Can you enter judgment in default when the defence is served late?
In Clements Smith v Berrymans Lace Mawer Service Co. & Anor  EWHC 1904 (QB) Master McCloud considered the issue of whether a judgment entered after a defence had been filed late was a regular judgment. Permission was given to appeal directly to the Court of Appeal on this issue. The judgment mentions a possible rule change. This case supports the view that a default judgment is not regular if it is made after the defendant has filed a defence, even if the defence is served late.
New Debt Recovery Pe-Action Protocol in force from 1 October 2017:
The Protocol applies to a business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader). It does not apply to business to business debts, so will not apply where a creditor is seeking to recover liabilities from a company or LLP. However, it will apply where a creditor seeks to recover a debt due under a guarantee from an individual.
Illott v. Mitson - March 2017:
There have been a number of legal cases in this area in recent years. One of the most notable is that of Ilott -v- Mitson. The case concerned the estate of the late Melita Jackson who died in 2004 and her estranged daughter Heather. Heather hadn’t been in touch with her mother since she left home at 17, 26 years previously, and who was excluded from her late mother’s Will. The daughter made a claim against Melita’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision.
Heather was awarded £50,000 by the District Judge. After various appeals, in 2015 the Court of Appeal set aside the award and substituted an award of £143,000 to enable Mrs Ilott to buy her council house, the reasonable expenses of purchasing the property, plus a lump sum of £20,000. permission to appeal to the Supreme Court was granted on 1 March 2016.
On 12 December 2016, the Supreme Court heard the appeal and it delivered its judgment on 15 March 2017. The Supreme Court allowed the appeal and re-instated the award of the District Judge of £50,000.
The Supreme Court highlighted the significance of testamentary freedom when considering these types of cases. It held that maintainance does not extend to "any or everything which it would be desirable for a Claimant to have". An adult child with income and in comfortable circumstances therefore will not have a need for maintenance. Although each case will depend on its own merits, the Judgment does make it difficult for adult children who are in confortable circumstances to bring a claim.