Pincus v Singh [2024] EWHC 502 (Ch)

In Pincus v Singh [2024] EWHC 502 (Ch) HHJ Paul Matthews, sitting as a Judge of the High Court, has delivered a rare decision on CPR12.4(4) and its effects on ‘abandoned’ claims. Joseph Meethan acted for the successful Defendant.

The legal background

CPR12 allows a party to obtain judgment in default of an acknowledgment of service or a defence. CPR12.4 sets out the procedure to achieve this. It identifies two methods:

1. For a specified sum of money, an amount to be assessed, delivery up of goods, or a combination of the three, it is possible to enter judgment by filing a request: CPR12.4(1).
2. For any other remedies, such as injunctions or specific performance, default judgment can only be obtained by a CPR23 application: CPR12.4(3).

The crux of this case is CPR12.4(4), which states:

(4)          Where a claimant—

(a)          claims any other remedy in the claim form in addition to those specified in paragraph (1); but

(b)          abandons that claim in their request for judgment,

they may still obtain a default judgment by filing a request under paragraph (1).

 

But what does it mean to abandon a claim? It may appear obvious, but that is far from the case.

The leading (and only) authority on the matter was Robins v Kordowski [2011] EWHC 1912 (QB). The relevant paragraphs there say:

55. Mr Crystal submits that, by using the procedure in part 12.4(1) instead of 12.4(2), the Claimants have irrevocably abandoned their claims for any relief other than the relief by way of a money claim. He submits that there is, accordingly, no jurisdiction to grant relief by way of summary disposal under section 8 .

56. I reject this contention. In Loutchansky v Times Newspapers Limited [2001] EWCA Civ 1805; [2002] QB 783 , the court considered the application of section 8 of the Act in circumstances where the judge at first instance had given judgment for the Claimant with damages to be assessed. It was argued that, following that judgment, the court had no jurisdiction to make an order under section 8 of the Act. In paras 93 to 99 the Court of Appeal rejected that submission. The court, at para 93, accepted and indorsed the reasoning of Gray J, that a judgment for damages to be assessed is not a disposal of the claim within the meaning of section 8 . The court held:

“The statute does not expressly limit the jurisdiction in this way. In giving its language a purposive construction we do not think it was intended to do so. After all, as the judge said, the claim is not disposed of by the court until both liability and quantum have been decided”.

57. The same reasoning must apply where the judgment on liability is one that has been entered in default of defence.

58. Moreover, I would reject Mr Crystal's interpretation of CPR Part 12 on the ground that it leads to an unnecessary and unjust result. The overriding objective in part 1.1 provides “these rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly”. It goes to say:

“1.2.  The court must seek to give effect to overriding objective when it … (b) interprets any rules …”.

59. It would be plainly unjust to interpret Part 12.4 to the effect that by making the application by request, instead of by application under Part 23 , the Claimant must be held to have irrevocably abandoned their claim for relief other than money damages. In my judgment the effect of the Claimants having made a request under Part 12.4(1) is that, if they wished to pursue their other claims for relief, they had to make an application to the Court. That is what they have done, pursuant to section 8 of the Act.

60. In any event, as Mr Singla submits, where there has been an error of procedure, Part 3.10 gives the court power to make an order to remedy the error. If I were wrong on the interpretation of Part 12 , I would make an order setting aside the judgment in default, and substituting an order under section 8 of the Act (also on the ground that the defence has no realistic prospect of success). It is to be recalled that there has since 30 March been in force the injunction granted by Henriques J, and until Mr Crystal thought of this point last night (it is not in his Skeleton argument) it had not occurred to anyone that the Claimants had abandoned their claim for an injunction.

So, although the rules said that other claims would be abandoned,[1] having made a request for judgment, the Claimant was able to continue to seek summary disposal. More on this to come, as we move on to the case at hand.

Pincus v Singh

The case concerned a right of way over a concrete ramp and loading platform at a commercial unit (‘the Loading Platform’). The unit was let out by the Claimant to tenants, and the Second Defendant was the owner of the Loading Platform. The Defendants had undertaken works demolishing the Loading Platform in part, causing the Claimant to bring proceedings.

Through a series of events that do not need repeating, Miles J made an interim injunction against the Defendants in September 2022, requiring reinstatement of the Loading Platform.

The Defendants did not file a defence and the Claimant made a series of unsuccessful requests for default judgment, each failing for various reasons, on 6 December 2022, 13 December 2022, and 25 January 2023.

Finally, on 14 February 2023 a request was made which succeeded. That request was accompanied by a letter which purported to ‘abandon all non-monetary aspects’ of the Particulars of Claim.

It was following this that the master entered default judgment on the papers.

Later, the Defendants applied to set aside default judgment, which was opposed by the Claimant and dismissed by HHJ Paul Matthews in [2023] EWHC 2997 (Ch).

Following that decision the Court heard an application made by the Claimant for a self-help remedy. The Claimant’s position was that the Defendants had not properly reinstated the Loading Platform.

The application was heard and judgment reserved. The next day HHJ Paul Matthews saw on the Court file the letter dated 14 February 2023, and the parties produced written submissions.

What the Court found

HHJ Paul Matthews distinguished the case from Robins v Kordowski. He drew attention to that letter on 14 February 2023, and the express abandonment of remedies at [41]-[44].

When invited by the Claimant to remedy errors of procedure the Court refused to do so. The internal mistake or misunderstanding of the Claimant’s solicitor was not a good reason to do so [45]-[46].

The legal importance of this decision

Keen readers will have noticed the comment in Robins v Kordowski at [60] above that the argument about abandonment was introduced at the last moment. That HHJ Paul Matthews chose to distinguish rather than to find differently is therefore significant.

The decision in Robins v Kordowski, for example, makes no reference to the development of CPR12.4 nor to CPR 13.6.

It is possible to trace the history of the word ‘abandons’ back into the commentary to the Rules of the Supreme Court White Book at 13/5/1. From there it seems to have been incorporated into the CPR as originally drafted and has been left in place. Under the old RSC the abandonment was one which prevented the pursuit of those other remedies.

CPR 13.6 is key in that it allows for abandoned claims to be restored if default judgment is set aside. It is implicit in this that abandonment must have a stringent impact and must mean that they cannot be pursued either. This is something that was at odds with the White Book commentary at 12.4.7, which appeared to suggest that abandonment would not have an impact beyond those other remedies not being included within the request for judgment.

The remaining issue is whether abandonment applies. It was possible to read from Robins v Kordowski that simply also making an application under CPR23 would be enough to avoid this consequence.

This judgment does consider CPR13.6 and does find that a claim has been abandoned, but also does not reason differently to Robins v Kordowski.

Why is this? Was Robins v Kordowski correct? In my view it must be. As I argued in written submissions, it was correct on its facts given the short gaps between the request for judgment and the CPR23 application, but it should be viewed as a case where there was a mistake and the rules allowed this to be remedied. It even makes express reference to CPR3.10.

That mistake remedying is not limitless, as this case shows. Nor is the provision for abandonment without teeth.

This may cast some doubt on the White Book commentary at 12.4.7.

The practical impact

Parties seeking mixed remedies should do so at their own risk. If you want a default judgment for anything other than a liquidated sum, damages to be assessed, or delivery up of goods, you should make an application under CPR23. Yes, the Defendant may well attend and object, but when they have the opportunity to apply to set aside default judgment anyway this is not an enormous advantage.

Clearly abandonment has been found to have some force. In this case it has turned a Chancery Division nuisance case into something with a value similar to a small claim.

If there is a genuine mistake in applying for default judgment that can still be remedied under CPR3.10, but party’s words may always be used against them.

The abandonment in Robins v Kordowski was the request for default judgment itself. In Pincus v Singh it was also found to include the letter. Both were acts of the Claimant’s solicitors, but only in one did the balance tip over into something the Court would not remedy. Whether the Court uses CPR3.10 is always going to be an exercise in its discretion. Expressly seeking to come within the procedure for judgment by request was enough to sink the prospects of further remedies.

For Defendants, there is a lesson that if all else fails the correspondence may be where help can be found.

A final note on that White Book commentary

What about this commentary at 12.4.7? The passage reads:

…On the one hand, therefore, r.12.4(4) is open to the interpretation that, where a claimant makes a mixed claim, they may obtain judgment by request for those parts of the claim falling within r.12.4(1) at the price of abandoning irrevocably the other claim(s). If that were the intention behind the use of the word “abandons”, force would be added to the contention that any request for judgment must contain an express abandonment of the other claim. On the other hand, it is doubtful that this is what the rule intends, for three reasons. First, such an interpretation does not fulfil any obvious policy purpose (why should such a price be exacted? what mischief is guarded against by doing so?). Secondly, the relevant practice forms do not provide for the claimant to indicate whether or not they are abandoning any other claim. Thirdly, the object of the provision would seem to be (consistent with the overriding objective) to reduce costs and delays where opportunities to do so present themselves, in this instance by enabling a claimant in a straightforward case simply to obtain default judgment by request (rather than being put to the expense of an application) on such parts of their mixed claim (if that is what it is) as consist of claims for a specified amount of money or an amount of damages. …

The three reasons given there for interpreting CPR12.4 restrictively are:

1. 1. That there is no clear policy reason for why abandonment should happen.
   2. There is no part of the relevant forms to confirm abandonment.
   3. That consistency within the rules would be obtained by allowing default judgment on certain parts of mixed claims, saving costs.

Given the decisions in both Pincus v Singh and Robins v Kordowski itself this is open to question. Both cases involved the request for judgment as the abandonment of the remedies. What distinguished them was that in Pincus v Singh the surrounding circumstances changed the facts enough that the Court was not willing to exercise the CPR3.10 jurisdiction to waive defects in procedure. The first and second limbs of the commentary are open to scrutiny as a result. As for the third, it is just as true where abandonment is strictly applied. What is achieved by having both a request and an application for different remedies when there is nothing to stop all remedies from being within the application? There is a clear difference between the request and application routes for default judgment as those that need an application are discretionary remedies, where even if all facts are accepted in default, the remedy may not follow. It is something which may bear revisiting.

 

 

[1] CPR12.4 has been re-numbered since Robins v Kordowski but is the same for present purposes.