Default and Summary Judgment

Question 1

What is default judgment?

Answer 1

A judgment entered without trial in default of:

an acknowledgement of service
a defence, or any document intended to be a defence

Question 2

Which types of claims are not open to default judgment?

Answer 2

Part 8 claims
Claims for the delivery of goods subject to an agreement regulated by the consumer credit act 1974
Where a PD says so

Question 3

When can a claimant get default judgment for a failure to file an acknowledgement of service?

Answer 3

If on the date of the judgment D has not filed an acknowledgement of service, or any defence to the claim (or part of the claim) and the time for doing so has passed

Question 4

When can a claimant get default judgment for a failure to file a defence?

Answer 4

Where an acknowledgment if service has been filed, but a defence (or document intending to be the defence) has not been
Or, where a counterclaim is entered under r.20.4, and a defence has not be filed

And in both cases the time for entering the defence has passed

Question 5

When can the Claimant not get default judgment even if the other criteria are satisfied?

Answer 5

If D has a pending application for strike out of the claim
If D has a pending application for summary judgment
If D has satisfied the claim
If D has has admitted liability, has undertaken to pay but is requesting more time to do so
There is a pending application for the hearing to deal with sensitive information under s.6 Justice and Security Act

Question 6

Which three types of remedy can a default judgment be given without the use of part 23 application?

Answer 6

Where the claim is for a

specified amount of money
An amount of money to be decided by the court
delivery of goods where there is an alternative of paying their value

Question 7

What must be provided on the application notice or practice form when seeking summary judgment?

Answer 7

D’s date of birth

Question 8

Where the claim is for money (and is filed on the relevant practice form), what can the Claimant specify?

Answer 8

The date on which the debt should be satisfied
Or the payment schedule for satisfying the debt

Question 9

Can interest be claimed in applications for default judgment?

Answer 9

Yes - but only if it was pleaded in the claim form/particulars & the application includes a calculation of it up to date requesting judgment

Question 10

Can default judgment be applied for where a claim is against more than one party?

Answer 10

Yes - default judgment can be entered against one of two or more D’s.

If the claim can reasonably be severed from the others, default judgment can be entered and the other claims continue.
If the claim cannot be severed, then the application is dealt with at the same time as it deals with the other matters

NOTE: can’t enforce a judgment for delivery of goods or possession of land unless judgment is entered against all defendants (i.e. if the goods are joint owned, you need to win against both)

Question 11

What special circumstances mean that an application for default judgment must be made by part 23?

Answer 11

It it is a claim against a protected party or child
it is a tort by one spouse/civil partner against another

Question 12

When MUST the court set aside a default judgment?

Answer 12

When it was wrongly entered as it did not comply with the conditions in part 12

The claim was satisfied by the time judgment was entered

Question 13

When MAY the court set aside default judgment?

Answer 13

If D has a real prospect of successfully defending the claim
or
there is some other good reason why either the judgment should be set aside or d should be allowed to defend the claim

Question 14

What specifically should the court have regard to when considering whether to set aside a default judgment?

Answer 14

whether the application to set aside was made promptly

Question 15

Is it enough to show that you have an arguable defence to set aside default judgment?

Answer 15

No - must be a real prospect of success (same test as summary)

Question 16

Are the denton criteria relevant to an application to set aside?

Answer 16

Yes - first specifics of r13.3 are considered and then the denton test

Question 17

What must be included in an application for setting aside a default judgment under part 13?

Answer 17

Evidence

Question 18

What is summary judgment?

Answer 18

Judgment without a trial

Question 19

In which proceedings is summary judgment available?

Answer 19

Against a claimant in any proceedings

Against a defendant in any proceedings, except those for possession of residential premises.

Question 20

What is the test for summary judgment ?

Answer 20

Court may give summary judgment where the claim:

has no real prospect of success
there is no other compelling reason why it be disposed of at trial

Question 21

How does the court decide if a claim has no real prospect of success?

Answer 21

It must have a realistic as opposed to fanciful prospect of success
A realistic claim is one that carries a degree of conviction - one that is more than merely arguable

Question 22

Can the court give summary judgment on part of a claim - i.e. on one issue?

Answer 22

Yes

Question 23

what approach should the court take to evidence on an application for summary judgment?

Answer 23

Should not conduct a minitrial
Should have regard to the evidence it has before it and that which may be available at trial - should ask whether there is a reasonable prospect that disclosure will materially alter the evidence available at trial

Question 24

When can a claimant apply for summary judgment be applied for?

Answer 24

After D has filed an acknowledgement of service or defence

unless court gives permission or PD says otherwise

Question 25

does the defendant need to file a defence if summary judgement is applied for before they have?

Answer 25

No

Question 26

How much notice should the respondent be given for a hearing for summary judgment?

Answer 26

14 days

Question 27

What must an application notice for summary judgment include?

Answer 27

It must : state it is an app for summary judgment It must set out any point or law or doc relied upon set out or attach any evidence relied on state the opposing party has no real prospect of success state they know of no compelling reason why it should go to trial make clear the respondent can rely on evidence opposing the application

Question 28

When must evidence be served?

Answer 28

7 days before the hearing for the respondent 3 days before the hearing for applicants reply evidence

Question 29

when disposing of a summary judgment application, what can the court do?

Answer 29

give directions about the filing of a defence give further directions about case management Make a conditional order Can also make an order about costs

Question 30

What order will the court make if a claimant is successful but it appears that the respondent may have a plausible counterclaim (not a set off) which is of the same or greater value?

Answer 30

An order for summary judgment with a stay of enforcement until after the trail for the counterclaim

Question 31

What order will the court make if the defendant successfully convinces the court that the claimant's case is unwinable?

Answer 31

An order striking out the claim

Question 32

When will a conditional order be made?

Answer 32

When it appears to the court that it is possible that the claim or defence will succeed, but is unlikely to do so. conditions are often to pay a sum of money into the court

Question 33

Can a hearing for summary judgment continue without a party there?

Answer 33

Yes