Summary

The applicant (K) applied for permission to appeal against an order that a judgment against him be set aside only on the condition that he make payment of an earlier costs order in favour of the respondent company (R). K had prior notice that R would seek to persuade the court to impose financial conditions on any decision to set aside the judgment but he had failed to provide any evidence of his ability or inability to pay. K argued that if a judge wished to impose financial conditions he was required to pause and invite submissions as to a defendant's financial circumstances. It was clear from authority that the imposition of a financial condition which a defendant could not meet amounted to stifling a defence and in effect giving judgment for a claimant.

Facts

There was no general proposition to the effect that a court was required to invite submissions on a defendant's financial circumstances before imposing financial conditions on a decision to set aside a judgment. A decision to impose conditions in circumstances where a defendant had been aware that conditions would be sought to be imposed but had failed to put in evidence could not be criticised.

Held

No general proposition could be derived from authority to the effect that the court was required to invite submissions on a defendant's financial circumstances before imposing conditions. It was the case that on an application for summary judgment the court should not make an order without giving prior notice that a conditional order might be sought and a defendant an opportunity to provide evidence of his means at an appropriate time. However, the instant case did not concern summary judgment but relief from sanctions and notice had been given by R that conditions would be sought, Anglo-Eastern Trust Ltd v Kermanshahchi (2002) EWHC 2673 (QB) distinguished. K had not taken the opportunity to put in evidence on the issue but had merely made bare assertions that were very far from the full and frank disclosure required. In those circumstances the court could not accept any criticism of the judgment as legitimate and it had been open to the judge to refuse to set aside the judgment in the exercise of his discretion.