25th May 2012
The applicant (S) applied to set aside judgment obtained against him by the respondent casino (G) in his absence and to set aside an earlier order by a deputy master barring him from relying on any witness evidence.
S had gambled on many occasions at G's casino. He sometimes paid for his gambling chips by cheque and had once been able to negotiate a discount on his debt with G. G had brought proceedings against S to recover £150,000 which represented two cheques from S, which had been dishonoured by his bank. A deputy master had made an order barring S from relying on any witness evidence served after a certain date. S did not appear at trial and was not represented and judgment was granted in favour of G in April 2012.
S alleged that he had not known of the trial date in time and submitted an amended defence alleging that G had acted in breach of the Gambling Act 2005 s.81 by unlawfully providing him with credit which rendered that credit facility illegal and unenforceable. S alleged that there was an established practice of G giving S time to pay his debts and that he signed scripts at the casino which entitled him to chips which he would repay later by agreement.
It was plain that S's defence could only be argued at trial following evidence of any alleged agreements between S and G. Consequently as long as the deputy master's order was in place, S's defence could not succeed for want of evidence to support it. S's witness statement showed that his defence had no prospect of success. His cheques to G were not post-dated and were not credit for the purposes of s.81 and therefore were not unlawful. G had not provided credit for the purposes of gambling. There was an inconsistency between two assertions in S's defence, first that the scripts were not cheques and second that they were security for a loan. If they were to have value as security, they had to be cheques; otherwise they were just pieces of paper. No defence was made out in S's original defence or his amended defence. He had failed to satisfy the court of any of the necessary criteria from CPR r.39.3(5) to set aside the judgment. S's evidence on the issue of delay in bringing the instant application was unsatisfactory and he had not acted promptly. There was also no good reason for his failure to attend the trial. His claim was bound to fail and nothing would be achieved by setting aside the deputy master's order.
A defendant's application under CPR r.39.3, to set aside judgment against him which had been obtained in his absence, was refused where his defence had no prospect of success, he had no good reason for failure to attend the trial and failed to act promptly in making the application.