations made in the Facebook and Checkatrade posts were serious, damaging and untrue and that the Defendant had not set out any Defence to them, let alone one that was not only arguable but which had a real prospect of succeeding.
40. The Claimant's position as set out in the skeleton argument for the 28 March 2018 hearing, prepared when the Response Pack and further information provided at the 22 March 2018 hearing had been considered, remained that the Defendant had no real prospect of successfully defending the claim. The Claimant provided me with further contemporaneous material, albeit acknowledging that this was not a complete history of the correspondence between the parties. The Claimants' arguments under this heading can be summarised as follows:

(i) In addition to the correspondence provided by both parties, the Defendant had produced two witness statements and an expert report and it was hard to see what more might be forthcoming;

(ii) Where the Defendant appeared to have suggested in email correspondence dated 2 September 2017 that the agreement was to the effect that all the works would be completed for the sum of £200, this was clearly inconsistent with the contemporaneous documentation;

(iii) The Defendant appeared to have accepted making at least the Facebook post in order to try and engage the Claimant in negotiation and not for any other purpose;

(iv) The Defendant's allegation that the Claimant had engaged in fraud and deceit, by posting false reviews to garner business, was not borne out by the documentation the Defendant had provided;

(v) The expert report shows that the Claimant did in fact do extensive work at the Defendant's property which undermines her assertion that Simon was "never there";

(vi) The Defendant's actions in making a series of staged payments, paying all the contracted sum save for £500, is not consistent with the work being "shabby";

(vii) The Defendant has failed to provide contemporaneous photographs of the work done by the Claimant despite being asked to do so; the photographs appended to the expert report were taken some 6 months after the work was done; and they illustrate no more than insignificant wear and tear or "snagging" issues;

(viii) The Defendant's allegations of bullying by the Claimant were inconsistent with the latter having offered to consider remedial works;

(ix) The conclusion of the expert report to the effect that the entire pavement and driveway should be lifted due to presumed insufficient or inconsistent sub-base was not tenable;

(x) In any event dissatisfaction with the costs of the works and an attempted renegotiation are no defence to the defamatory comments made;

(xi) As to the counterclaim no Court fee had been paid and it remained unquantified.

41. Alternatively, CPR 13.3(1)(b) provides the Court with a discretion to set aside an order for default judgment if it appears to the Court that there is some other good reason why (i) the judgment should be set aside or varied; or (ii) the defendant should be allowed to defend the claim.  Under CPR 13.2 in considering whether to set aside or vary a default judgment, the matters to which the Court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
42. The Claimant's position as set out in the skeleton argument for the 22 March 2018 hearing was that the Defendant has offered no good reason why the order of Master Davison should be set aside or varied, and no good reason why she should be allowed to defend the claim. This remained the Claimant's position at the 28 March 2018 hearing.
43. The Claimant's counsel referred to Gentry v Miller [2016] EWCA Civ 141.  At paragraph 24 of that judgment, Vos LJ made clear that the first issue that arises on an application to set aside default judgment is consideration of the express requirements of that rule.  However, Vos LJ continued by indicating that since the application is one for relief from sanctions, the well-known tests set out in Denton v TH White Limited [2014] 1 WLR 3926 apply.  In this context, Vos LJ stated that the first Denton issue of whether there has been a serious or significant breach applies not to the delay after the judgment was entered but to the default in serving acknowledgement that gave rise to the sanction of default judgment in the first place.  The second Denton issue of why the failure occurred then applies, together with the third test of a consideration of all the circumstances of the case. However, the question of promptness in making the application arises both in considering the requirements of CPR part 13.3(2) and in considering all the circumstances under the third Denton stage.
44. Applying those principles, the Claimant argues that the Defendant had not acted promptly. She had not replied to the letter of claim at all. If she had received the claim on 22 January 2018 as alleged, she did not respond until 23 February 2018.  She must have received the default judgment order of 19 February 2018 shortly thereafter, but did not apply to set it aside until 27 February 2018. She has not instructed lawyers despite saying more than once that she would. The tone of her stance has been "combative". Overall therefore the application should be dismissed.
45. In Redbourn, an application to set aside default judgment was dismissed. Coulson J concluded that the Defendants had had "repeated opportunities to set out their defence and their positive case on the alleged repudiation which, even at the eleventh hour, they have failed to take". This, he said, "inevitably casts doubt on the credibility of their entire defence and counterclaim" and "also [went] to the question of whether or not [they] should be granted a further opportunity to put in more evidence and/or documents". They had had "over a year to get a coherent case together" on the key issue but the material that they had been able to produce was "wholly unpersuasive". There had also been changes in personnel within the company which meant that there was no longer anyone working there who could assist in the defence of the claim. Overall the delays and absence of any detailed evidence from those involved at the material time "strongly suggest[ed]" that the Defendants did not have a defence with a realistic prospect of success (see paragraphs 26-30 of the judgment).

Discussion and conclusions

46. As indicated above the procedure for setting aside or varying a default judgment is set out in CPR 13. This provides both mandatory and discretionary grounds for an order setting aside default judgment.

(i) The mandatory grounds

47. CPR 13.2 provides in material part as follows:

"13.2  The Court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;…or

(c) the whole of the claim was satisfied before judgment was entered".

48. CPR 12.3(1) provides thus:

"12.3(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired".

49. CPR 12.3(3) provides thus:

"12.3(3) The claimant may not obtain a default judgment if –

(a) the defendant has applied –

(i) to have the claimant's statement of case struck out under rule 3.4; or

(ii) for summary judgment under Part 24,

and, in either case, that application has not been disposed of;

(b) the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment".

50. In this case Master Davison made the order giving default judgment on 8 February 2018 and it was sealed on 19 February 2018. As at that date the Defendant had not filed an Acknowledgement of Service. I am satisfied that as at that date the time for her to have done so had expired: I accept that the deemed date of service of the claim was 28 December 2017 and thus that the Defendant had until 11 January 2018 to file her Acknowledgment of Service. On that basis the provisions of CPR 12.3(1) were satisfied.
51. At no point has the Defendant applied to have the Claimant's case against her struck out or for summary judgment to be entered in her favour. In her submissions the Defendant suggested that she had "satisfied" the claim against her such that her case fell within the provisions of CPR 12.3(3)(b). However it is clear to me that she means by this that she considers she has a valid defence to the claim, and that she has not satisfied the claim applying the sense of the word used in CPR 12.3(3), ie. she has not paid the monies, and provided the other relief, sought by the Defendant. On that basis the provisions of CPR 12.3(3) were satisfied.
52. Accordingly I agree with the Claimant that this is not a case where the mandatory provisions in CPR 13.2 apply, and insofar as the Defendant put her application on this basis (which in fairness she only did very briefly), it is dismissed.

(ii) The discretionary grounds

53. CPR 13.3 provides in material part as follows:

"13.3(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly".

13.3(1)(a): A "real prospect of successfully defending the claim"

54. I turn first to the issue of whether the Defendant has a real prospect of successfully defending the claim, under CPR 13.3(1)(a).
55. In approaching this issue I remind myself that the test to be applied to this issue is analogous to the "no real prospect test" in CPR 24.2 and that the approach to be applies is that set out in Redbourn and Easyair (see above).
56. The first of the Claimant's claims is for the outstanding £500 of the contract sum. A Chronology provided by the Defendant refers to a series of payments which total £12,000 and thus it appears agreed that there was a shortfall from the £12,500 said to be the contract sum. However on the evidence before me, there remains some uncertainty as to what the contract terms were, given that the Defendant does not accept that the 4 September 2017 document represented what was initially agreed. Moreover insofar as the Defendant is found to have withheld £500 of the contract sum, my understanding is that her response to this is likely to be that she was entitled to do so, as the work was sub-standard. Given the material before me and in particular given the critical report from Mr Mazalla-Tomlinson, I cannot say that the Defendant has no real prospect of proving at trial that the work was indeed sub-standard.
57. The second of the Claimant's claims relates to the Facebook and Checkatrade publications which the Defendant accepts making. However, she has made it abundantly clear in her submissions to me that she made the statements as she believed them to be true. Accordingly, although she has not labelled it as such, it appears to me that she is advancing a defence of truth under the Defamation Act 2013: under s.2(1) of that Act, it is a defence to a claim for defamation for a Defendant to show that the imputation conveyed by the statement complained of is "substantially true". Accordingly, here, the issue is whether I can say that the Defendant has no prospect of proving at trial that the contents of her Facebook and Checkatrade posts were not substantially true.
58. I consider that whether the contents of the Facebook post on 2 September 2017 - to the effect that the Claimant company had fraudulently taken the Defendant's money and done just one day's work, and posted incorrect reviews on its website – were substantially true are not issues that I can properly determine on a summary basis. They will require assessment of the credibility and veracity of the witnesses, when considering all of the contemporaneous material and not the partial "pot" of documents I have been taken to. I cannot say on the basis of the material currently available that the Defendant has no prospect of succeeding in such an argument.
59. Similarly, I conclude that whether the additional contents of the Checkatrade post on 7 September 2017 - to the effect that the Claimant's workman had been aggressive, abusive etc; that the Claimant had done poor work; and that the Claimant had removed the Defendant's Facebook post – are again in my view matters for trial. Specifically, it seems to me that (i) allegations about aggressive, abusive behaviour etc in this context are eminently ones that can only be determined when assessing the witnesses' evidence; (ii) as I have said above in the context of the breach of contract claim, given the material before me and in particular given the critical report from Mr Mazalla-Tomlinson, I cannot say that the Defendant has no real prospect of proving at trial that the Claimant's work was indeed sub-standard; and (iii) there is a stark factual dispute as to whether the Claimant has removed the Defendant's post from the Facebook page that cannot be resolved at this stage.
60. Generally, I consider that for me to seek to determine many of the points on the evidence made by the Claimant, as summarised at paragraph 42 above, would be to descend into the sort of "mini-trial" which is not appropriate on an application of this nature. I do not consider that the evidence is as clear cut as the Claimant indicates.
61. Accordingly I conclude that the Defendant's application to set aside default judgment should succeed under CPR 13.3(1)(a), because she has a real prospect of successfully defending the claim.

13.3(2): Promptness

62. I turn now to the issues of promptness, and the Defendant's conduct more generally, as these have featured heavily in the Claimant's submissions, and I am specifically required to have regard to promptness under CPR 13.3(2), as considered in Gentry/Denton.
63. Having considered all the material placed before me I am satisfied that the first the Defendant heard of the claim was when her neighbour provided her with a copy of the Claimant's solicitor's letter of 22 December 2017, on 22 January 2018. Her actions thereafter suggest to me that had she received the letter of claim dated 11 November 2017, or the 22 December 2017 letter any earlier, she would have responded promptly. The fact that she did not so react in my view gives credibility to her evidence as to when she first received notice of the claim. Her evidence that her neighbours are a church and those involved in it are not there every day provides a potential explanation for the delay between the date on which the 22 December 2017 letter was received and 22 January 2018. (I note that the Claimant's pleaded case is that the Defendant herself is a Reverend at the church but no point was taken on this in submissions). I am not satisfied that the Claimant's solicitor deliberately sent the letter over the Christmas period knowing that the Defendant would not be there, or deliberately posted it after 22 December 2017 to make it hard for the Defendant to respond in time.
64. The Defendant clearly acted promptly once she received notification of the claim on 22 January 2018: she wrote to the Court the very same day (albeit that she should have copied this to the Claimant's solicitor).
65. The Defendant told me that on receipt of the claim on 22 January 2018 she understood that she had to respond to it within 28 days. I accept that she thought this, but she was incorrect. Under CPR 10.3 the general rule is that on receipt of a Claim Form and Particulars, the period for filing an Acknowledgment of Service is 14 days. However the front page of the Response Pack and the Acknowledgment of Service form itself do not refer to the 14 day limit. What they say is that if, having filed an Acknowledgment of Service, no Defence follows within 28 days, judgment against the Defendant can be obtained. It may be that that is the source of the Defendant's confusion here (albeit that the Notes for the Defendant attached to the Claimant do refer to the correct 14 day time limit for an Acknowledgment of Service).
66. The Defendant sought to respond to the claim within 28 days, as she submitted the unsigned Response Pack on 22 February 2018. She also retained the receipt from the Post Office and so was clearly taking steps to ensure she could prove compliance with the rule.
67. I am satisfied that the Defendant acted reasonably promptly in providing her Response Pack when she did, albeit that she did not act within the 14 day limit for an Acknowledgment of Service provided by CPR 10.3; and albeit that as the Response Pack was received by the Court on 23 February 2018, this was still 1 day outside the 28 day period she thought was applicable.
68. The Defendant received the order for default judgment shortly after 19 February 2018. Her application to set it aside was issued on 27 February 2018. I consider that in this period of time the Defendant also acted promptly.
69. Overall therefore I am satisfied that the Defendant has made an application to set aside judgment promptly for the purposes of CPR 13.3(2) and that she has acted promptly on receipt of notice of the claim in the more general sense considered in Gentry.
70. Applying the first of the Denton issues, as considered in the context of an application to set aside default judgment in Gentry, the breach here was the Defendant's failure to file an Acknowledgment of Service before 11 January 2018. As I have found that she was unaware of the obligation to do so, her breach cannot properly be characterised as a serious or significant one, especially as the effects of it have now been corrected by the provision of the Response Pack to the Claimant.
71. As to the second Denton issue, I am satisfied that the fact that the Defendant did not receive notification of the claim in the time required explains her failure to respond in time.
72. As to the third Denton issue - all the circumstances of the case – in my view these militate in favour of me exercising my discretion in the Defendant's favour. In my assessment the overall circumstances are different to those present in Redbourn.
73. Accordingly, I am satisfied having considered the issue of promptness under CPR 13.3(2), and the Gentry/Denton principles, that the Defendant's application to set aside default judgment on the discretionary grounds should succeed.

13.3(1)(b): "Some other reason"

74. In case I am wrong in my approach to CPR 13.3(1)(a), I have gone on to consider whether there is some other reason why the default judgment should be set aside or the Defendant should be allowed to defend the claim, under CPR 13.3(1)(b).
75. Having done so it seems to me relevant that the Defendant has commenced a counterclaim which is factually interlinked with the Claimant's claim. I found the argument advanced (albeit lightly) by the Claimant that the default judgment on the Claimant's claim somehow precludes the Defendant from advancing her counterclaim hard to follow. However even if that analysis was correct (and I am not persuaded that it is) there would be nothing to stop the Defendant from bringing a fresh claim against the Claimant in the same terms as her counterclaim. On that basis a Court is likely in any event to have to consider the issues that underpin the Claimant's contract/defamation claim, namely whether the Claimant's work and conduct was as the Defendant alleged in her posts or not. When that is considered, it seems to me that this provides a further reason why the default judgment should be set aside or the Defendant should be allowed to defend the claim, under CPR 13.3(1)(b).
76. Accordingly, for all these reasons the Defendant's application to set aside default judgment succeeds.