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Application for Revocation of a Default Judgement | December 9, 2011

Rule 33 of the Employment Tribunals (Constitution & Rules etc) Regs 2004.  Regulation 33 (2) would apply to the application and it states:

“the application must state the reasons why the default judgement should be varied or revoked. When it is the Respondent applying to have the default judgement reviewed, the application must include with it the Respondent’s proposed response to the claim [where that has not been received by the employment tribunal] an application for an extension of the time limit for presenting the response and an explanation of why rules 4(1) and (4) were not complied with.”

Rule 4(1) deals with presenting the response within 28 days of receiving a copy of the claim. Rule 4(4) states that subject to “rule 33 the employment judge shall only extend the time within which a response may be presented if he is satisfied that it is just and equitable to do so.”

Request for extension should have been made pursuant to Rule 4(1), 4(4), setting out why it is just and equitable to extend the time limit for submission of the response.

According to 33(1) when read with 33(2) the request for extension of time for submission of the response should be in the request for review. The rule states that the application for extension of time should be within 14 days of receipt of the default judgement.

Rule 33(6) requires a good reason why the response has not been presented in the applicable time limit. Rule 33(2A) allows  employment judges to refuse applications without need for hearing where the requirements of rule 33 paragraph (2) have not been met.

Rule 33(5) There should be a reasonable prospect of successfully responding to the claim or part of it. The EAT in Pestle & Mortar v Turner UKEAT/0652/05 stated that this was a point the tribunal should take into account in exercising their discretion.

In the Pestle case it was held that it was necessary to weigh the balance of prejudice to each of the parties in the case as regards revoking the default judgement.

In Kwik Save Stores Ltd v Swain [1997] ICR 49 EAT per Mummery P who held that the relevant factors to consider are:

1.the explanation for the non-compliance
2.the merits of the events
3.the balance of possible prejudice to each party

Rule 4A requires the application to include notification to all parties that any objection to the application must be sent to the employment tribunal within seven days of receiving the application or, if a hearing of any type is due to take place before the expiry of that seven day period, before the date of that hearing and that any objection to the application must be copied to both the employment tribunal office and all other parties.

Parties need to confirm (where represented) that they have complied with their obligations under Regulation 11 (4) schedule 1 of the employment tribunal (constitution and rules of procedure) Regulations 2004 and that a copy of correspondence has been sent to other party’s solicitors.

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