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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Leadingway Consultants Ltd v Saab & Anor [2025] EWCA Civ 582 (09 May 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/582.html Cite as: [2025] EWCA Civ 582

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BUSINESS AND PROPERTY
COURTS OF ENGLAND AND WALES
KINGS BENCH DIVISION
COMMERCIAL COURT
MR JUSTICE ROBIN KNOWLES CBE
CL-2021-00736

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 May 2025

This judgment was handed down remotely at 2 pm on Friday 9 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives .............................

Lord Justice Phillips:

1. By his order dated 17 June 2024 Knowles J ("the Judge") granted the second defendant relief from the sanctions imposed for non-compliance with an order made by Foxton J on 29 November 2023 ("the Unless Order"). The sanctions were the barring of the second defendant from challenging the jurisdiction of the court and from defending the claim. The consequence of the granting of relief was that an application by the claimant for judgment in default against the second defendant was dismissed.
2. By the same order the Judge set aside judgment in default which had been entered against the first defendant on 4 August 2023 and extended his time for challenging the jurisdiction of the court.
3. The claimant appeals both of those decisions with permission granted by Males LJ.

The essential facts

The claim

4. By two written placement agreements, one in 2012 and the second in 2014, the claimant lent a total of €35 million to a company named Saab Financial (Bermuda) Ltd ("the Company"). The Company was owned and controlled by the first defendant and his brother, Fadi Michel Saab ("the Saab brothers").
5. By order of the Supreme Court of Bermuda dated 21 April 2017 joint provisional liquidators were appointed to the Company.
6. The claimant's case, in outline only, is that in 2017 the Saab brothers agreed, both orally and in writing, that in exchange for the claimant refraining from asserting creditor status in the liquidation of the Company, they would personally procure that the sums due to the claimant would be paid in full by no later than 1 September 2019.
7. The claimant asserts that it fulfilled its side of the bargain by not proving in the Company's liquidation, but that the Saab brothers did not procure payment of the sums outstanding by 1 September 2019 or at all. The claimant claims damages for breach of the alleged agreement, joining the second defendant, the son of Fadi Michel Saab, as representative of his father's estate following his father's death in 2020.

The procedural history

8. The proceedings were served personally on the first defendant in Cyprus on 24 March 2022. As no acknowledgment of service or defence had been filed by the deadline of 25 April 2022, on 4 August 2022 Jacobs J granted default judgment against the first defendant for €45m. That judgment was served personally on the first defendant on 26 August 2022.
9. Service on the second defendant took far longer, requiring three extensions of the validity of the claim form and involving four unsuccessful attempts at service by a court registered bailiff in Cyprus. Following an order permitting service by alternative means, the second defendant was formally served by transmission of the documents via LinkedIn and Facebook and delivery by bailiffs to a partner at a law firm in Nicosia ("GZG") which has represented the defendants in proceedings in Cyprus. Service was deemed to have been effected on 30 August 2023.
10. On 18 September 2023 an acknowledgment of service was filed on behalf of the second defendant stating an intention to challenge jurisdiction. The second defendant then had until 16 October 2023 to make an application in that regard. Thereafter, at the request of Signature Litigation LLP ("Signature") on behalf of the second defendant (although Signature had not served a notice of acting), the claimant agreed to extensions of time to file its application to 31 October 2023 and then to 13 November 2023, the latter being the maximum extension which could be agreed without court approval.
11. When the second defendant applied for a further extension by application notice dated 13 November 2023 (again with informal assistance from Signature), the claimant agreed to the grant of the extension, but on terms that if the second defendant failed to file a jurisdiction challenge within 21 days of the proposed order, he would be debarred from challenging jurisdiction and from defending the claim. The second defendant agreed to those terms.
12. On 29 November 2023 Foxton J made the Unless Order in the form agreed between the parties, providing as follows:

"Unless the Second Defendant files an application pursuant to CPR Part 11 disputing the Court's jurisdiction within 21 days, by 4.30pm, of the date of this order the Second Defendant will be barred from filing any application to dispute the Court's jurisdiction and/or defending the Claim and the Claimant will be entitled to apply for Judgment in default without further order of the Court."

13. Although the Unless Order was dated 29 November 2023, it was stamped with the court seal on 30 November 2023, that date showing prominently in the seal at the top right of the document.
14. The 21 days from the date of the Unless Order expired on 20 December 2023 at 4.30pm, but without the second defendant filing an application as required. The barring provision therefore came into effect and the claimant was entitled to apply for judgment in default.
15. The second defendant attempted to file an application notice challenging the jurisdiction on 21 December 2023, one day out of time, and Signature filed a notice of acting that day. A partner of Signature subsequently explained that the failure to comply with the Unless Order:

"…arose due to an innocent mistake by a member of the team in counting the days for compliance from the date of the seal on the unless order, rather than the date of the order itself…"

16. The application notice of 21 December 2023 also contained an application by the first defendant to set aside the default judgment against him and a challenge to the jurisdiction by him.
17. After the claimant's solicitors pointed out that the second defendant's application was out of time and that he was now debarred, the second defendant issued a further application dated 29 December 2023, seeking an extension of time for filing his application until 21 December 2023. The claimant responded with its own application dated 5 January 2024 for judgment in default against the second defendant.

The defendants' evidence

18. The first defendant's evidence was that he "vaguely" recalled being served with the claim form in March 2022, but that he was "extremely busy with four ongoing litigation matters" in Cyprus. Combined with his responsibilities as carer for his daughter, the administrative burden on him at the time had been considerable and he "must not have realized the importance of the court documents". After the proceedings had been served on GZG (by way of service on the second defendant) on 24 August 2023, that firm brought them to the first defendant's attention. He then sought to instruct UK solicitors and counsel, but restrictions on overseas transfer of his funds in Lebanon (where he keeps the majority of his liquid assets) delayed his engagement of Signature until shortly before his application was filed on 21 December 2023.
19. The second defendant said nothing in his evidence about the difficulties the claimant experienced in serving him with proceedings but explained that the extensions of time for filing an application to contest the jurisdiction were needed "due to difficulties my uncle and I experienced in retaining solicitors and Counsel in England". As referred to above, the evidence as to the reason for missing the deadline for filing that application was subsequently given by a partner of Signature.

The Judge's reasons

20. The Judge delivered separate ex tempore judgments immediately after each application was heard, the first dealing with the position of the second defendant and the second with that of the first defendant. He then heard the challenge to the jurisdiction made by both defendants and delivered a judgment rejecting it. There is no appeal by the defendants from that further decision.

The reasons for granting relief to the second defendant

21. Although the Judge did not expressly refer to the authority, it is plain that he approached the second defendant's application in three stages as mandated by Denton and others v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926.
22. As to the first stage, identifying and assessing the seriousness and significance of the non-compliance, the Judge recognised at [4] that the Unless Order was not imposed following previous breaches, but did follow previous extensions. The second defendant's failure had not had a high degree of disruptive effect. But given that the non-compliance was with an Unless Order, "the better approach is to treat this as a matter of seriousness or significance and thus to proceed to the further stages".
23. In relation to the second stage, the reason for the default, the Judge recorded at [5] that it was inadvertence and mistake. Although he again did not spell it out, it is well established that well-intentioned incompetence, for which there is no good reason, should not usually attract relief from a sanction unless the default is trivial: Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 at [48].
24. The third stage identified in Denton is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application, including in particular the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders.
25. In that regard, the Judge started by acknowledging at [7] that the inadvertent mistake was one where those involved in issuing the application pursuant to CPR Part 11 "were trying to get the timing right".
26. At [8] the Judge expressed concern at the limited evidence from the second defendant as to the history of the matter, allowing the point to be made that he had not assisted in making arrangements for service. The Judge also noted that the second defendant appears to have left things to the first defendant, despite knowing that the first defendant faced difficulties both in terms of care responsibilities and finance.
27. The Judge concluded at [9], however, that notwithstanding his concerns, and looking at all the circumstances of the case, he could not accept that they led to a conclusion that a just approach was to refuse relief from sanctions.

The reasons for setting aside judgment against the first defendant

28. The Judge identified that the relevant rule was CPR 13.3, sub-rule (1) which provides that the court may set aside or vary a default judgment 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."

29. The Judge further noted that sub-rule (2) provides that, in considering whether to set aside or vary a judgment in default:

"…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".

30. The Judge first addressed the question of whether the first defendant had an arguable defence to the claim, noting that the claimant accepted that there was such a defence to the alleged oral agreement [2] and determining that there was also an arguable defence to the alleged written agreement [3-4]. The claimant does not challenge those findings on this appeal. The Judge rejected, in passing, the further contention by the first defendant that the fact that the claim would proceed against the second defendant was a good reason to set aside judgment against the first defendant [5].
31. The Judge then turned to consider the Denton principles, first noting that the first defendant recognised that the delay by the first defendant was serious or significant [7], and that he also did not contend that there was a good reason for the delay [8].
32. The Judge therefore arrived at the stage of considering all the circumstances in the search for what is a just approach [9]. He did not regard the reasons for the delay as having any real weight over the period of time involved, and did not find "much mitigation" in what was said.
33. The Judge did, however, find it relevant at this third stage that the proceedings would continue against the second defendant in any event, stating that:

"11…[L]ooking at this litigation as a whole and the parties and their dealings as far as presented to me on the evidence and argument, with the default judgment there was no real sense of the proceedings or the dispute as a whole being over.

12. There may be, of course, cases where the sense of finality is a very real one and where it is only fair and important for rigour of the system to support that, but not I think in the present case…

13. However, I must weigh all of the circumstances with the benefit of what I have read and heard and bring that into the discretion that I have to exercise. I absolutely keep in mind that, in the present case, the person seeking to set aside the judgment did not make an application promptly but, nonetheless, what justice requires, in the present case, is to set aside the default judgment allowing the real issues in the present case for both defendants to go forward to a decision on the merits…"

The appeal against the grant of relief to the second defendant

34. The claimant argued that the Judge erred in the exercise of his discretion in five respects.
35. First, it contended that the proportionality of the sanction in the Unless Order must be taken as read, both because it must be assumed to have been so determined by Foxton J when making the order, but also because the order embodied an agreement of the parties that failure to comply would have the stipulated consequence. To the extent that the Judge considered that the sanction was an unjust consequence of non-compliance he was impermissibly, the claimant contends, re-opening the question of proportionality.
36. I see no merit in this argument. The claimant relies, for the proposition that Foxton J must be assumed to have considered the proportionality of the sanction in the Unless Order, upon the dictum of Moore-Bick LJ in Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463 at [36] that before making an unless order "the judge should consider carefully whether the sanction being imposed is appropriate in all the circumstances of the case". But Moore-Bick LJ immediately went on to say:

"Of course, it is impossible to foresee the nature and effect of every possible breach and the party in default can always apply for relief, but a conditional order striking out a statement of case or dismissing the claim or counterclaim is one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified."

37. In this case there is no hint in the Judge's reasoning that he questioned the proportionality of the sanction as agreed by the parties and imposed by Foxton J as a matter of principle. He recognised that non-compliance was serious and significant, despite being only one day and causing no disruption, precisely because it was an unless order. It is plain that the exercise he was engaged in at the third stage was that envisaged in Marcan, namely, considering the nature and effect of the particular breach by the second defendant and whether it was just to grant relief in all the circumstances.
38. Second, the claimant contends that the Judge failed to have regard to the particular factors identified in CPR 3.9(1)(a) and (b), namely, the need to enforce compliance with rules, practice directions and orders and the need for litigation to be conducted efficiently and at proportionate cost. As well as not referring to those provisions, the claimant says, the Judge failed to have regard to the post-Denton culture of compliance, ignoring the fact that the second defendant had 93 days in which to file his application and bringing into question the utility of peremptory orders altogether. The claimant pointed to the dictum of Andrews J in Eaglesham v Ministry of Defence [2016] EWHC 3011 (QB) at [46] that "Unless orders should mean what they say".
39. Again, I see no merit in these criticisms of the Judge's approach. He was well aware of the question of efficiency and cost, referring expressly to the fact that the breach in question did not cause significant disruption. He also took well on board and was concerned by the second defendant's overall tardiness in making his application. But his focus, in my view rightly, was on the specific delay which caused the sanction to be imposed and the reasons for that. The key factor in his decision, which outweighed the factors the claimant relied upon, was that the delay was very short, and was that of solicitors who were aiming to (and believed they were) meeting the deadline but failed by mistake to do so.
40. Third, the claimant criticises the Judge for failing to recognise that well intentioned incompetence should not usually attract relief from sanction, the failure of a party's representative being treated as that of the party himself: see Trading in Compliance Ltd v Dewse [2001] C P Rep 46 per Peter Gibson LJ at [66]. But the Judge made it plain that he did not regard that factor as in itself justifying the grant of relief, it being necessary to consider the circumstances more broadly, which he went on to do.
41. Fourth, the claimant asserts that the Judge should have recognised that it was incumbent on the second defendant to be candid in explaining how the procedural default arose, that is to say, his knowledge of the proceedings, whether he had funds available to him to instruct solicitors and how he was financing other proceedings in Cyprus. Having put the claimant to great lengths to serve the proceedings and then delayed service of his challenge to the jurisdiction, the claimant said, the court should have required an explanation of how that state of affairs came about before granting relief. Fifth, the claimant points out that the second defendant's approach, leaving everything to the first defendant, was impossible to reconcile with the sanctity of observing rules and timetables and redolent of the old lax culture of non-compliance.
42. I accept that all such matters are capable of being factored into a decision whether to grant relief from sanctions, and the Judge did have specific regard to them in his reasons. But in my judgment the Judge was right to focus primarily on the non-compliance which gave rise to the imposition of the sanction, the reasons for it and its effect. I again see no error in the Judge's approach.
43. On the other side of the coin, the second defendant, by way of a respondent's notice, relied on the fact (not taken into account by the Judge) that the Unless Order failed to comply with the requirement of CPR PD40 para 8.2 in that it failed to set out the specific date by which the application must be filed, using instead the less precise formula of a number of days from the date of the order. Had the proper format been used, the second defendant argued with some force, the mistake made by Signature would not have occurred. The second defendant suggested that failure to comply with the practice direction was attributable to the claimant, as its solicitors drafted the order, but in my judgment the blame must be shared given that the second defendant revised and agreed to the terms of the Unless Order with the assistance of Signature. But regardless of the attribution of fault, it is a significant factor that the inadvertent missing of the deadline was at least in part caused by the failure of the Unless Order to state that deadline with the required clarity, and that had it done so the mistake would probably not have occurred.
44. It follows that I see no error in the approach taken by the Judge and the decision he made was fully open to him in the exercise of his discretion. Indeed, there was a further factor that he could have taken into account which strongly supports his decision.
45. At the end of the day, the second defendant was one day late in filing his application due to the inadvertent mistake of his solicitors. Further, that failure was at least contributed to by the fact that the Unless Order was not in the required form, a requirement specifically designed to lessen the risk of the type of error which occurred in this case. In my judgment, it was well within the reasonable scope of the Judge's discretion for him to decide that, in all the circumstances, and unusually in the case of the breach of an unless order, it was just to relieve the second defendant from the sanctions in this case.
46. I would dismiss this aspect of the appeal.

The appeal against setting aside judgment against the first defendant

47. The claimant rightly stressed that the one factor specifically identified in the rules as relevant to the exercise of the discretion to set aside a judgment (assuming there is a defence with a real prospect of success or some other good reason why the defendant should be allowed to defend the claim) is the promptness with which the application was made. As Moore-Bick LJ observed in Standard Bank plc & Anr v Agrinvest International Inc & Ors [2010] EWCA Civ at [22], the introduction for the first time of an explicit requirement of promptness in CPR 13(2) was in the context of "new era in civil litigation, in which both the parties and the courts were expected to pay more attention to promoting efficiency and avoiding delay". The fact that no other factor is specifically identified for consideration "suggests that promptness now carries much greater weight than before".
48. In this case the first defendant waited 16 months after the judgment was served on him before applying to set it aside, a period when he accepts that he was perfectly capable of engaging in numerous proceedings in Cyprus and had lawyers acting for him there. As the Judge accepted, there was no good reason for his delay and no real weight or mitigation in his explanation for it. The answer to the question expressly posed in rule 13(2) is that the first defendant did not make an application promptly and had no excuse for failing to do so.
49. The claimant contended that the Judge failed to give the first defendant's lack of promptness "any or any adequate weight". I see no force in that contention given that the Judge specifically noted at the outset of his judgment that CPR 13.3 expressly provides that the court must have regard to whether any application to set aside judgment is made promptly and made several references to the very substantial delay. He made further reference to the fact that the application was not made promptly in his conclusion, holding that justice nonetheless required that the judgment be set aside.
50. There is more force, however, in the claimant's criticism of the Judge's approach to matters which he considered outweighed the powerful factor that the application was not made promptly, the claimant contending that those matters either should not have been taken into account or were not reasonably capable of outweighing the claimant's right to retain a judgment regularly obtained against the first defendant.
51. The primary matter identified by the Judge as a factor in favour of setting aside the judgment was that "with the default judgment there was no real sense of the proceedings or the dispute as a whole being over". Whilst it is unclear exactly what the Judge meant by that, it must be a reference to the fact that the claimant was still seeking to serve the second defendant and proceed with its claim against him, even as judgment was entered against the first defendant. That seems to have fed into the Judge's conclusion that justice required "judgment to be set aside and for the real issues in the present case for both defendants to go forward to a decision on the merits".
52. Mr D'Cruz KC, for the first defendant, argued that the Judge's brief reasons demonstrated that he had applied, correctly, what Mr D'Cruz described as "the Co-Defendant principle", namely, that the court is required to attach less weight to promptness in setting aside a default judgment where the same claim would continue against a co-defendant in any event. This principle is said to be derived from Hussain v Birmingham City Council and anor [2005] EWCA Civ 1570, to which the Judge was referred in argument. It is necessary to consider that unusual case in some detail.
53. Hussain was a personal injury claim by a claimant who had suffered serious injuries after falling 25 feet from a window at a community centre in 1992 when he was six years old. He commenced the proceedings in 2003 against the local council as owner and occupier of the premises and against the class instructor. The council asserted that it was not the occupier for the purposes of the Occupiers' Liability Act 1957, the relevant responsibility being that of the governors of a maintained school using the premises. The council brought part 20 proceedings against "the Governors" of the maintained school seeking a contribution or indemnity, and obtained judgment in default in October 2004. Subsequently the claimant joined "the Governors" as third defendants to the claim, and in April 2005 also obtained judgment in default.
54. It was not until 9 November 2005, with the trial due to start on 28 November 2005, that the Governors applied to set aside the judgment, seeking to defend the claim on the basis that the council was the occupier. HH Judge Macduff dismissed the application on 21 November 2005. The appeal to this court was heard on an expedited basis on 25 November 2005 and ex tempore judgments were delivered the same day.
55. Chadwick LJ (with whom Keene and Rix LJJ agreed) referred at [28] to the consideration of promptness and noted that the Governors had not applied promptly to set aside the judgment against them. He went on to say at [29]:

"But it must be borne in mind that this was not a straightforward contest between a claimant and a single defendant, where the effect of a default judgment (if allowed to stand) would be that there will be no trial. In the present case, on any basis, there will be a trial between the claimant and the Council and [the instructor]; and, at that trial, the court will have to investigate the issue which would arise if the Governors were taking part in that trial – that is to say who, as between the Council and the Governors (or perhaps the Governing Body), was to be treated as having responsibility for the premises for the purposes of the Occupiers' Liability Act 1957. The Court would have to investigate that issue because the issue lies at the heart of the Council's defence to the claimant's claim. So, although a factor to be taken into account, the failure to act promptly, of itself, must (as it seems to me) carry rather less weight than it would in a case where the effect of the default judgment, if left undisturbed, is that there would be finality. This is not a case where the default judgment – or judgments – relieves either the claimant or the first defendant of the need to go to trial; or relieves the Court of the need to decide the issue of responsibility under the 1957 Act."

56. Chadwick LJ then considered other factors relating to the exercise of the court's discretion, and concluded at [36] that, as Judge McDuff recognised, the essential question was whether the risk of injustice to the Governors outweighed the risk of injustice to the claimant and other defendants if the Governors were allowed at that late stage to participate in the proceedings.
57. At [37] Chadwick LJ noted that the judge had decided that essential question against the Governors, but that he might have taken a different view if he had been aware (as the Court of Appeal had been made aware that day) that there were serious doubts whether the Governors as at 2004 or 2005 (as opposed to a corporate Governing Body or the Governors as at 1992) were properly made defendants in the first place. Chadwick LJ concluded that it could now be seen that the claim "has probably been made against the wrong party; as well as being a claim to which the right party is likely to have a good defence".
58. The Court of Appeal, however, did not need to decide whether to uphold the judge's order because all parties had consented to the appeal being allowed and judgment set aside, in particular because "the Governing Body has now come on the scene with the benefit of its insurance company".
59. In my judgment Hussain did not establish, nor purport to establish, a "Co-Defendant" principle such as that suggested by Mr D'Cruz, but merely indicated that the weight to be given to the factor of promptness will be rather less where "on any basis" there will be a trial of the very same issues as would be engaged in the claim against the defendant who was applying to set aside judgment. This could equally be viewed as giving rather more weight to countervailing factors. Even then, it is clear, the lack of promptness might still outweigh all other considerations, as demonstrated by the decision of the first instance judge in that case and the fact that the Court of Appeal did not state that his decision was wrong.
60. I certainly do not see any support in Hussain for the suggestion that a defendant who permits judgment in default to be entered against him can readily succeed (or have markedly better prospects of succeeding) in an application to set aside that judgment simply because there are other defendants against whom the claim is made, and to that extent there is no "finality". It is commonplace that one or more of multiple defendants may not defend proceedings for a variety of reasons. The need to apply promptly to set aside such judgments applies with full force, perhaps even more so if the proceedings against other defendants are progressing in the meantime and setting aside judgment will involve delay and disruption.
61. The facts of the present case are very different to those considered in Hussain. Judgment was entered against the first defendant at a time when the second defendant had not even been served with the claim form, and there could be no certainty that he would be served or that he would defend the claim. In the event he was not served for another year. If and to the extent the Judge's statement at [11] that "there was no real sense of the proceedings or the dispute as a whole being over" was an adoption of Chadwick LJ's consideration of whether there was "finality" in Hussain, it was inapposite and, in any event, unjustifiable. Finality was not a significant issue at that embryonic stage of proceedings and to the extent it was, the only claim that had been served was at an end.
62. To be fair, Mr D'Cruz focussed his arguments on the position as it stood at the hearing of the first defendant's application to set aside judgment, by which point the second defendant had been served and had been granted an extension of time (by the Judge) to challenge the jurisdiction or defend the proceedings. But at that point the claimant had had a regular judgment against the first defendant for 16 months and the proceedings against the second defendant had only just reached the point of a jurisdiction challenge. It is difficult to see how the pendency of proceedings against the second defendant could in itself justify setting aside the judgment against the first defendant in those circumstances. In that regard, in the course of argument Mr D'Cruz accepted that the first defendant would have had no arguable grounds for applying to set aside the judgment against him in the course of the year after it was entered, during which the second defendant had not been served, there being no factors favouring such an application. That concession was rightly made in my judgment. But it is then a rather startling proposition that the claimant inadvertently revived the first defendant's ability to apply to set aside judgment by finally achieving service on the second defendant. To the extent that questions of finality entered the equation, they weighed heavily, in my judgment, in not re-opening a judgment that had been entered 16 months before and had previously been unchallenged.
63. It is clear that the Judge also had regard to the desirability of deciding the underlying merits of the case and held that justice required that be done in the present case [12]. But as the claimant pointed out, that consideration must be taken as read in any case where the defendant applying to set aside default judgment has satisfied the condition of demonstrating that he has a real prospect of successfully defending the claim. In this case, in contrast with Hussain, there was no particular concern that the wrong parties had been served in the first place or that there was a particularly strong defence. As Moore-Bick LJ recognised in Agrinvest at [22]:

"…if there has been a marked failure to make the application promptly, the court may well be justified in refusing relief, notwithstanding the possibility that the defendant might succeed at trial."

64. Whilst the Judge's decision to set aside judgment against the first defendant was one made in the exercise of his discretion, I do not consider that he identified any factor reasonably capable of outweighing the fact that, at the early stage of these proceedings, the first defendant had not challenged the judgment against him for 16 months without any good reason for that failure.
65. I would allow the appeal against the setting aside of judgment against the first defendant.

Lord Justice Moylan

66. I agree.

Lord Justice Bean

67. I also agree.