Samara v MBI & Partners UK Ltd & Anor
2014
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
- MR JUSTICE SILBER
Areas of Law
- Civil Procedure
2014
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
AI Generated Summary
The case deals with whether the application to set aside a default judgment was affected by recent amendments to the Civil Procedure Rules (CPR). The First Defendant argued the contract was fraudulent and the claim was statute-barred, but the court held that the application to set aside the judgment was not made promptly. The appeal was dismissed, reinforcing the importance of prompt action and the applicability of new CPR rules to all cases.
Judgment
MR JUSTICE SILBER:
I. Introduction
By an order dated 23 July 2013, Master Fontaine declined to set aside a default judgment entered by Mr Samir Samara (“the Claimant”) against MBI & Partners U.K. Limited (“the First Defendant”). The First Defendant sought to appeal. Permission to pursue its appeal was given by Bean J after it had been refused on paper by Openshaw J.
This appeal raises an issue as to how, if at all, the Court’s attitude to applications to set aside a judgment entered in default have been altered by the proposals made by Sir Rupert Jackson and the subsequent consequential changes to the CPR. I will also consider the position under the pre-existing rules.
This claim has become part of a substantial dispute between the parties because the First Defendant has also made an application after the hearing in front of the Master but which is not before me to have the Claimant’s claim struck out as an abuse of process. Its first ground is that the alleged contract relied upon by the Claimant is a fraudulent claim; while its second ground is that there was no such agreement between the parties for the employment of the Claimant by the First Defendant pursuant to the contract, which was the subject-matter of the claim and which led to the default judgment of Master Fontaine and the unsuccessful application to set aside that judgment from which I am hearing the appeal. On 30 January 2004, Cooke J heard this application and he gave directions so that this claim raised by the First Defendant (“the fraud claim”) will be tried in due course by a High Court Judge. The First Defendant has paid into Court the amount of the judgment debt.
4. In this appeal, I am, in fact, being asked to determine whether the First Defendant should be able to rely in the fraud claim on a limitation defence, which is separate and different from the fraud claim and which was raised in the draft Defence of the First Defendant, but which cannot now be pursued because of the decision under appeal refusing to set aside the judgment.
II. The Nature and History of the Claim
5. The Claimant, who is a national of the United States, entered into two employment contracts with each of the Defendants dated 8 December 2001. In the first agreement (“the AJWA contract”), it was agreed that the Second Defendant would employ the Claimant as General Manager in Saudi Arabia.
6. The second contract (“the MBI contract”) was made between the Claimant and both the Defendants under w