Pepper Finance Corporation [Ireland] Designated Activity Company v Ward and Ors

THE HIGH COURT JUDICIAL REVIEW [2026] IEHC 249 Record No. 2018/716S BETWEEN PEPPER FINANCE CORPORATION (IRELAND) DAC PLAINTIFF AND GEORGE WARD, DARRAGH WARD AND GLENN WARD DEFENDANTS JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 27th day of April, 2026 INTRODUCTION 1. This is an application by the First Defendant pursuant to Order 13, Rule 13 of the Rules of the Superior Courts (RSC) to set aside a default judgment entered against him in November, 2018, in the absence of an appearance to the proceedings for a debt of €309,054.73 arising on foot of a loan agreement dating to 2006. The central issue for me to determine is whether the judgment should be set aside due to a cumulation of factors including solicitor’s failure to file an appearance, alleged procedural irregularities and claims of a prior settlement and other defence points, balanced against a seven-year delay and the legal principle of finality. 1 BACKGROUND 2. By way of background, a €224,000 commercial loan issued by Bank of Scotland (Ireland) Ltd in August, 2006, to the Defendants. The term of the loan was 20 years. The loan was secured on Unit 2, Ringwood Centre, Damastown, Dublin 15. Interest under the terms of the loan was set at 2% + EURIBOR, later including 6% default/surcharge interest (or interest at .5% per month). 3. Ownership changes occurred when the Bank of Scotland (Ireland) merged into Bank of Scotland Plc in 2010. Subsequently the Defendants were sent correspondence advising that the loan was sold to Ennis Property Finance DAC in 2015 (hereinafter “Ennis”). It was deposed (in an Affidavit of Debt sworn in August, 2018) that by a purchase deed dated the 29th of July, 2015, made between Bank of Scotland Plc of the one part and Ennis of the other part, Bank of Scotland Plc agreed to sell to Ennis by way of absolute assignment a portfolio of assets which included the loan facility and account the subject matter of the within proceedings. The said purchase deed has not been exhibited. 4. It appears that repayments on the loan fell into significant arrears. The secured property was sold by a receiver for €55,000 and net proceeds of just €33,018.96 were credited to loan leaving a significant shortfall. 5. By solicitor’s letter written on behalf of Ennis dated the 10th of October, 2017, the First Defendant was requested to repay sums due in full. Legal proceedings were threatened in the event of failure to do so. 6. Proceedings issued by summary summons in June, 2018 and were served on the First Defendant. Service on the First Defendant was indorsed on the summons. For the purposes of the application for summary judgment, the Plaintiff waived further interest after the 4th of October, 2017. Subsequently, judgment was entered in default of appearance as against the First Defendant only on the 6th of November, 2018. 7. From statements of account exhibited in the Affidavit of Debt sworn in August, 2018, to ground the application for judgment in the Central Office, it appears that default or surcharge interest accrued in sums which were circa threefold the interest on arrears charge. 2 8. It is claimed that the loan was later sold by Ennis to Pepper Finance Corporation (Ireland) DAC, the current Plaintiff (hereinafter “Pepper”) in 2020, but again no documentation evidencing this transfer has been exhibited before me. Pepper was subsequently substituted as Plaintiff. 9. An application for leave to execute on foot of the judgment was made by Notice of Motion dated the 6th of March, 2024. While on its face the Notice of Motion was directed to the First Defendant, papers were in fact served on the First Defendant’s former solicitor, even though he had never entered an appearance, had been struck off and was no longer in practice. 10. Leave to execute was obtained on the 10th of June, 2024 (Coffey J.). By letter dated the 15th of July, 2024, the First Defendant was served with a copy Order. The First Defendant engaged a solicitor and in subsequent correspondence, it was confirmed on behalf of the Plaintiff that the motion papers had been served on the solicitor “from whom [they] had previously received correspondence in respect of …the proceedings” and the order was then served on the First Defendant’s address “in error”. It was indicated on behalf of the Plaintiff that an application to set aside the order granting leave to execute would be made and that a further application for leave to execute would then follow. Subsequently, in response to a request from the First Defendant’s solicitor, the First Defendant was provided with the papers grounding the application for leave to execute including an affidavit of service on his former solicitor who was inaccurately described as “on record for the defendants”. 11. In a Notice of Motion filed on the 19th of September, 2024, an application was brought for an order vacating and/or setting aside the Order of Coffey J. dated the 10th of June, 2024. It was conceded in grounding this application that the motion seeking leave to execute had been served on a solicitor who was not on record for the First Defendant and accordingly the order giving leave to execute had been obtained irregularly. By Order of Coffey J. made on the 2nd of December 2024, the Order giving leave to execute made on the 10th of June, 2024 was vacated. 12. Although the first order giving Pepper leave to execute was vacated when it came to light that the application had not been served on the First Defendant but on his former, 3 now struck off, solicitor even thought they had initially obtained judgment in default of appearance, Pepper continues to seek to stand over the order for judgment obtained in default in November, 2018. 13. By Notice of Motion dated the 17th of September 2024, a further application was made pursuant to Order 17, Rule 4 of the RSC seeking to substitute Pepper as Plaintiff in the proceedings. In the same Notice of Motion, an order pursuant to Order 42, Rule 24 of the RSC granting Pepper leave to issue execution as against the First Defendant was sought. This application came before Coffey J. in February, 2025 who made an order substituting Pepper as Plaintiff and adjourned the balance of the motion, presumably pending a determination of this set-aside application. APPLICATION TO SET ASIDE 14. By further Notice of Motion dated the 4th of December, 2024, the First Defendant applied for an order pursuant to Order 13, Rule 13 of the RSC setting aside the judgment entered in default of appearance some six years previously. This application is grounded on an affidavit of the First Defendant sworn on the 4th of December, 2024 and the subsequent Affidavit of his accountant, Joseph Cunnane, sworn on the 20th of March, 2025. 15. The First Defendant seeks to set aside the judgment obtained in default in November, 2018 on several grounds. He relies inter alia on solicitor failure, procedural irregularities (confusion re: whether solicitor on record or not and failure to prove ownership of the debt), a prior agreement to settle the alleged debt and the availability of real lines of defence. 16. As regards solicitor failure, the First Defendant contends that he instructed a solicitor (Patrick Delaney, now struck off), to defend the proceedings in 2018 stating: 4 “I instructed Mr Delaney to take the necessary procedural steps to act for me in the proceedings. I am advised that the first necessary procedural step was the entry of an appearance, and I confirm that this was a step which I instructed Mr Delaney to take to protect my interests.” 17. It appears from exhibited email correspondence that the First Defendant contacted Mr. Delaney not long after he was served with proceedings. In an email exhibited dated the 10th of July, 2018, the First Defendant expressed sympathy on the basis that Mr. Delaney’s mother was unwell at the time and he was sorry to be contacting him: “in connection with our forthcoming case with Pepper Finance. We are anxious to lodge our intent to defend and would appreciate your assistance on this matter”. 18. It appears that the First Defendant’s accountant, Mr. Cunnane (who has separately sworn an affidavit in support of this set aside application) also emailed the First Defendant’s nominated solicitor, Mr. Delaney, to discuss the claim against the First Defendant. By email dated the 16th of July, 2018, Mr. Cunnane asked if Mr. Delaney could take a call in relation to the defence of the claim. On affidavit, he confirms that he informed Mr. Delaney that it was his position he had negotiated a settlement of the Plaintiff’s claim and was willing to swear an affidavit to this effect. 19. Notwithstanding seemingly accepting instructions and allegedly assuring the First Defendant that he would “look after it”, it is common case that the said solicitor failed to enter an appearance, albeit the First Defendant is clear that he instructed him to do so. It is confirmed on affidavit that the solicitor in question later ceased practice and was struck off the roll of solicitors in 2023 for serious misconduct (gambling addiction, misuse of client funds). I am invited to infer that at material times the said solicitor was in the grips of a serious gambling problem and that these circumstances are special and exceptional. 5 20. Although the First Defendant acknowledges that he received a letter from the Plaintiff’s solicitors dated the 14th of November, 2018, in which they informed him that the Plaintiff had obtained Judgment against him, the First Defendant maintains that he did not appreciate that they had completed the case against him in a final fashion. It appears from email correspondence exhibited that he forwarded the letter to Mr. Delaney’s office by email dated 16th of November, 2018. On affidavit he states: “Having entrusted the defence of the case to Mr Delaney, in whom I then had complete confidence and whom I believed was acting in my Interests and protecting my position, I did not understand the significance of the letter. Naturally, on receipt of the letter I emailed Mr Delaney a copy of same.” 21. The First Defendant maintains that he reasonably believed the case was being defended. There is some ambiguity, however, in relation to whether all his attempts to contact his solicitor to discuss the case were unsuccessful and he does not exhibit any correspondence from Mr. Delaney. He exhibits a further email dated 3rd of July, 2019, addressed to Mr. Delaney in which he asks “any word from Pepper yet” but does not say whether he ever received a response. He avers: “I recall that Mr Delaney appeared to be in some form of difficulty in the years that followed and at a certain point, he ceased communicating with me in relation to the within proceedings and in general. When legal services were required by me in the ensuing years, I engaged different solicitors. Mr Delaney ultimately ceased practice in Castleknock; it appears from news reports that he was struck off in 2023.” 22. The First Defendant is silent as to why he did not engage other solicitors in respect of these proceedings if he was having difficulty in communicating with his former solicitor and had found it necessary to engage different solicitors in respect of other matters. He contends that: 6 “Mr Delaney never informed me that he had (i) failed to enter an appearance on my behalf to the proceedings or (ii) that the Plaintiff intended to pursue me for Judgment and in any event could do so without further recourse to him or me by entering Judgment in the Central Office of the High Court in the absence of an appearance being entered and (iii) that once a Judgment had been entered in the office I would have to bring a court application to set it aside failing which it would remain in place and prejudice me. If I had known that Mr Delaney had not entered an appearance on my behalf and the consequences of same, I would have engaged alternative solicitors to deal with the matter so that I could contest the case. I confirm that if Mr Delaney had properly advised me of the legal situation or if the Plaintiff had taken steps in relation to the Judgment sooner, I would have immediately sought to have the Judgment set aside.” 23. The First Defendant relies on a belief that his former solicitor had some contact with the Plaintiff but claims he does not know the details of any engagement and has been unable to obtain a copy of his former solicitor’s file despite requesting same from the Law Society and seeking clarification from the Plaintiff’s solicitor (receiving no response to correspondence from either party). 24. In support of his application the First Defendant refers to the fact that in moving to execute on foot of the judgment in 2024, the Plaintiff’s solicitors relied on service on the later served court papers on the First Defendant’s former solicitor on the basis that he was “on record”. The First Defendant argues this shows confusion and irregular handling of the proceedings suggesting that the judgment was obtained irregularly. He further contends that the Affidavit of Debt does not provide evidence in the form of exhibited documentation that the Plaintiff had title to the debt to advance the claim that judgment was obtained irregularly. 25. As for the delay in bringing this application to set aside, the First Defendant maintains that he did not understand that the judgment was final and he trusted his solicitor to deal with the matter. He relies on the fact that no enforcement action occurred for years with the effect that the First Defendant was given no reason to apprehend that the proceedings were not being defendant. He maintains that he first became aware that 7 the proceedings had not "gone cold" when he received a copy letter from the Plaintiff's solicitors dated the 15th of July, 2024, enclosing a copy of an Order of Coffey J. of the 10th of June, 2024, which provided, inter alia, that Pepper was granted leave to execute a judgment against him. The First Defendant relies on the fact that once he became aware that enforcement action was imminent in 2024, he moved to bring this application to set aside without delay. 26. In his separate affidavit, Mr. Cunnane confirmed protracted negotiations spanning months with a named individual within Pepper in 2017 and averred his clear understanding that it had been confirmed to him by this named individual that the sum of €32,000 was acceptable to the Plaintiff in full and final settlement of the alleged debt. Mr. Cunnane confirmed his understanding that all that was left to do was deal with minor formalities such as signing a formal agreement and for the sum to be paid over. Subsequently, this person left the employment of Pepper. It was Mr. Cunnane’s position that Pepper then resiled from the agreement. He further confirmed that when proceedings were instituted, he spoke with Mr. Delaney, the solicitor retained by the First Defendant to defend these proceedings and confirmed his position that proceedings had been settled and that he was willing to swear an affidavit to this effect. 27. Replying affidavits were filed on behalf of the Plaintiff. Firstly, an affidavit was filed on the 17th of June, 2025, by a solicitor in the firm acting on behalf of the Plaintiff. Next, a further affidavit sworn by an employee of the Plaintiff was filed on the 8th of July, 2025. Pepper maintains through the affidavits filed on its behalf, that the judgment was regularly obtained in circumstances where the First Defendant was properly served with proceedings in 2018 and made aware of the judgment obtained shortly afterwards. It is contended that the seven-year delay in moving to set aside the judgment is excessive and unexplained. 28. It was also averred by the Plaintiff’s solicitor in express terms (in both paras. 7 and 21 of his Affidavit), however, that no correspondence whatsoever had been received from the First Defendant’s former solicitors and that it was therefore “incorrect to assert that his solicitor had engaged with the Plaintiff’s solicitors or that my offices believed he 8 was on record” and that “having reviewed my files, Patrick Delaney Solicitor has never contacted the offices of your Deponent in respect of the within proceedings.” 29. On behalf of Pepper, objection was also made by its deponent to the admission of privileged correspondence marked “without prejudice” and/or “subject to contract/contract denied”. It was accepted that negotiations had taken place with Mr. Cunnane but it was averred that the correspondence exhibited did not evidence an agreement to settle the debt the subject of the proceedings. The deponent, a person other than the person who had negotiated with Mr. Cunnane, confirmed that the Plaintiff ultimately rejected the proposal of €32,000 in full and final settlement of the debt, contending that if the Plaintiff had settled the debt, a formal and written settlement agreement would have been signed by both parties, as is the Plaintiff’s standard practice. 30. Written submissions were delivered in support of this application on behalf of the First Defendant. At paras. 2.2-2.4 of the said submissions it was stated: “The First Named Defendant believes that his solicitor engaged with the Plaintiff's solicitors but he has been unable to obtain a copy of the solicitor's file, the solicitor having been suspended in 2019 and struck off for stealing client funds. A request to the Law Society for a copy of his file yielded nothing. A request to the Plaintiff's solicitor seeking copies of correspondence with Mr Delaney was not replied to. 2.3. Mr Macken's Replying Affidavit asserts that he reviewed his files and that no correspondence whatsoever was received from Mr Delaney. This is inconsistent with his firm's prior statements and sworn evidence and is thus demonstrably incorrect. An Affidavit of Service sworn by Mr Joey Taylor on 16 April 2024 on behalf of the Plaintiff averred that Mr Delaney had come on record for the Defendants in the proceedings. An Affidavit sworn by Mr Bernard King for the Plaintiff on 17 September 2024 averred (at paragraph 5-6): (i) that the motion seeking to substitute Pepper Finance Corporation Ireland DAC as Plaintiff was served on Patrick Delaney solicitor; and (ii) that Ivor Fitzpatrick had previously corresponded with Patrick Delaney but stated that the First 9 Named Defendant was "strictly speaking" unrepresented as no appearance had been entered on his behalf. No explanation has been given by Mr Taylor, Mr King or Mr Macken for the contradictory content of their affidavits. 2.5. It is thus clear there was correspondence and contact with Mr Delaney. Affidavits sworn on behalf of the Plaintiff's solicitor state he was on record, they had previously corresponded with him and that they sought to serve him with documents in relation to the case. In the absence of a fulsome explanation for the contradictory evidence from the deponents, the Court ought to conclude that there was an irregularity in the process or procedure obtaining the Judgment.” It was further stated at para. 4.4 that: “4.4. Further, it is clear from the evidence that the Plaintiff's solicitor had been in contact with the then Plaintiff's solicitors prior to the judgment being entered in default. They have not revealed the content of that communication and now seek to deny any such contact, but this cannot be correct. When they sought to enforce the Judgment many years after it was obtained, they purported to serve Mr Delaney: where did the understanding that he was acting come from?” 31. Written submissions in reply were delivered on behalf of the Plaintiff in March, 2026. At para. 29 of the said written submissions, it was stated that the judgment dated the 6th of November, 2018, was served directly on the First Defendant by letter dated the 14th of November, 2018 and that: “Mr Delaney's office replied by letter dated 20 November 2018 acknowledging that the First Named Defendant had received the letter enclosing the Judgment.” 10 32. This reference to correspondence dating to the 20th of November, 2018, was not supported by the affidavit evidence and was entirely at odds with averments made to the effect that there had been no correspondence. 33. At the close of the hearing of this application before me, counsel for the Plaintiff offered to produce the letter referenced in the written submissions on behalf of the Plaintiff. I afforded counsel for the First Defendant the opportunity to take instructions on whether there was consent to me receiving this letter. Having taken instructions, it was indicated by counsel on behalf of the First Defendant that there was no objection to the letter been provided to me, even at that late stage, but on the basis that there had been a failure to explain contradictory averments on affidavit or to address whether there was further correspondence. 34. After the conclusion of the hearing, an affidavit was filed on the 2nd of April, 2026, at my request, for the purpose of exhibiting the letter which had been handed into court at the conclusion of the hearing. The letter as handed into Court at the close of the hearing and exhibited in the said affidavit is a letter from the First Defendant’s former, now struck off, solicitor addressed to the Plaintiff’s solicitors and states: “We refer to the above mater and in particular your letter of November 14th addressed to our above named client. Please note that our client is surprised at the contents of your correspondence in that it was his understanding, together with the understanding of the other Defendants, that this matter was resolved some time ago following discussions with his Accountant Joe Cunnane, with Pepper. Perhaps you might confirm the correct position with your clients as one of the other Defendants has recently received correspondence from Ian Wigglesworth in Pepper and you might also confirm when replying as to whether judgment has been obtained against Mr. Georg Ward solely or against all three Defendants. We await hearing from you.” 11 35. There is an evidential vacuum as to how the existence of this letter falls to be reconciled with averments on Affidavit by the Plaintiff’s solicitor categorically to the effect that there had been no correspondence. It is also unclear as to whether there was a response to this letter or any further contact from the First Defendant’s former solicitor. 36. In support of his set aside application, the First Defendant identifies several lines of defence which he maintains demonstrate real prospects of defending the claim, including: i. No proper proof of title in circumstances where it is alleged that the original Affidavit of Debt did not adequately prove that the Plaintiff owned the debt at the time; ii. Lack of Particulars and specifically no clear explanation of how €224,000 became €309,054.73 and how payments, receiver proceeds or interest were calculated; iii. The imposition of penalty interest in circumstances where default interest of 6% p.a. is alleged to be an unlawful penalty, not a genuine pre-estimate of loss; iv. Undervalue sale in circumstances where it is alleged that the secured property was sold at an undervalue with the result that the First Defendant claims a credit should be applied; v. Settlement of claim in circumstances where in 2017–2018, the First Defendant’s accountant negotiated with Pepper and deposes in support of this application to having entered an agreement to settle entire debt for €32,000 and in consequence of this agreement arranged funds (€30k loans + €2k contribution) only to find that Pepper refused to honour the agreement entered into by staff no longer in the employment of Pepper. Extensive email correspondence is exhibited in support of the existence of negotiations but there is no written record of a concluded, Board approved agreement. 37. It is contended that no real defence exists in circumstances where the interest charged, the receiver sale and calculations are contractually valid. Pepper’s position is that finality of litigation should prevail. It is stressed on behalf of Pepper that the alleged 12 settlement was “Without prejudice / subject to contract” and required investor approval which was never granted. APPLICABLE PRINCIPLES 38. Under Order 13, Rule 13 of the RSC I have a power to set aside a final judgment obtained due to default upon such terms as may be just, albeit a different test applies whether judgment has been obtained “irregularly” or “regularly”. Order 27, Rule 15(2) of the RSC is also instructive in guiding the exercise of the power to set aside a judgment obtained in default. 39. Where I am satisfied that there is some irregularity in the proceedings or the process by which judgment in default was obtained, the RSC envisage that I should set aside the judgment obtained (Order 13, Rule 13(a)). Default judgments are commonly set aside under Order 13, Rule 13(a) where it is established that there has been a defect in service. The requirement to set aside an irregularly obtained judgment is not confined to service issues, however, and has also been found to apply in other circumstances, such as where there is a failure to state the basis upon which the court should assume jurisdiction on the plenary summons for the purposes of the Brussels I Regulation recast (Grovit v. Jansen [2019] 2 I.R. 614; [2018] IEHC 22 as cited in Delany and McGrath on Civil Procedures (5 ed)). 40. Where the judgment is obtained in regular manner, I retain a discretion to set aside judgment and give leave to defend proceedings in accordance with Order 13, Rule 13(b) and Order 27, Rule 15. In referring to this set aside power the rules require me to be satisfied as to the existence of “special circumstances” existing to explain and justify the default which led to judgment being entered (Order 27, Rule 15), the defendant has a good defence to the claim and the interests of justice require that leave to defend be given (Order 13, Rule 13(b)). 41. In approaching the application of the special circumstances’ jurisdiction in this case, both sides rely on the same Supreme Court / Court of Appeal authorities but apply them very differently. Authorities referred to in written and oral submissions include Ulster Bank Ireland Ltd v. Brid Kavanagh t/a Barony B&B [2014] IEHС 299; Bank of Ireland 13 v O'Malley [2019] IESC 84; Bank of Ireland v McNeela [2020] IEHC 359; Everyday Finance & Ors v. White [2023] IEHC 624; De Souza v. Liffey Meats (Cavan) [2023] IEHC 402; Mars Capital Finance Ireland DAC v. Temple [2023] IEHC 94; Reidy v. Ryan [2024] IEHC 597; Bank of Ireland v O'Boyle [2025] IEHC 219 and Healy v. Ulster Bank Ireland Ltd. [2020] IECA 332. 42. The parties are agreed that where a judgment is regular on its face, the discretion to set it aside must be exercised sparingly. From the case law identified in the parties’ submissions, special circumstances justifying the exercise of the discretion require something objectively exceptional or unusual which is not attributable to conscious or reckless default by the defendant such that leaving the judgment standing would be unjust. Indeed, it is clear from the very wording of Order 13, Rule 13(b) that this discretion falls to be exercised only when the evidence grounding the application demonstrates that the defendant has a good defence to a plaintiff’s claim and that the interests of justice require that leave to defend should be given. 43. It is common case that I am entitled to consider the merits of any identified defence in exercising my discretion. Although it is not necessary for a defendant to show the defence will succeed, the defence identified must have a real prospect of success (Ulster Bank Limited v. Kavanagh [2014] IEHC 299 and Bank of Ireland v. McNeela [2020] IEHC 359). In establishing the strength of the proposed defence, a defendant cannot rely on judicial decisions that post-date a default judgment as a basis for applying to set it aside (Ulster Bank Limited v. Kavanagh). 44. While Order 13, Rule 13 does not impose any time limit within which an application to set aside must be brought, significant and unexplained delay in bringing the application may be relied upon to refuse the application on grounds of prejudice to the Plaintiff (O’Donovan Dairy Services Ltd. v. Cashin [2016] IEHC 476). 45. In the case of a regularly obtained judgment and reading Order 27, Rule 15 RSC I and Order 13, Rule 13 together, I must decide whether “special circumstances” justify reopening the judgment. This should only occur if a credible defence on the merits has been established in evidence grounding the application and the interests of justice favour judgment being set aside. 14 46. In short, when exercising a power to set aside a regularly obtained judgment, I am required to balance the regularity of the judgment, the explanation for default and delay, whether a real defence is demonstrated together with issues of prejudice and finality of litigation and any other identified relevant interest of justice consideration, in deciding whether it is appropriate in the special circumstances of the case to exercise a power to set aside a final judgment obtained in accordance with the RSC. ANALYSIS AND DECISION 47. The First Defendant frames this application as one under both Order 13, Rules 13(a) and (b). Whether judgment irregularly obtained? 48. In the first instance it is argued that a court might properly treat the judgment as irregularly obtained where the debt is not properly proven thereby entitling the defendant to an order under Order 13, Rule 13(a). This claim is made on two grounds. 49. Firstly, it was contended on behalf of the First Defendant that serious questions arose as to the regularity of the judgment obtained and the justice of allowing the judgment to stand in the light of averments from which it was clear that correspondence has passed but the content and extent of this correspondence was unknown. In the light of contradictory averments regarding correspondence between the Plaintiff and the First Defendant which has not been explained, it was argued that it should be assumed that there was some irregularity in the manner in which judgment was obtained. 50. Secondly, it is contended that documentary evidence of title to the alleged debt has not been adduced and that a bare averment on affidavit is insufficient and, in consequence, the judgment should be treated as irregularly obtained. 51. While the evidential position regarding correspondence between the Plaintiff’s solicitor and the First Defendant’s former solicitor following the service of proceedings is far from satisfactory and is a factor which I consider later within the rubric of special considerations and the interests of justice in this case, I cannot infer that judgment was 15 irregularly obtained in this sense given that it is acknowledged that the summons was served on the First Defendant and his solicitor neglected to put in an appearance. 52. In the absence of an appearance, the Plaintiff was fully entitled under the Rules to apply for judgment in default. I cannot assume irregularity on the basis that the application for judgment in default was made notwithstanding that there was some correspondence around this time as between solicitors. It has not been established that this correspondence took place before judgment was entered. Nor has it been established that there was any confusion at the time as to whether there was a solicitor on record. There is no evidence that judgment was obtained in some secret or clandestine manner. 53. As for the second argument, while it is true that the Affidavit of Debt exhibits documentation evidencing the transfer of the debt from Bank of Scotland (Ireland) Limited to Bank of Scotland Plc, nothing is exhibited to support the averment that Ennis had acquired that loan when seeking liberty to enter judgment. I am referred to Bank of Ireland v. O’Malley (at para. 5.2) where the obligation on any plaintiff to produce prima facie evidence of their debt if they wish the court to grant summary judgment or, in the absence of the filing of an appearance by the defendant, they bring an application for judgment in the Central Office, was reiterated. 54. It is contended on behalf of the First Defendant that judgment ought not to have been entered in the office where it was not clear that the Plaintiff owned the alleged debt. It is that judgment obtained in this manner is therefore irregular. Given its reliance on Bank of Ireland v. O’Malley in advancing this argument and because the Supreme Court judgment in that case ([2019] IESC 84) post-dated the entry of default judgment in 2018, counsel addressed the decision in Ulster Bank Ireland Ltd. v. Kavanagh in argument. In that case, an argument that judgment was irregularly obtained due to reliance on hearsay evidence was rejected as an impermissible attempt to treat a judgment as irregularly obtained through retrospective reliance on recent jurisprudence. 55. On behalf of the First Defendant, it is sought to distinguish Ulster Bank Ireland Ltd. v. Kavanagh. The point of distinction urged on me amounts to a contention that there has been no change in the law and Bank of Ireland v. O’Malley is relied upon as authority for the long-standing and established fundamental requirement on a Plaintiff to adduce prima facie evidence of ownership of the debt as a precondition to the entry of 16 judgment. The contention urged is that a failure to adduce documentary evidence of ownership means that the basic proofs are not in order such that judgment should never have been entered. 56. I am not persuaded that an alleged deficiency in proof of ownership of the debt alleged establishes an irregularity in the way judgment was obtained. There was evidence of ownership to ground the entry of judgment in default of appearance. This evidence was in the form of a sworn averment. Any issue which the defendant wishes to raise regarding the adequacy of this evidence is a defence point. I am satisfied that the identified failure to exhibit documentary evidence of title to the alleged debt does not render judgment obtained in default of appearance irregular such that it must be set aside. It is, however, a factor which I may consider when assessing the merits of the defence which the First Defendant might have available to him were judgment set aside and liberty to defend the proceedings granted. In this regard, I am satisfied that I may properly have regard to a line of defence which would have been open at the time but was not pursued due to the circumstances which led to the failure to enter an appearance, even where the defence point was not taken at that time as the proceedings were undefended and has been recognised as being of substance in decisions handed down in the intervening time since judgment was obtained. 57. The First Defendant has not persuaded me that judgment was other than regularly obtained in default of appearance in accordance with the RSC in this case, the summons having been duly served on the First Defendant and it being common case that an appearance was not entered thereto. I am satisfied that I should not set aside the judgment obtained in default under Order 13,Rule 13(a) RSC on the basis that judgment was irregularly obtained. Whether judgment regularly obtained should be set aside? 58. While an argument was made that judgment had been irregularly obtained, the First Defendants urges that even where a judgment is technically regular, it may and should still be set aside where special circumstances explaining and justifying the default exist, the interests of justice so require and the availability of a good defence is demonstrated. 17 These three factors can be interconnected. As in this case, those factors which constitute special circumstances may also be relevant to an assessment of the interests of justice and the question of whether a good defence has been demonstrated. 59. Specifically, the special circumstances identified on behalf of the First Defendant are that the First Defendant was effectively unrepresented, seemingly without knowing it, due to a combination of factors which include the illness of his instructed solicitor’s parent, serious gambling issues and misconduct on the part of the said instructed solicitor of such magnitude as to lead to him being struck off. It is claimed, however, that this is not a case of mere negligence but one where, a solicitor accepted instructions, was alerted to an identified basis for defending the proceedings and not only failed to act but, allegedly, left his client to believe the case was being handled over a protracted period. 60. It is argued that special circumstances and injustice warranting the exercise of a discretion under Order 13, Rule 13(b) arise where the defendant instructed a solicitor to enter an appearance, the solicitor failed to do so but did not disclose his failings or take steps to address them, the defendant was not personally at fault and/or real points of defence are identified. These combined factors are relied upon both to explain why the default occurred and to contend that the test applicable to the exercise of my set aside jurisdiction is met on the unusual circumstances of this case. Emphasis is placed on the fact that the First Defendant asserts previous settlement of the underlying claim as relevant not only to the existence of special circumstances in this case but to demonstrate the existence of a good defence and as a factor weighing in favour of set aside of the judgment having regard to the overall interests of justice. 61. For its part, the Plaintiff resists this application emphasising that no appearance was entered, a default judgment was properly entered in the Central Office and the Plaintiff complied strictly with procedural requirements. It is contended that the phrase “special circumstances” does not include ordinary solicitor negligence, miscommunication and client inattention and that the high threshold is not met in this case. 62. Looking first at the circumstances which led to judgment being obtained in default of appearance to establish whether special circumstances exist capable of explaining the 18 default and justifying set aside, in my view the facts established on affidavit in support of this application are unusual and concerning. It is firstly clear that the First Defendant contacted his former solicitor shortly after the service on him of proceedings and instructed the defence of the proceedings ever before an application for judgment in default was made. The First Defendant’s averments in this regard are corroborated by contemporaneous emails exhibited in support of this set aside application. 63. It is noteworthy too that in seeking leave to execute on foot of a default judgment, the Plaintiff served the application not on the unrepresented First Defendant but on his former solicitor. Logically, this suggested that there must have been some engagement between the former solicitor on the First Defendant’s behalf and the Plaintiff, despite a denial on the part of the Plaintiff of correspondence from the First Defendant’s former solicitor. If communication in line with the First Defendant’s instructions took place, then the Plaintiff would have been on notice that instructions to defend proceedings had been given, a factor which could give the judgment obtained in default a somewhat different complexion, depending on the content of the communication. 64. It has transpired that notwithstanding an express averment to the contrary on behalf of the Plaintiff, there had in fact been correspondence from the said former solicitor. The existence of this correspondence was only disclosed in written submissions filed in advance of the hearing before me and remains shrouded in mystery. While I was made aware following enquiry at the conclusion of the hearing and with the consent of the First Defendant that the correspondence referred to in written submissions is a letter from the Defendant’s former solicitor dated the 20th of November, 2018, in which he stated that his client was surprised at the contents of correspondence received dated the 14th of November, 2018, as it was his understanding that “the matter was resolved some time ago following discussions with his Accountant Joe Cunnane with Pepper”, this letter had not been put on affidavit prior to the hearing before me. As already noted, no appropriate attempt has been made to explain the earlier denial of this correspondence or to expand on whether any other correspondence existed through affidavit evidence exchanged in advance of the hearing. 65. On its face, the letter belatedly disclosed at the conclusion of the hearing raised several queries and invited a response, begging the question as to whether there was other 19 correspondence during this period relevant to the late exercise of a discretion to set aside a judgment obtained more than seven years ago. To reiterate, however, there has been a complete failure on the part of the Plaintiff to explain contradictory averments made on its behalf and set out on affidavit the extent of any correspondence including whether, for example, there was any response to the letter of the 14th of November, 2018. Putting it mildly, it is most unsatisfactory that it was denied on behalf of the Plaintiff that any correspondence existed with the First Defendant’s former solicitor in affidavits sworn in this very application when this was patently untrue. In belatedly producing one letter, the absence of any attempt to explain why misleading evidence was put before the Court, to address the significance of this letter in evidence and to address the position regarding any further correspondence cannot be ignored. It carries consequences for the trust I can repose in the case made on behalf of the Plaintiff in seeking to stand over a judgment obtained in default. 66. In circumstances where the First Defendant has deposed to a belief that some engagement occurred on foot of his instructions and where this was point blank denied on behalf of the Plaintiff, something more was required by way of affidavit evidence to address the concerns arising in relation to the judgment obtained in this case in the face of the First Defendant’s instructions to his solicitor to defend the claim. Given the evidential deficit, it is not possible to be satisfied that there has not been a failure to put information relevant to the justice of allowing the judgment to stand before the Court. 67. The letter dated 20th of November, 2018, belatedly disclosed by solicitors on behalf of the Plaintiff demonstrates not only that the First Defendant has always maintained that the claim had been settled but also that this defence had been formally communicated to the Plaintiff. It is significant that instructions to defend the claim on the basis that it had been settled were given to his solicitor before judgment was entered in default but, through no fault of the First Defendant, the necessary steps to defend proceedings were never taken by the said solicitor. Its significance is twofold. It establishes that this is not a case of a defendant who had their head in the sand and is belatedly making a new case as a delaying or avoidance tactic. It carries the further significance, however, that the Plaintiff has been aware from an early stage that the First Defendant maintained that he had a full defence to these proceedings on the basis of a prior settlement. The weight 20 to be given to the First Defendant’s reliance on the finality of its judgment and its delay in taking steps to enforce on foot of the judgment falls to be measured in this context. 68. Were the First Defendant’s former solicitor properly acting on his instructions, the letter dated the 20th of November, 2018, would not have been the first such correspondence. Even if it was the first such correspondence, however, consistent with his instructions and his duty to the First Defendant, the First Defendant’s former solicitor ought properly to have pressed for a response to his correspondence and/or to have moved to set aside judgment at that time. Patently, in dereliction of duty and contrary to his instructions, he did not do so. 69. In circumstances where it subsequently emerged that the said solicitor was found guilty of professional misconduct due to embezzlement of client funds consequent upon a gambling addiction, I am satisfied that it may be inferred when regard is had to the evidence as a whole and on the account he gives on affidavit, that the First Defendant is not the victim of “ordinary” professional negligence. I have concluded that the level of dysfunction pertaining to his former solicitor’s practice was truly exceptional. Such a conclusion is consistent both with the former solicitor’s apparent failure to communicate to the First Defendant that he had failed to enter an appearance, to explain the effect of a judgment obtained in default and to identify and take instructions on the steps available in the circumstances. Such steps would have included moving without delay to seek to set aside a judgment obtained in default in circumstances where the solicitor had failed for stated reasons to act on foot of instructions, which he had accepted, to defend proceedings by entering an appearance and having regard to the evidence that proceedings had settled. Severe dysfunction in the management of the First Defendant’s solicitor’s professional also falls to be inferred from the absence of any evidence of follow up to the letter of the 20th of November, 2018. 70. As noted above, the fact that it was formally communicated so soon after judgment had been entered that the First Defendant maintained that the dispute had been settled is a factor which must be considered as part of the circumstances of this application. I consider it undermines the Plaintiff’s entitlement to assert the finality of the judgment and lessens the weight I should accord this as a factor, most particularly in the absence 21 of any evidence of a substantive response. It is now apparent that the Plaintiff has long been aware that a defence on the basis that the claim had been settled was asserted. 71. On the evidence before me, I am satisfied that judgment was entered in default of appearance due to serious solicitor omissions in circumstances where it is contended that the said solicitor agreed to take steps necessary to defend the proceedings having been instructed that the underlying claim was the subject of a prior settlement agreement and where there was formal engagement with the Plaintiff on behalf of the First Defendant in this regard by his former solicitor in and around the time judgment was entered, albeit the extent of this engagement is unclear. I am satisfied that these various factors combine to give rise to special circumstances. Interests of Justice 72. From an interest of justice perspective, I am mindful that if judgment is not set aside, the First Defendant will be denied an opportunity to defend the claim without being heard. I have considered whether the interests of justice in the circumstances are not safeguarded by the existence of a claim in professional negligence as against the First Defendant’s former solicitor. A professional negligence action against his former solicitor carries considerable uncertainty as to what the outcome would be. As found in Everyday Finance DAC & Ors. v. White & Ors. [2023] IEHC 624, such a remedy is not an attractive option. I do not consider that the potential existence of a claim in professional negligence would meet the justice of the case by reason of factors like those identified in AIB v. Lyons [2004] IEHC 129 including the hazards of discharging the burden of proof which would rest on the defendant in such an action and would take a considerable length of time with no guarantee of success. There is the added factor that judgment was entered due to solicitor’s default in this case more than six years before any enforcement steps were taken on behalf of the Plaintiff to enforce the judgment. The passage of time has a bearing on the prospect of success of any such negligence proceedings and delay in taking such steps may in part be attributable to the failure on the part of the Plaintiff to move promptly to take enforcement steps because the First Defendant was not alerted to the fact that his interests had not been safeguarded by his former solicitor. 22 73. Of course, had the Plaintiff responded through their solicitor to the correspondence of the 20th of November, 2018, clarifying the position, the relative justice of setting aside a default judgment at this remove could be differently calibrated, depending on the content of that response. 74. While it is very possible that sight of the correspondence in question between the First Defendant’s former solicitor and the Plaintiff or the Plaintiff’s solicitor in its totality would allow a court to be satisfied that any problems arising from untrue averments on affidavit in this application should not affect the judgment entered in 2018 and its enforceability, in the absence of any satisfactory evidence addressed to the state and extent of the correspondence, I cannot so conclude for the purpose of this application. Indeed, although not a factor identified in argument before me, it occurs to me that by waiting until more than six years from the putative settlement, to take any steps on foot of the judgment obtained in default, the prospect arises that in addition to depriving the First Defendant of a viable claim in professional negligence as against his former solicitor, the Plaintiff (whether by design or accident) also potentially avoided the precipitation of separate proceedings in which the First Defendant sued on the settlement agreement in accordance with time limits under the Statute of Limitations, 1957. 75. The evidential vacuum in relation to correspondence between solicitors leaves me with a concern that allowing the judgment to stand offends the interests of justice having regard to the actual knowledge of the Plaintiff as to the sustainability of the judgment obtained in default, notwithstanding the assertion of a viable defence that the claim had been settled. Delay 76. I am mindful that there is prejudice to the Plaintiff, who had the benefit of a final order, if I exercise a set aside discretion at this late stage. Where proceedings are reactivated consequent upon the making of an order setting aside judgment, the Plaintiff will not only lose the benefit of the order long since obtained but will also now be required to pursue a claim in litigation years after the events giving rise to the claim. 23 77. Concerning as the issues which arose with the First Defendant’s solicitors are from an administration of justice perspective, I do not treat delay in the order of some 7 years lightly from an interest of justice perspective. In this regard, I cannot ignore the fact that issues with the First Defendant’s solicitor appear to have been longstanding such that the First Defendant admits that he ceased communicating with him by an unspecified date and his professional difficulties and removal from the Roll of Solicitors was publicized in the media with the result that he engaged different solicitors to deal with other work. The First Defendant’s evidence as to his attempts at engagement with his former solicitor and when he realised that there was a problem is sparse. 78. In the circumstances of this case, the suggestion that the First Defendant’s reliance on his former solicitor to take the necessary steps was “naïve” but honest and legitimate also stretches credulity, particularly given the protracted period of delay on the part of the First Defendant in taking any steps in respect of these proceedings, ultimately only doing so after leave to execute on foot of the judgment was obtained, albeit without notice to him. It is relevant in this regard that the failure of his previous solicitor was not hidden from the First Defendant by the Plaintiff. Afterall, the First Defendant received communication from the Plaintiff advising him of the fact that judgment had been entered against him. The First Defendant acknowledges receipt of this correspondence and forwarded it to his former solicitor, claiming that he did not understand its significance and did not pursue his solicitor in relation to the matter. 79. While I appreciate that a layperson might not necessarily understand the implications of this correspondence which advised that judgment had been entered, the First Defendant’s inaction in failing to enquire into the status of proceedings when his solicitor ceased communicating with him and in failing to follow up with an alternative solicitor is not easy to forgive. It is also difficult to reconcile with his contention in support of this application to set aside judgment entered that a settlement had been reached between his accountant on his behalf and the Plaintiff. 80. The plausibility of the First Defendant’s contention that he was taken by surprise by the finality of the judgment entered against him in 2018 is strained when coupled with the fact that he must have been aware that no monies had been paid to the Plaintiff on foot 24 of his accountant’s endeavours on his behalf and notwithstanding the existence of proceedings and the entry of judgment against him. This belies the legitimacy of drawing comfort from any assurance given by the First Defendant’s former solicitor that steps necessary to protect his interests would be taken and had been taken over such a protracted period. 81. The First Defendant’s explanation for the totality of delay is therefore not very compelling. Whatever about his “naïve” reliance on his solicitor to take all necessary steps to defend the proceedings when he first instructed him, ongoing reliance on his former solicitor when his solicitor ceased communicating with him and he was aware that he had been struck off due to professional misconduct, was not reasonable. 82. My reservations notwithstanding, I am prepared to accept that the First Defendant was lulled into a false sense that further steps would be required whereby he could be heard as to his defence of the underlying claim before judgment could be enforced against him due to his reliance on his former solicitor to defend his interests when proceedings were first served and the passage of time without any further steps being taken to explain his delay in moving to set aside judgment. In accepting that his inaction is not fatal to this application despite the length of his delay, I am mindful of the particular circumstances of this case which included that the Defendants had proactively engaged through an accountant to settle proceedings and understood from the said accountant that those negotiations had resulted in an agreement to pay a fraction of the debt in settlement of the dispute. I add to this the documented fact that as soon as proceedings were served on him, the First Defendant instructed solicitors to defend proceedings. By way of further evidence of a bona fide intention to defend proceedings rather than avoid them, the Defendants’ accountant followed up with the instructed solicitor ever before judgment in default was obtained. 83. I am also mindful that there was a significant period of inaction on the part of the Plaintiff. I have no doubt that had steps been taken any earlier to seek leave to execute on foot of the judgment obtained, it would have precipitated earlier recourse to alternative solicitors and the bringing of this application, if not also other proceedings. The speed with which this application was brought as soon as the First Defendant was 25 put on notice of an intention to seek leave to execute on foot of the 2018 judgment is testament to this reality. 84. Inaction on the part of the Plaintiff can never justify delay on the part of a defendant in moving to set aside a default judgment but it is a relevant factor in this case because it explains why the First Defendant did not find it necessary at an earlier stage to seek alternative legal advice. While the Plaintiff relies on the finality of the judgment it obtained, it has long been aware that the First Defendant asserted a defence to this claim. It must also have been aware that if it applied to execute on foot of the judgment, it could precipitate further legal proceeding. Its delay in seeking leave to execute, in the circumstances, is a factor which undermines the strength of its entitlement to assert the finality of the judgment obtained as part of an exercise in weighing the interests of justice. 85. I have been persuaded by the case made on behalf of the First Defendant that in addition to existence of special circumstances, I can also be satisfied that the interests of justice are served by setting aside judgment notwithstanding the undoubted delay in seeking to set aside an otherwise final judgment. It remains to be considered whether the First Defendant has also demonstrated a real prospect of defending the claim, a precondition to the exercise of a set aside jurisdiction under Order 13, Rule 13(b) of the RSC . Whether a Good Defence Demonstrated 86. A series of potential defences identified on behalf of the First Defendant, as outlined above, include: I. The existence of a prior settlement agreement; II. The lack of particularisation of the sum claimed in line with the decision in Bank of Ireland v. O’Malley; III. The Plaintiff’s failure to prove title (citing Mars Capital Finance Ireland DAC (In substitution for EBSE Mortgage Finance) v. Temple [2023] IEHC 94); and IV. The imposition of penalty surcharge interest 26 87. While these lines of defence are not without difficulty and may well not withstand challenge on a contested application for judgment having regard to the various factors urged on behalf of the Plaintiff including, for example, that settlement negotiations were expressly “subject to contract” and no formal agreement was ever reduced to writing, it seems to me that several of the defence arguments identified are sufficient to cross the arguability threshold and a real prospect of success has been demonstrated. 88. Specifically, while the documentation exhibited certainly refers to the need to obtain approval for any settlement sums proposed and there is no evidence that any such approval was ever obtained, there is sworn evidence from the accountant who negotiated on behalf of the Defendants that agreement had been reached. The negotiator on behalf of the Plaintiff has not sworn an affidavit on this application and the Plaintiff relies only on the documents on file which record negotiations but not a concluded agreement and its practice as evidence in response. 89. Furthermore, in terms of the lack of particularisation of the claim in line with Bank of Ireland v. O’Malley, I am satisfied that the fact that the point is supported by recent authority does not mean it is irrelevant to an application to set aside where an important factor is whether the defendant has a good defence to the claim which was open to him when judgment was obtained in default of appearance. I am supported in this conclusion by the decision in Bank of Ireland v. Neela [2020] IEHC 359 where the requirement for particularisation set out in Order 4, Rule 4 of the RSC and developed in Bank of Ireland v. O’Malley was found to be available as a defence point in a case in which judgment had already been obtained in default prior to the decision in Bank of Ireland v. O’Malley. This was because the extent of indebtedness was disputed and the summons contained no breakdown of the calculation of the sum claimed as between principal and interest and there was no pleading as regards rates of interest. 90. In essence, the Court in Bank of Ireland v. Neela was satisfied that the line of defence did not depend on the decision in Bank of Ireland v. O’Malley to substantiate it and a point of defence with a real prospect of success was found to have been established. I am similarly satisfied that a real issue arises in relation to the computation of the sums due and the extent of the debt claimed as outstanding in this case. 27 91. As for the requirement to prove title to the debt, while the affidavit evidence asserts ownership of the debt to ground the application for judgment in default of appearance in the office, the failure to establish ownership by exhibiting documents supporting the averments made in the manner identified in Mars Capital Finance Ireland DAC (In substitution for EBS Mortgage Finance) v. Temple [2023] IEHC 94 might, in a defended action and where ownership is contested as it is in this case, ultimately lead to a conclusion that transfer of title has not been established. Were such a finding made on the evidence adduced following a full hearing, then neither Ennis as putative owner in 2018 nor Pepper as putative owner in 2026 would be entitled to judgment. 92. Finally, the First Defendant also identified authority for the proposition that a surcharge rate of 6% such as that provided for under the loan agreement in this case was, on the evidence in that case (ACC Bank Plc v. Friends First Managed Pensions Funds Ltd. & Ors. [2012] IEHC 435), a penalty and therefore unenforceable. As reiterated in Bank of Ireland v. O’Boyle, the law prohibits a penalty clause that, without commercial justification, provides for the payment of monies in the event of a breach to secure the performance of the contract rather than to compensate for loss. I cannot determine on the basis of the material before me whether the penalty clause in issue in this case is a genuine, covenanted pre-estimate of damage (permissible liquidated damages) or a penalty (impermissible). Any ultimate determination of this issue would depend on the evidence. 93. The burden to establish a real defence lies on the First Defendant in this application and this burden is not met by simple reliance on a decision on the evidence adduced in a different case. That said, on the authority of ACC Bank Plc, if evidence were to be adduced to substantiate the claim that the interest levied in this case is impermissible penalty interest, then clearly a further avenue of defending proceedings opens up. In the absence of properly directed evidence in this case and in circumstances where I am otherwise satisfied that a real basis for defending the action has been identified, it is ultimately not necessary for me to determine whether a sufficient basis has been advanced to support a conclusion that a line of defence based on an asserted penalty interest reaches a level of “good” or “real”. Overview / Cumulative Test 28 94. Having regard to the totality of circumstances in this case, I am satisfied that the special circumstances threshold has been crossed having regard to the serious solicitor failings for which the First Defendant is blameless, the contended for earlier settlement of the debt and the question mark which arises as to the circumstances in which a default judgment was obtained in view of undisclosed correspondence with a solicitor who had instructions to defend proceedings but failed to do so. 95. From an interests of justice perspective, I have concluded that a claim in professional negligence is not an effective remedy and the lack of clarity in relation to correspondence which occurred between the First Defendant’s former solicitor and the Plaintiff is a factor which detracts from the Plaintiff’s entitlement to place heavy reliance on its right to finality and assertions of prejudice given the questions arising from an evidential vacuum in this regard. Although the explanation for delay is not wholly satisfactory, justice requires that the First Defendant’s inactivity must be judged leniently in the context of reliance on his former solicitor, his assertion (with the support of his accountant) of prior settlement and the total inactivity of the Plaintiff on foot of the judgment for most of the period. 96. When all these circumstances are combined with the existence of a real defence on the merits, I am satisfied that a legitimate basis for the exercise of the set aside jurisdiction has been laid and that it is in the interests of justice to order accordingly. CONCLUSION 97. For the reasons given, I am satisfied that special circumstances are demonstrated in this case which both explain the default order and justify the setting aside of the default order on the very particular facts of this case. The special circumstances which should be reflected in the order setting aside judgment may be stated as serious solicitor failings for which the First Defendant is blameless combined with concerns arising from the state of the evidence relating to correspondence between the said solicitor and the Plaintiff’s solicitor, evidence of an alleged earlier settlement of a claim in respect of the underlying debt, the explanation offered for delay and the lines of defence identified. 29 98. The proceedings will be listed for mention before me following the expiry of fourteen days from the date of electronic delivery of this judgment for the purpose of finalising orders in this matter and I will hear the parties in respect of any consequential matters arising. 30