UK Construction and Law

Promptness runs from the default judgment, not from the defence you missed

By Staff Writer  |  3 September 2026

A claimant argued the clock started when the defence fell due, which would have made the delay ten weeks. The Commercial Court held it started when judgment was entered, which made it eighteen days, and set the judgment aside.

Inner Mongolia King Deer Cashmere Company Limited v Haian Ma [2026] EWHC 2256 (Comm) was handed down on 2 September 2026. The underlying dispute concerns an agency under which the defendant sold cashmere products to a United Kingdom retailer from 2004, the termination of that agency in 2014, and some 9.4 million dollars that a connected company retained rather than passing up the chain.

None of that was decided. What was decided was an application to set aside a default judgment, and the point that matters to anyone who has ever missed a deadline is where the court measured the delay from.

Two candidate start dates

The court had directed a defence to be filed by 4pm on 13 May 2024. It was not filed. Default judgment was entered on 12 July 2024. The application to set aside was issued on 30 July 2024.

The claimant said the relevant period was the ten weeks from the date the defence was due. The defendant said it was the eighteen days from entry of judgment. CPR 13.3(2) requires the court to have regard to whether the application to set aside was made promptly, and the answer to that question depends entirely on which date you start from.

The principles of Mitchell and Denton are engaged because this is an application for relief from sanctions. Here, the relevant sanction was the entry of the default judgment. Before that, there was no sanction to seek relief from.

Mr Christopher Hancock KC, who heard the application in the Commercial Court

The second reason given was structural. CPR 13.3 provides for an application to set aside a default judgment. No such application can be made until the judgment exists, so the period cannot begin before it does.

The relevant period of delay was therefore eighteen days. Examining the reasons for those eighteen days, the judge found that at the moment judgment was entered the defendant was engaging with the litigation, had instructed solicitors and had put them in funds, but that no request for an extension of time for the defence had been made. He accepted that recently instructed solicitors had a great deal to get to grips with in a very short time, and found that most of the eighteen days went on collating information and preparing the defence and the application. He concluded that the application was clearly made promptly.

Earlier delay is not irrelevant, it just goes elsewhere

Delay before the sanction is not ignored. The judgment records expressly that earlier periods of delay are not relevant at the promptness stage although they may be at later stages of the inquiry. The claimant's material on the defendant's conduct, four years said to have been wasted on an unsuccessful jurisdiction application, court time lost, a case said to have changed on several occasions and a challenge to the defendant's medical evidence, all went to the third stage of the Denton analysis, the consideration of all the circumstances.

At that stage the judge accepted that the wasted court time was a relevant factor to weigh, but found that the costs of the jurisdiction application had been paid with interest, so the claimant had been made whole on that head, and that who suffers from the delay in the proceedings depends on which side ultimately wins. On the allegations that the defendant had not told the truth or had changed his case, he held that they could not fairly be judged on a summary application of this sort.

The result

An arguable defence was conceded by the claimant, so that limb was not contested. Given an arguable defence and a prompt application, the judge held that the remaining circumstances were not enough to outweigh them, and set the default judgment aside. He indicated that he would hear argument on whether conditions should be imposed under CPR 13.1, and the other applications were left over.

The practical reading is narrow and useful. A missed defence is not the breach the court measures for promptness; the judgment entered because of it is. That does not make the missed deadline safe, because it reappears at the third stage where all the circumstances are weighed. It does mean that the days that count against you start running on the day judgment is entered, and that the right response to learning of a default judgment is to issue, not to investigate.