The Default Judgment and the Missing Affidavit
You are instructed by solicitor Mr D for Rookery Ltd, the defendant in a High Court summary summons issued by Precision Tools Ltd claiming €180,000 for goods supplied. The summary summons was served on Rookery on 3 March 2024. Under the Rules of the Superior Courts, an appearance was due within 8 days. No appearance was entered because Rookery's in-house legal manager, Ms E, was on annual leave and the summons was left in a tray. On 2 April 2024, Precision entered judgment in default of appearance for €180,000 plus costs. Rookery only discovered the judgment on 15 May 2024 when its bank account was frozen. Mr D asks you to draft an affidavit and apply to set aside the judgment. Rookery's managing director tells you the goods were defective and that Rookery has a 'good defence' but has not yet produced any documents. He also tells you, in conference, that the real reason for the delay was that 'we thought the summons was a try-on and ignored it.' Mr D wants the affidavit to say the delay was due to 'an administrative oversight beyond the company's control.' The application is returnable on 10 June 2024.
1. What is the legal test on an application to set aside a judgment entered in default of appearance, and what must Rookery show?
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The application is made under Order 13, rule 11 of the Rules of the Superior Courts. The court has a discretion to set aside a regular judgment on such terms as it thinks just. The defendant must show (a) an arguable defence on the merits with a reasonable prospect of success, and (b) a reasonable explanation for the default. The court will also consider whether the application was made promptly after the judgment was discovered, and whether the plaintiff would suffer prejudice that cannot be compensated in costs. Rookery's defence is that the goods were defective, but a bare assertion is not enough; it needs some documents or a witness statement. The explanation is weak: the summons was left in a tray while the legal manager was on leave. The delay from 2 April to 15 May 2024 must be explained. The court may set aside the judgment on terms, such as payment of the judgment sum into court or payment of costs. The strength of the defence and the explanation are both important.
2. Can you draft the affidavit in the terms Mr D wants?
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No. The proposed wording says the delay was 'an administrative oversight beyond the company's control.' That is misleading on the managing director's own account, because he told you the company ignored the summons. You must not draft or settle an affidavit that you know is false or misleading. You should explain to Mr D and the managing director that the affidavit must be truthful and that a false affidavit could expose the deponent to contempt and perjury, and would damage the company's credibility. You can draft an affidavit that states the facts candidly: the summons was received, it was overlooked during the legal manager's leave, and the company did not appreciate its significance. You should also set out the defence to the claim and exhibit any documents. If the client refuses to swear a truthful affidavit, you must decline to act in the application.
3. The MD says he will sign whatever is needed to get the bank account unfrozen. What should you do?
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You must not assist him. Explain that signing a false affidavit is a criminal offence and could lead to imprisonment, as well as the dismissal of the application and a costs order. The court may also refer the matter to the Director of Public Prosecutions. You should advise him to take independent legal advice if he does not accept your advice. You should not continue to act in the application if he insists on a false affidavit. You may return the brief and tell Mr D that you cannot act. You must not disclose the client's admission to the court or to Precision, because it is privileged. The duty to the court and to the administration of justice overrides the client's instructions to mislead. If the MD later agrees to a truthful affidavit, you can draft it and proceed.