The recent High Court case of Goldcrest Distribution Limited v (1) Charles McCole (2) Mary McCole and Another is a salutary reminder for those involved in litigation that delay in dealing with their case can prove fatal.
Goldcrest had provided credit to a company that was owned by Mr McCole, secured by a charge over a residential property jointly owned by him and his wife. The loan was not repaid so Goldcrest sought possession of the property.
Mrs McCole filed a Defence and Counterclaim to Goldcrest’s claim. The Defence argued that:
- The charge was a regulated mortgage contract and was unenforceable because Goldcrest was not licensed by the Financial Conduct Authority.
- The charge was void under the Insolvency Act because it was arranged after a bankruptcy petition had been presented against Mr McCole.
- The property was subject to a trust for the benefit of Mr & Mrs McColes’ daughter.
- Mrs McCole had been subject to undue influence at the hands of Mr McCole and Goldcrest had had notice of this.
In her Counterclaim Mrs McCole sought a declaration that the charge was unenforceable and should be set aside.
Despite Mrs McCole’s solicitors informing Goldcrest’s solicitors that the time for serving its Defence had long expired, Goldcrest did not file a Defence to the Counterclaim after six months. Mrs McCole therefore applied for and obtained a default judgment in respect of her Counterclaim.
Goldcrest subsequently instructed new solicitors and applied for the judgment to be set aside and for permission to file its Defence. However, it took Goldcrest a further month to make that application.
Although the Court agreed that Goldcrest had real prospects of success of defending the Counterclaim, the Judge refused to set the judgment aside on the grounds that he felt that Goldcrest’s delay in making the application was a serious failure for which Goldcrest had provided no reasonable explanation. The Court therefore decided not to exercise its discretion to grant Goldcrest relief and the default judgment therefore stood.
Although Goldcrest had reasonable prospects of success with its claim, this case once more demonstrates that a party can be severely punished by the Court for poor conduct, in this instance for failing to deal with its claim in a timely manner.
If you are involved in any litigation or court proceedings, Blacks Solicitors can assist. Please contact Luke Patel on 0113 2279316 or email him at “LPatel@LawBlacks.com”.