If a defendant is late in filing their defence to a CPR Pt 7 claim but before the claimant has requested a default judgment, does the defendant require an extension of time from the court in order to fend off a subsequent default judgment request?
A late defence will beat a request for judgment in default of defence. Provided the defendant gets in first with the filing of their defence, they will not be prejudiced by being out of time. The better view is that CPR 15.5 which describes the period it specifies for the filing of a defence as the “general rule” does not require the court’s relief from sanction under CPR 3.9 where the defence is late. However, it would be wise for a defendant who is or will be out of time time to apply to the court for an extension so as to head off a default judgment which would necessitate an application to have it set aside but they would have to show that their defence was bona fide (see Coll v Tatum (2001) The Times 3 December
