Premium Contractor Solution LLC v Ying Kang [2026] EWHC 2014 (KB)

[2026] EWHC 2014 (KB)Case No KB-2023-002053 &KB-2025-001927
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/07/2026
Before
MRS JUSTICE FOSTER DBE
Between
PREMIUM CONTRACTOR SOLUTION LLCClaimantMRS YING KANGDefendant
Graeme Kirk (instructed by Taylor Rose MW) for claimantNicholas Towers (instructed by Clarke Willmott LLP) for DefendantHearing Hearing dates: 6 th November 2025
Approved JudgmentThis judgment was handed down remotely at 3.00pm on 30/07/2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE FOSTER DBE
[1]This is an application by Ms Kang dated 25 March 2025 to set aside a judgment entered in default against her on 1 November 2023. She also claims summary judgment against the respondent on the basis the claim has no prospect of succeeding. Alternatively, she invites the court to strike the claim under CPR 3.4(2)(a) under the inherent jurisdiction of the court.[2]The claimant in the main action, who is the respondent to the application before the Court, is Premium Contractor Solution LLC a company established in the United States of America with an address at Suite B 26943 Westwood Road Westlake Ohio 44145. They are referred to here as “Premium”.[3]On 1 November 2023 a judgment in default in the sum of £2,156,000.32 was obtained by Premium in the Kings Bench Division against Ms Kang, defendant in the main action. It was expressed in terms of a third-party claim against her. Premium state it is a claim in respect of a claim against them for fraud, breach of contract and other actions begun in the US District Court for the Southern District of Ohio involving the purchase of face masks from or through Ms Kang. On 15 March 2022 a motion for default judgment had been entered against her in Ohio under the equivalent of CPR Part 12. Damages were assessed in the sum of US$2,633,262.25 by further order of the Ohio court on 22nd April 2022.[4]In this jurisdiction following the default judgment of November 2023 an interim and thereafter a final charging order were made on behalf of Premium, the latter on 20 May 2024, over property in Bristol, England. By a claim issued on 20 November 2024 an order for sale was sought of the property of which Ms Kang is the owner.[5]The Claim form said the following under “Brief details of Claim”:
“In proceedings issued by 3M Company ("3M") in the US District Court for the Southern District of Ohio, the Claimant was found liable to 3M in relation to allegations of misrepresentation in respect of the identity of Personal Protective Equipment face coverings/masks. In the same proceedings, the Claimant issued a third-party claim for an indemnity from the Defendant on the basis that the Claimant had relied upon her representations, and it was awarded damages against her in the sum of (US)$2,633,262.25. By these proceedings the Claimant seeks judgment in the equivalent sum, plus further interest (pursuant to s.35A of the Senior Courts Act 1981) and costs, so that judgment may be enforced within the jurisdiction. USD2,633,262.25”
[6]The Particulars of Claim state the following at paragraphs 10 and 11:
“10. In the premises, a competent court with the appropriate jurisdiction and authority as to the subject matter and parties has established the Defendant’s liability to the Claimant in the sum of US$2,633,262.25. 11. The Claimant’s claim against the Defendant having been determined, and the said judgment standing and remaining unsatisfied, the Claimant seeks judgment in the same sum (that is, expressed in United States dollars) in the Courts of England and Wales in order that it might be enforced within the jurisdiction.”
[7]The substance of the claim is denied by Ms Kang, but it is further denied that Premium may rely upon the judgment as they claim to in the pleadings. The basis for Ms Kang’s application is that the foreign judgment on which the claim is founded may not be relied upon by Premium as a matter of law because it may not be enforced in this jurisdiction.[8]Premium submit that this application should fail for both procedural and substantive reasons. They say that it is trite that CPR13.3(2) requires an application to set aside default judgment to be made promptly. They argue this has been interpreted as requiring an applicant to act “with all reasonable celerity in the circumstances” see Simon Brown LJ Regency Roles Ltd v Carnall [2000] EWCA Civ 379. Premium argue that default judgment having been entered on 1 November 2023, that an application made on 25 March 2025 some 16 months later cannot possibly be considered prompt, and the court should not accede to it. They rely upon the case of Nolan v Devonport [2006] EWHC 2025 (QB) for the proposition that the court should not interrupt what is enforcement of a judgment where a defendant seeks to frustrate enforcement: if they had had a meritorious defence the court may infer they would have sought to set aside judgment at once. There is no good reason for this court to exercise its residual discretion under CPR 13.3 in her favour, and Ms Kang has not suggested any.[9]A stay was imposed on the claim for an order for sale on 17 July 2025 which Premium request the court to lift.[10]Ms Kang for her part states that the papers in the claims both in Ohio and England were served by post on her Bristol property and nowhere else. She did not receive anything until January of 2025 when she arrived back in England. She has deposed that she was unaware of the default judgment in the High Court, or that Premium had obtained an interim and then a final charging order over the property in reliance upon that judgment, or that they had then issued a claim for possession and for sale. The Background The claim

The Background

[11]The claim that to which Ms Kang is a third-party, concerns the sale of allegedly counterfeit masks during Covid. The claim indicates that Premium say she represented the masks were authentic, providing an SGS Report and a certificate showing that she was an authorised 3M distributor, but they were not and she was not. Premium say they bought the masks for resale, they were not genuine, and Premium was sued. They allege a loss of some $2 million including by reason of damage to its business reputation.

Ms Kang’s residence here

[12]Ms Kang is described as a Chinese national doing business through a German company. She is personally domiciled in China but has spent time in various European cities.[13]In 2011 Ms Kang’s evidence is that she bought a property at 10a Southlands Way, Congresbury, Bristol, BS49 5BP (the “Property”). This was because she wanted her daughter to be born in the UK, which she duly was, in March 2012. At some time thereafter they returned to China. The Property was rented out between 2012 and 2019. She founded a company called ROSE Genomics SRL in Italy in 2018 and moved to Milan. Covid 19 lockdown was starting there so she came to the UK returning on 2nd March 2020. As the UK then also locked down, she returned to China on 4th December 2020. She refers to stamps in her passport which she proffers as corroboration, and which appear to align with the timings she gives. She says she did not come back to the UK until early 2025. Between December 2020 and January 2025, she did not leave China.[14]In a statement of 19 November 2024 in support of an application for an order for the sale of the Bristol property, Mr Dexiang Bao, a director of Premium, stated that on 20 March 2023 Premium had sent a letter to Ms Kang at this address, inviting her to pay sums owed to avoid further action. A copy is before the court and was attached to Mr Bao’s statement in support of the order for sale.[15]The letter, addressed to the Property from Premium’s solicitors, also threatened a claim in the High Court “to obtain a judgment enforceable in England and Wales”. It states that they are unaware whether she had any legal representation in respect of disputes and recommends seeking independent legal advice. It indicates that judgment was entered in default in the Ohio court on 15 March 2022 and that judgment separately was ordered for damages. The sums involved are given. It gives the background to the claim against Premium by 3M and that by a claim dated 14 January 2021, Premium sought an indemnity from her. It states that there was service upon her of the summons on 26 February 2021. The letter enclosed with it, Mr Bao says, a number of documents including a certificate of service dated 26 February 2021, and of 14 April 2021 and including the default judgment of 15 March 2022 and the Order for the payment of damages dated 22 April 2022.[16]The letter indicates that there are instructions to seek a freezing order, were she to seek to dissipate her assets. The solicitors say they are instructed to register a caution against the Property pending determination of the dispute.[17]Mr Bao’s statement also says the following “the Claimant did not believe that the Defendant resided at the Property But was unsure as to whether there could be Tenants renting the property from her.”[18]He then explains that Process Servers were instructed to undertake an enquiry search and site visit to see who, if anyone, was living there. The enquiry search had produced only links to Ms Kang and to a Ms Rui Kang, who was presumed to be a relative. The report was enclosed. The letter said: “When the site visit was made the property did not look lived in, access to the front door could only be made through overgrown weeds, and there was no answer when the Process Servers knocked at the door”.[19]The Process Server reported in correspondence that the postman no longer attended due to problems reaching the front door. Mr Bao said that a neighbour advised the Property had been vacant for four years. This statement in support of an order for sale of the Property, necessarily concentrated on the elements of ownership. It also however mentioned that to the best of their knowledge no one lived there. It said:
“… once issued the Claimant will still endeavour to serve the proceedings at the Property so that any possible occupiers are aware in any event. The Claimant has attempted to ascertain the Defendant’s current address but have been unable to do so as it is believed that she has returned to China. The address of the Property, being the Defendant’s last known address, will therefore be used for service. It is also the address for service stated in the office copy entries.”
[20]By “office copy entries”, the deponent was (presumably) referring to the fact that Ms Kang was listed as the sole proprietor of the Property from October 2011 to the present at HM Land Registry.[21]Mr Bao states that the Final Charging Order was also sent to Ms Kang at the Bristol address.

Service Of the Claim

[22]As indicated, the Process Server/enquiry agent acting on behalf of Premium indicated in correspondence dated 9 October 2024 that Ms Kang appeared connected to the Bristol address from October 2011 to the present and was actively linked there as of June 2024. She was the sole owner and a Ms Rui Kang born 1989 is noted to be linked to the Property.[23]Ms Kang swore a statement dated 25 March 2025. She herself says she did not set up a postal redirection for her UK address because she was unaware that the Royal Mail provided such a service. She points to part of the report made by the Process Server that records they spoke with a neighbour who confirmed the Property had not been lived in for four years and that during Covid they had gone to China; another person had stated she had not been present since 2020. Ms Kang denies the claim and denies there was any contract between herself and Premium and denied she submitted to the Ohio jurisdiction in any way.[24]Ms Kang said that it was only on 4th January 2025, that she returned to the Property for the first time and, as she put it, “found several documents whichhad been sent through the post” relating to the claim by Premium. She asserts that she very quickly instructed solicitors thereafter and once in funds, instructed them to make this application to set aside.[25]Ms Kang states she is not and never has been resident in Ohio or elsewhere in the USA. She has not been present in the USA since the claim was issued against her there - China has always been her main residence. It is her case she was physically in China since April 2020 returning to the UK only at the beginning of 2025. She is neither the claimant in the proceedings before the Ohio Court nor did she counterclaim in those proceedings. The Ohio judgment does not suggest that is inaccurate. She refers to her passport stamps and asserts she has not travelled to the USA since 2009.[26]She says she made no voluntary submission to the jurisdiction of the Ohio court, and she points to the Ohio judgment to which she said she had been “totally unresponsive – failing to appear, plead or defend against this action”. She deposes that the papers in both sets of proceedings – Ohio and England- were served only on the Bristol address, and she was unaware that had taken place. She took no part in those proceedings and she did not in those circumstances, fulfil the requirements for the recognition of the Ohio judgment in the courts of England and Wales. There is no evidence to counter her assertions in this regard.[27]The case for Premium is, as set out, that this is a manipulation by Ms Kang of the system. They record, by a second statement of Mr Baoof Premium that in December 2024 the Process Server had been advised by neighbours Ms Kang would be back to the Bristol property at the end of January 2025, and he says that they therefore waited until March 2025 for a response but received none. Accordingly, on 3 March 2025 Premium requested a disposal hearing on the Part 8 claim for sale of the Property. They heard from Ms Kang’s representatives on 10 March 2025 for the first time. They suggest that Ms Kang was on notice from 20 March 2023, when the pre-action protocol letter was sent, but that the first response was not until 25 March 2025 when Ms Kang’s applications to set aside KB-2023-002053, and to consolidate proceedings PT-2024-BRS-000147, were served, and then only in draft on Premium’s representatives.[28]Assuming for the purposes of this application that Ms Kang is accurate as to her presence within the jurisdiction, Premium submit it is highly relevant that she confirmed receiving the claim form dated November 2024 on her January 2025 return.[29]Premium’s case is expressed latterly in this second statement dated 16 April 2025 by means of a new analysis.[30]With respect to the argument from Ms Kang that as a matter of law the Ohio judgment is not enforceable in this jurisdiction, it is now said that Premium are not seeking to enforce the Ohio judgment under number KB– 2023 – 002053. This is said not to be a claim for this court to recognise or enforce the Ohio judgment, rather, it is a claim for judgment in this jurisdiction in respect of sums owed which are evidenced by the Ohio judgment. Mr Bao outlines this legal argument in his second statement of evidence dated 16 April 2025. The argument, repeated in argument before me, states this is the correct manner in which this court should approach their claim. The position that the Ohio judgment itself was not and could not be registered, as might be the case with judgments from other countries, is accepted on behalf of Premium.[31]The more recent argument on behalf of Premium goes that the Ohio judgment is referred to in the pleadings as evidence of the debt, but it is not the subject of the claim itself. The claim is for money owed. The amount of the issue fee indicates, it is argued, that this is the case: £10,000 was paid because the amount due exceeds £200,000. Recognising a foreign judgment and converting it to an English judgment would have attracted a fee of £646 only. The Ohio Judgment was referenced within the Particulars of Claim as evidence of the debt, but it was not the subject of the claim itself. The claim was for the money owed, it is said.

Interaction in 2025

[32]Ms Kang’s evidence in her statement to the court in support of her application to set aside states she returned to China on 4 December 2020 having come to the UK due to Covid 19 on 2 March 2020 from a commercial base in Italy. She had a company in Italy in 2018 so had moved to Milan. She returned to the UK on 2 March 2020 leaving in the December. She was in China until January 2025 and it was on 4 January 2025 that she discovered the documentation sent through the post relating to the claim brought by Premium. The papers were served only by post she says, at no other addresses nor by any other means. She deposes that she was unaware that any of the steps that had taken place since she’d been away from the UK - in the course of the proceedings both in Ohio and those in England.[33]She stated she “very quickly” instructed solicitors to represent her to make an application to set aside the default judgement and “once I was in the position to put the solicitors in funds for the court fees, I instructed them to proceed.” She said she believed she had acted promptly.[34]Mr Pitts was the partner in Ms Kang’s solicitors Clarke Willmott LLP with day-to-day conduct of the case on her behalf in England and is of assistance with regard to the chronology. He explained in a statement dated 5 November 2025 that Ms Kang contacted his firm, Clarke Willmott on 13 January 2025. On 19 January 2025 the materials posted to Ms Kang were provided to him electronically.[35]He notes that she did not include copies of the claim form or particulars of claim in the present proceedings. Likewise, he observed that Mr Bao’s witness statement did not include copies of them either, although a copy of the default judgement of 1 November 2023 was exhibited by Mr Bao.[36]After a further search, Ms Kang had re-sent the same papers (that is to say without any claim form or particulars of claim) as before. What she was able to find was a copy of the Part 8 Claim Form in respect of the order for sale of the Property. Ms Kang’s solicitor throughout sought to assist her with the time at which the claim form and particulars of claim would have been served. She again searched through the papers but could not find the claim form nor the particulars of claim. Mr Pitts, after several requests and her searching through the documentation that was sent, concluded that those documents were not present at her property when she returned in January 2025. He notes it was only on 10 March 2025 that Ms Kang was able to put the firm in funds for the work on the application. The same day an email was sent to Premium’s representatives asking for copies of the claim form and particulars of claim. They were sent on 11 March 2025 and on 25 March 2025 the applications were submitted.

Legal Framework

[37]The recognition of foreign judgements is the subject of rules to be found in Dicey, Morris & Collins, The Conflict of Laws, (16th Edn.) Vol.1. The fundamental requirement for recognition or enforcement of a foreign judgment in England is that the foreign court has jurisdiction according to the English rules of the conflict of laws.[38]To start at the beginning, Rule 45, provides as follows: A judgment of a court of a foreign country (hereinafter referred to as a foreign judgment) has no direct operation in England but may (1)be enforceable by claim or counterclaim at common law or under statute, or (2)be recognised as a defence to a claim or as conclusive of an issue in a claim.”[39]Rule 46 provides as follows:
“(1) Subject to the Exceptions hereinafter mentioned and to Rule 63 (international conventions), a foreign judgment in personam given by the court of a foreign country with jurisdiction to give that judgment in accordance with the principles set out in Rules 47 and 48, and which is not impeachable under any of Rules 52 to 55, may be enforced by a claim or counterclaim for the amount due under it if the judgment is (a) for a debt, or definite sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty); and (b) final and conclusive, but not otherwise.”
[40]The requirements that must be fulfilled therefore in order to enforce the Ohio judgment are: a) There must be a final and conclusive judgment of the court which pronounced it; b) It must have been given by a court regarded by English law as having jurisdiction to give that judgment; and c) Be a judgment for a fixed sum of money.[41]Whilst in this case conditions (a) and (c) are fulfilled, it is the case that there must also be jurisdiction over Ms Kang, and she submits it is entirely clear that this requirement cannot be fulfilled, and it is the English conflicts rules that apply to determine the question.[42]I take with gratitude the succinct summary by reference to caselaw from the skeleton argument of Mr Towers who appears for Ms Kang. There was no dispute as to its application.[43]It is a long-standing principle that a foreign judgment which does not meet these requirements is unenforceable; per the Earl of Selborne in Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670 at 683 – 684:
“In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the Courts of every nation except (when authorized by special local legislation) in the country of the forum by which it was pronounced.”
[44]Adams v Cape Industries Plc [1990] Ch 433 also makes it clear that physical presence is vital: “…First, in determining the jurisdiction of the foreign court in such cases, our court is directing its mind to the competence or otherwise of the foreign court “to summon the defendant before it and to decide such matters as it has decided”: (see Pemberton v. Hughes (1899) 1 Ch. at p. 790 per Lindley M.R.). Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the defendant in the country concerned at the time of suit…[45]As summarised by Green J in Swiss Life AG v Kraus(aka Moses Krausz) [2015] EWHC 2133 (QB), when dealing with Rule 47 under its previous title, Rule 43: “It follows that if the Default Judgment in issue is regarded as a judgment in personam within the ambit of Dicey Rule 43, then it will only be enforced in England at common law if the judgment debtor was, in summary, present in the foreign country when the proceedings were commenced, or submitted to its jurisdiction. Conclusion The judgment

Conclusion

[46]I am of the clear view that the judgement of the Ohio court is unenforceable in this jurisdiction. The claim form supported by the particulars of claim purport to enforce in this jurisdiction the judgment of the Ohio court. Under the applicable Conflict of Law rules, this cannot be done because Ms Kang was not subject to that court’s jurisdiction. This is plain from a reading of Dicey and Morris Rule 47 as set out above.[47]The summary of the effect of the Dicey and Morris principles in case law is unarguably correct, and it puts an end in my judgement to any attempt to give effect to the Ohio judgment as such in this jurisdiction. However, by the recent argument of Premium, these matters are, it would appear not disputed in the way that they were. Rather a new argument, prefigured in Mr Bao’s second statement was made.[48]It was recently said, as set out, that the claim is in fact not on the judgment itself, rather it is a free-standing claim for the debt itself, and the Ohio judgment is just evidence upon which they rely, and to which there is no answer. The court should therefore not set aside the judgment nor give reverse summary judgment, but rather recognise the claim is made using the judgment in Ohio only as evidence.[49]The valiant attempt by Mr Kirk to re-characterise the claim as in fact an action on the debt itself with a reference to the Ohio judgement as evidence must fail. Plainly that is not what this claim was or is. It seems to me likely that the requirements of the rules of the conflict of laws were just overlooked.[50]These circumstances, which render the judgment a nullity in English law are stark. I accept the submission on behalf of Ms Kang that it would be wrong to perpetuate what is in fact a judgment of no effect in this jurisdiction by allowing this judgment in default to stand.[51]In the course of argument, the position was canvassed as to whether or not, were I to decide that the judgment could not be enforced as envisaged, amendment of the claimant’s claim might be appropriate. I have considered whether or not the claim can be rescued in another form which, to an extent anticipating this part of my decision, Mr Kirk submitted.[52]It seems to me as a matter of logic, this being in particular a default judgement, it is a nullity and therefore can have no effect: it does not stand as res judicata; it cannot be enforced in and of itself, and it does not, being a judgment not based upon evidence, in any event, stand as evidence of anything. That is a logical consequence of its character following the application of the conflict rules. Amendment cannot rescue the claim.

Delay

[53]It was also suggested by the claimant that the defendant needed in any event to show she had acted consistently with a favourable exercise of discretion under CPR 13.3 and she could not, because of the delay.[54]Mr Kirk for Premium reminds the court that whilst of course the court must act in accordance with the overriding objective, the one obligatory matter to which regard must be had under CPR 13.3 is promptness. Lack of promptness may, as is reflected in the notes to the White Book and, as Mr Kirk submits, in Standard Bank plc v Agrinvest International Inc [2010] EWCA Civ 1400, defeat even a meritorious claim.[55]By CPR 13.3(2), in considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.[56]Thus the defendant must show that they have a real prospect of successfully defending the claim or that there is some other good reason why the judgment should be set aside or varied and the court must have regard to whether the person seeking to set aside the judgment made an application to do so promptly. The actual delay and the reasons for it are examined (Evans v Bartlam [1937] A.C. 473). It is recognised that in spite of the possibility that the defendant may well succeed at trial, a late application may not succeed, (see for example Standard BankPlc v Agrinvest International Inc [2010] EWCA Civ 1400; [2011] C.P. Rep. 15; [2010] 2 C.L.C. 886).[57]By the same token, in appropriate circumstances the court has determined that judgment may be set aside even in the face of what is characterised as excessive delay, (see for example Barons Bridging Finance Plc v Nnadiekwe [2012] EWHC 2817 (Comm). These circumstances may include that given the importance of the issue and the facts, justice required that the judgment be set aside.[58]The court must also have regard to the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906. The seriousness and the significance of the breach, the reasons for the failure or default, all of the circumstances of the case need to be considered.[59]Mr Towers points also to CPR 6.9. Premium in the statement sworn in support of the charging order, has admitted that they knew Ms Kang did not live at the property at which the materials were served. In such circumstances he submits they ought to have made an application for alternative service. It is insufficient to say that this was Ms Kang’s last known address in England because they have reason to believe she’s not there in the circumstances of this case, she has apparently entirely ignored the claim for millions of dollars against her: there is good reason to believe she has not been properly served. He also drew attention to Ms Kang’s lack of claim form or particulars of claim which he says suggests that they were not in truth served on the Bristol address as alleged, she having looked on a number of occasions and found other documentation but not those. These matters were of relevance in the consideration.[60]It was submitted on behalf of Premium however, that it was wholly unlikely that Ms Kang had not in fact seen the documentation, and the court was asked to deduce that she must have received all manner of documentation at the house for example council tax and other civil obligation materials therefore the court should not accept what she said about first coming upon the materials in January 2025. By the same token Mr Kirk draws attention to the absence of evidence to support the delay until 10 March 2025 when she claims to have been waiting for funds in order to back the application to set aside. No evidence is given as to why there was the delay which is, he submits in and of itself good evidence of a lack of promptness. He reminds the court that even a few days can in certain circumstances be unprompt. However, his main submission is this was a period of some 16 months delay from November 2023 to March 2025 - a proper analysis would acknowledge that there was 1 ½ years delay – not a mere matter of days in early 2025. Judgment had been entered on 1 November 2023 which was a period of some 16 months before the application to set aside was made following numerous other steps including the making of a charging order. This was submitted to be at the top end of the range of seriousness from a Denton perspective and the explanations given were insufficient.[61]Mr Towers referring to the multiple judgments which have allegedly just been ignored submitted this is far from usual behaviour and certainly not where a claim worth about £2 ½ million was at stake. Accordingly, this was a case with highly unusual facts. This was a person who was not served at an address where she was living at the time, she was so served at a time when she was out of the country, and as a person not familiar with English law. She only learnt of the accumulation of these matters on a visit to the country after she had returned following Covid, from China where she lived. There was no response at all until, as her passport shows, she returned in January 2025. She had it is suggested no knowledge at all of these proceedings until after at the service of the part 8 claim. There is no actual evidence to suggest that the proceedings or any part of them came to Ms Kang’s attention until January 2025 on her return to the Bristol property.[62]It is noteworthy in Premium’s authorities the case of Agrinvest above, was a case where the application to set aside was made a little over a year after judgment had been entered. A part of the issue had been obtaining sufficient funds it was said. But the court there said the important questions were when did the defendant to learn that the claimant had entered judgment against it and how quickly did it take steps to have it set aside. In that case there was evidence that the judgment was sent out in copy to the relevant person, and its receipt was acknowledged two days later. It was said to be clear that the relevant person in that case was quite capable of taking prompt and effective steps to protect the company’s position with or without any legal representation, indeed responded promptly in a manner that was later reflected in the argument before the court. The court emphasised that much depends on the particular circumstances of an individual case.[63]Particular emphasis was placed by Mr Kirk upon the case of Fathi v Mohamed [2021] EWHC 2231 (Comm). That was the case at which the applicant to set aside the judgment only appeared before the court, but he had explained that the reason no acknowledgement of service was filed until a later date was because when the proceedings were served by first class prepaid post to his last known address in England, the applicant was living in Turkey and did not receive them. The judge said there that was an inadequate explanation in the circumstances of that case because in such circumstances a person vacating an address in England, particularly a business address “ought realistically to be making arrangements to ensure that his/her or it all their post is collected and forwarded appropriately or opened by someone on behalf of that person so that it can be brought to the attention of the individual concerned.”[64]However, in my view, the circumstances were significantly different in the case of Fathi. The judge’s observation was made in the context there of a defendant who had admitted that certain sums had been paid into his account by the claimant, although he disputed the claim against him, saying he had no contractual relations with the claimant, others had incurred the debt, but the claimant was chasing him for it. Other defendants in the case had been doing business with him, one of whom had paid the money is in fact into his bank account. He had at all times lived and worked in the United Kingdom and was served at his address in the United Kingdom.[65]Further in that case the judge criticised delay in the service of the application, which service did not take place until some eight months after the application had been made. The applicant there said only that he believed his solicitors had dealt with it appropriately – the judge noted there was no reference to a solicitor being involved in the process at all. It was not a matter that was dealt with in the evidence. The application was not progressed, and no reasons were given for that delay. Further, in that case, where a business address was involved, it was inadequate to say he had just moved abroad.[66]It is suggested that Ms Kang was by the same token under an obligation to notify the Post Office that she would not be living at this address in Bristol but rather elsewhere, and arranged to have her post forwarded. However, in the present case, it is not suggested that Ms Kang carried on business in England, nor that the Bristol address was a business address or one that had been notified to any party. Absent evidence that Ms Kang used the Property as her business address or her correspondence address generally for international business matters, I am not persuaded that the Fathi case is of any assistance on that particular issue. Each case is, as each case invariably states, very fact dependent.[67]It is notable that it became apparent to the Process Server from his investigations in early October 2024 that the house appeared neglected, and not lived in for four years, the owner Ms Kang having departed for China had never returned. It is accepted that Ms Kang was not living there at the time, and there was evidence she had not been living there for a number of years. Nonetheless, as the claimant submitted, there was a record at companies’ house that had this address listed and that she was the director of two companies which it was submitted were both subject to the Ohio judgment. This meant there were perhaps closer connections to England than appeared at first. All in all, submitted the claimant at this sequence of events showed that even taking time to run from January 2025, the claimant had not been prompt, she had not funded the application promptly and had taken extra time once she had arrived back.[68]In summary, in opposition, Mr Towers accepted that the principles applicable in this consideration would incorporate the Denton principles, but it was inappropriate to speak in terms of serious default where the claim form itself was never received. In any event, good reason has been shown here for the defaults: Ms Kang was not living at the address, nor had she been for several years - the Property appears to have been effectively abandoned by the defendant over the years between 2020 and early 2025. The same factors would apply under the general CPR 13.3 consideration as under Denton.[69]There are a number of gaps in the evidence on both sides in my judgement. The detailed situation is impossible to judge with any accuracy since in my view such detail as exists is consistent both with an innocent explanation for the delay but also possibly, an intention to avoid the consequences of unfortunate commercial activity. I am unwilling absent any evidence to this effect, to infer a nefarious intent in the failure to receive documentation at the Bristol address – it is not clear that the Bristol address was in any event the correct address for service under CPR 6.6. It is not explained in any detail by the claimant how the property was determined to be appropriate for service other than that connection had been found, they knew of the address, and did not know of another.

Conclusions

[70]I have come to the conclusion that the application was not prompt, even if one takes the early January date as being the time when the matter was initially brought to Ms Kang’s attention. The extreme lapse of time since the start of proceedings and the perceived need to set aside required very urgent action indeed, and that was not what happened. However, there were in my judgement some cogent reasons for that portion of that delay, as canvassed by Mr Towers in submission.[71]I am not prepared to infer that Ms Kang had been dishonest, in particular in light of her solicitor’s attempts to elicit from her whether she had received the particulars of claim. This evidence does not suggest a calculated and a less than candid approach. A return to this jurisdiction after years of absence and apparently no knowledge of the Ohio action, are extraordinary events which mean the lack of promptness is to an extent explicable. Accordingly, applying Denton criteria, although a serious breach, in the circumstances of the case the reasons for failure were understandable. In an ordinary case, it would be wrong to deny the applicant her remedy.[72]However, as I have indicated, this case is not ordinary, it raises other issues and there must be a set aside for other reasons in any event.[73]I accept the submission of Mr Towers that it is a matter of highest significance that the Ohio judgment must be treated as a nullity. The order of the court made in this jurisdiction purports to give effect to a judgment which, properly characterised, is of no effect. It cannot in my judgement be in furtherance of the overriding objective to give effect to something which is, as a matter of law and logic, of no effect.[74]As to the new alternative argument, namely that this was not a claim to enforce a foreign judgement, that in my view just does not run. It is impossible to characterise the claim as other than an attempt to enforce the judgment. This is so both as a matter of the language of the Claim Form, and very clearly, in light of the wording of the Particulars of Claim. It is impossible as I have already said to apply the conflict rules with any conclusion other than that the Ohio court did not have jurisdiction.[75]I declined to craft an amendment or give directions that the claim be amended. This is in my judgement not a possibility: what the claimant must do if it wishes to continue, is to seek to litigate in this jurisdiction on the cause of action, not seek to enforce the judgement.[76]Trying to enforce the unenforceable is an abuse of process, and the argument now raised on behalf of Premium is flawed. Mr Towers submitted it was significant that the Ohio judgment had no factual foundation: it was not based on findings of fact but was entered in default. It was certainly final, but no facts had been pleaded beyond the fact of the judgment itself. It is inescapable, he submitted, and I accept, that this was an action on the Ohio judgment itself which under the conflict rules was inapt. The Court will not enforce it, delay or no delay.[77]The application must be allowed. There should be judgment for Ms Kang on her application to set aside /reverse summary judgment.