CASE STUDY 2
Simon Burn Solicitors successfully set aside judgment
We have successfully set aside a judgment obtained against Ben Brafman in the Companies Court, by AIM listed insolvency litigation funders Manolete Partners Plc.
Manolete purchased claims from the liquidator of a company which had gone into liquidation. The Mr Brafman was the director of that company. The claim related to money which the liquidator said the defendant owed to the company.
A letter was sent to the defendant at an old address in 2016. It did not reach him and was returned to sender.
A further letter was sent to another address and the Mr Brafman emailed to say that he would provide a response.
A claim form was then issued to the second address in 2019. Mr Brafman emailed a non-executive director of Manolete to explain that he didn’t live at that address and provided his current address.
A hearing was scheduled, and Manolete applied for a default judgement because no defence had been filed. The notice of hearing was sent to the first address, despite the fact that the defendant had made it clear that he didn’t live there.
As a result of him not receiving the notice of hearing, the defendant didn’t attend the hearing in November 2019 and the default judgment was granted, conditional on the claimant filing certificates of service. The certificate was filed incorrectly, showing service at the second address.
The defendant submitted that he had not been given notice of the hearing and made an application to set aside under CPR r.13.3, on the basis that he had not been properly served. Manolete argued that the defendant had failed to file a defence against the claim which was compliant with the CPR.
The case was heard by Judge Barton at the Chancery Division (Companies Court) on 25 March 2021.
Mr Brafman’s application was granted on the grounds that he had informed the Manolete that he didn’t live at either of the two addresses. As a result, the Manolete had no reason to believe that the court documents would have come to the defendant’s attention.
Manolete had made no effort to ensure the documents came to the defendant’s attention, despite the fact that he had given his updated address to the claimant’s director and stated his intention to defend.
The court set aside the judgment and the defendant would need to file a defence to comply with the CPR.
We acted for Mr Brafman with the assistance of Counsel, Crispin Hayhoe.
