In a motor vehicle liability Action, the Defendants applied to open up a Noting in Default. The Defendants’ insurer had been notified upon the Defendants being served with the Statement of Claim. The insurer contacted the Plaintiff’s lawyer to ask if a Statement of Defence was required. The Plaintiff’s lawyer did not reply and did not “confirm that a Statement of Defence was required”. Settlement discussions continued for over a year. When the matter did not settle, the Plaintiff noted the Defendants in default.

Master Schlosser noted that the ability to extend time for service after expiry of the Statement of Claim is limited by Rule 3.27, and commented that it is tempting to limit the ability to extend time for a Defence in a similar way. However, the Court considered the relevant test which a litigant must satisfy: 1) the default of making a defence was unintentional; 2) the Application to set aside the Default Judgment was brought as soon as the Default Judgment was brought to the attention of the litigant; and 3) there is a good defence on the merits. Master Schlosser reviewed the circumstances in this case and allowed the Defendants’ Application. The Court permitted the Defendants ten days from the date of the decision to file their proposed Defence.