Default and Summary Judgment (Syllabus 12)

Question 1

What is the meaning of default judgment?

Answer 1

judgment without trial where a defendant-

(a) has failed to file an acknowledgment of service; or
(b) has failed to file a defence

Question 2

In what claims can default judgment not be obtained?

Answer 2

(1) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974
(2) where he uses the Part 8 procedure
(3) in any other case where a PD provides that the claimant may not obtain default judgment.

Question 3

When can the claimant obtain judgment in default of an acknowledgment of service?

Answer 3

if at the date on which judgment is entered the defendant has not filed an acknowledgment of service, or a defence and the time for doing so has expired

Question 4

When can the claimant obtain judgment in default of defence?

Answer 4

where an acknowledgment of service has been filed but at the date on which judgment is entered a defence has not been file.

Question 5

When can the claimant not obtain default judgment?

Answer 5

the defendant has applied to have the claimant’s statement of case struck out under rule 3.4 or for summary judgment under Part 24. In either case, that application has not been disposed of.

Question 6

What procedure must be followed to obtain default judgment?

Answer 6

the claimant should file a request in the relevant practice form where the claim is for money.

if the claim is for any other remedy, the claimant must make an application.

Question 7

What is the nature of the judgment when the default judgment is obtained by filing a request?

Answer 7

(1) where the claim is for a specified amount of money the judgment will be for the amount of money to be paid.
(2) where the claim is for an unspecified amount of money the default judgment will be for an amount to be decided by the court
(3) where the claim is for delivering of goods the judgment will be requiring the defendant to deliver the goods or pay the value of the goods as decided by the court and pay costs.

Question 8

When will a default judgment on a claim for a specified amount of money include the amount of interest claimed to the date of judgment?

Answer 8

If-

(1) the PoC include the details required by CPR r.16.4
(2) where interest is claimed under s.35A Senior Courts or s.69 County Courts Act 1984.
(3) the claimant’s request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated.

Question 9

Can a claimant obtain default judgment against one of two or more defendants? What happens with regard to the other defendants?

Answer 9

Yes, the claimant proceeds with his claim against the other defendants.

Question 10

Can a claimant enforce against one of two or more defendants any judgment obtained for possession of land or for delivery of goods?

Answer 10

No, not unless

(1) he has obtained judgment for possession or delivery against all defendants to the claim; or
(2) the court gives permission

Question 11

What CPR does the claimant have to make an application in accordance with if the claim is against a child or protected party or in tort by one spouse or civil partner against the other?

Answer 11

the claimant has to make an application under CPR 23.

Question 12

What are the types of claim that require an application for default judgment?

Answer 12

(1) against children nd protected parties
(2) for costs only
(3) by one spouse or civil partner against another on a claim in tort
(4) for delivery of goods where the defendant will not be allowed the alternative of paying their value; and
(5) against persons who have immunity from civil jurisdiction

Question 13

What CPR is used to set aside or vary a default judgment?

Answer 13

CPR Part 13

Question 14

When MUST the court set aside a default judgment?

Answer 14

where it was wrongly entered because-

(1) acknowledgment of service or defence were served in time; or
(2) the whole the claim was satisfied before judgment was entered

Question 15

When MAY the court set aside or vary a default judgment?

Answer 15

If-
(1) the defendant has a real prospect of successfully defending the claim, or
(2) it appears to the court that there is some other good reason why-
(a) the judgment should be set aside or varied; or
(b) the defendant should be allowed to defend the claim.
The court must also consider whether the application was made promptly.

Question 16

What is the difference between CPR r.13.2 and 13.3?

Answer 16

In rule 13.3 the court has a discretion to set aside or vary the default judgment, in 13.2 the court must set aside or vary the judgment.

Question 17

What is meant by a real prospect of successfully defending the claim for an application to set aside/vary a default judgment?

Answer 17

This is the same test as for summary judgment

Question 18

Is default judgment a bar to joinder?

Answer 18

No

Question 19

What is a default judgment deemed to be?

Answer 19

a sanction

Question 20

What must be considered when requesting the court set aside a default judgment?

Answer 20

the Denton principles

Question 21

What is the procedure for an application to set aside or vary a default judgement?

Answer 21

where the claim is for a specified amount of money, the judgment was obtained in a court which is not the defendants home court and the defendant is an individual, the court officer will send an application to set aside to the defendant’s home court.

Question 22

What is the scope of CPR Part 24?

Answer 22

it sets out the procedure by which the court can decide a claim or a particular issue without a triakl

Question 23

What are the grounds for summary judgment?

Answer 23

(1) the claimant has no real prospect of succeeding on the claim or issue; or the defendant has no real prospect of successfully defending the claim; and
(2) there is no other compelling reason why the case or issue should be disposed of at trial

Question 24

What case sets out the principles of no real prospect of success?

Answer 24

AC Ward and Sons

Question 25

What is the meaning of no real prospect of success?

Answer 25

must be realistic as opposed to fanciful, more than merely arguable.

Question 26

What does it mean for there to be no other compelling reason for a trial

Answer 26

this is in cases where the claim does not seem straightforward. In AC Ward the court held that as they had all the evidence they needed to decide the issues, there was no other compelling reason for a trial.

Question 27

Who bears the burden of proof of showing that there is no real prospect of success?

Answer 27

it rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success

Question 28

How can a claimant be prevented from obtaining summary judgment?

Answer 28

If the defendant can show that he intends to raise a set off or counterclaim which raises a triable issue

Question 29

What happens if a defendant tries to make a set off on dishonoured bill or cheque?

Answer 29

only in exceptional circumstances will a defendant be allowed to make a set off for damages

Question 30

For what types of proceedings is summary judgment available?

Answer 30

against a claimant- any type of proceedings
against a defendant - in all proceedings except, proceedings for possession of residential premises against a mortgagor or a tenant. Or, proceedings for an admiralty claim in rem.

Question 31

What is the procedure for obtaining summary judgment?

Answer 31

(1) a claimant can not apply for summary judgment until the defendant against whom the application is made has filed an AoS or a defence. Unless, the court gives permission or a PD provides otherwise.
(2) if a claimant applies for summary judgment against a defendant before they have filed a defence, that defendant does not need to file a defence before the hearing.

Question 32

Where a summary judgment hearing is fixed, what must the respondent be given notice of?

Answer 32

at least 14 days notice of the date fixed for the hearing and the issues which it proposed that the court will decide at the hearing.

Question 33

What must the respondent do if they wish to rely on evidence for a summary judgment hearing?

Answer 33

they must file the written evidence and serve copies on every other party to the application at least 7 days before the hearing

Question 34

When does the respondent have to file and serve any evidence they wish to rely on at the summary judgment hearing?

Answer 34

at least 7 days before the hearing

Question 35

When does the applicant have to file and serve the evidence he wishes to rely on for the summary judgment hearing?

Answer 35

at least 3 days before the hearing.

Question 36

What powers does the court have when it comes to determine a summary judgment?

Answer 36

it may give directions as to the filing and service fo a defence and give further directions as to the management of the case.

Question 37

What order will be made if it appears to the court that it is possible that the claim or issue may succeed but it is improbable that it will do?

Answer 37

a conditional order

Question 38

What is the definition of a conditional order?

Answer 38

an order which requires a party to pay a sum of money into court or to take a specified step in relation to his claim or defence and which provides that the party’s claim will be dismissed or his statement of case struck out if he does not comply

Question 39

What is usually the purpose of the court ordering a conditional order against a defendant?

Answer 39

to provide security in respect of a particularly weak defence

Question 40

What are the 5 principles that should be applied when considering whether a conditional order for payment should be made?

Answer 40

(1) in a case where the defendant has a real prospect of successfully defending the claim, the court must not impose a condition requiring payment into the court
(2) the burden is on the defendant to establish on the balance of probabilities the it would be unable to comply with a condition requiring payment into court or the provision of equivalent security.
(3) to discharge the burden, a defendant must show that it does not have the necessary funds and that no such funds would be available to it
(4) it is not incumbent on a defendant to adduce evidence about the resources available to it.
(5) the court’s power to make a conditional order is not limited to a case where it is improbable that the defence will succeed.

Question 41

What can an application for summary judgment be based on?

Answer 41

a point of law, the evidence which can reasonably be expected to be available at trial or the lack of it, or a combination of these

Question 42

Who will a hearing of a summary judgment usually take place in front of?

Answer 42

a Master or District judge

Question 43

Can a respondent do anything in relation to an order for summary judgment if they do not appear at the hearing of the application?

Answer 43

Yes they can apply for the order to be set aside or varied.