The Defence and Counterclaim filed out of time
11.The first reason advanced by the claimants for summary judgment is that the Defence was filed out of time. It was filed with the Counterclaim eight or possibly ten days late on 19 August 2021.12.That is not a ground for summary judgment listed under CPR 24.2. I take the list to be exhaustive. The remedy available to a claimant where a Defence is not filed by the time it is due, either according to the rules or an order of the court, is provided by CPR 15.3: the claimant may apply for judgment in default. The claimants did not so apply. If they had applied for judgment in default instead of summary judgment on the date of the Application Notice, the application in default would have been dismissed, see CPR 12.3(1). The claim would have moved forward on the cases advanced in the pleadings filed. The claimants cannot circumvent CPR 12.3(1) by framing their application as an application for summary judgment.13.If it were necessary to grant the defendants relief from sanctions pursuant to CPR 3.9, which I doubt, I grant such relief. The breach was neither serious nor significant, given the effect of CPR 12.3(1). Following late filing of the Defence and Counterclaim, the claimants made no objection but filed a Reply and Defence to Counterclaim which suggests that they did not find the late filing either serious or significant. In his written submissions Mr Wood says that at the time the Defence and Counterclaim should have been and later was filed, the defendants had other legal representation. Mr Wood is unable to give a reason for the delay in filing. I am unable to say whether the reason was good or bad. However in all the circumstances of the case it seems to me that retrospective permission to file the Defence and Counterclaim late should be given.