Default Judgement, Summary Judgement and Strike out Flashcards
What is a default judgement, how does it arise?
-Judgement without a trial, D has failed to file an AOS or has failed to file a defence.
Meaning of DJ (CPR 12.1)
But if the D files a a defence later, but before the C applies for DJ, then the C cant get DJ
If D has not filed AOS/Defence but has has made application for SJm can the claimant obtain DJ
CPR 12.3(3)(a)
No the C is prevented from obtaining a DJ where a D has applied for:
1. Summary judgement or
2. Have applied to struck out C SOC
If D has made such an application, it will effectively stay the claim pending the disposal of the SJ
The C also cant obtain DJ where:
3. IF the D has satisfied the whole claim
4. The D has filed preserved on the C an admission with a req for time to pay
What circumstance the court “must” set aside a judgement entered in default?
CPR 13.2 Court must set aside a DJ wrongly entered because:
(a) it was entered before the defendant’s time deadline had expired for filing an acknowledgement of service and/ or defence; or
(b) the claim was paid in full before the judgment was entered; or
(c) [as mentioned earlier] the defendant has already applied for summary judgment/strikeout of the claim; or
(d) [as mentioned earlier] the defendant has filed an admission requesting time to pay.
A default judgment must be set aside irrespective of the defendant’s lack of prospects of success, if any of the above apply.
What circumstance the court “may” set aside a judgement entered in Default?
the court power to set aside (may)
1. The D has a real prospect of success defending the claim or
2. It appears to the court that there is some other good reason why
a) The judgement shld be set aside/varied or
b) the D shld be allowed to D the Claim
Not enough if D has ARGUABLE DEFENCE, THE D MUST SHOW “REAL PROSPECT OF SUCCESS”. Same test for summary judgment application
CPR 13.3
-Real prospect of success or some other good reason and that the application is made promptly
CPR 3.9/Denton
-Breach serious and sig, Reason for breach, circumstance of the case dealing with the case efficiently and at prop cost and enforcing compliance with rules/.
Court power to set aside a judgement entered in default (CPR 13.3(1), what other things court take into account when setting it aside?
Court will take into account injustice caused to the C as a result of the D application. Therefore essential D makes the application to set aside judgement as soon as he becomes aware of DJ ( The person seeking to set aside the judgement must make the application promptly. (CPR 13.3(2)
In application to set aside a DJ what are the possible order the could the court make?
The court may:
a) Set aside the DJ- A direction be given that D file his defense with the court and serve a copy to the C
b) Dismiss/Refuse the application
C) The court could make a conditional order (CPR 3.1(3) the court may attach conditions when it makes an order (available in relation to summary judgement as well)
What is a Summary Judgement, what is the Test
CPR 24.3- Summary Judgment
Procedure that enable C or D to obtain judgment at early stage without the time and exp involved in proceeding to full trial.
The court may give summary judgement if:
a) consider that there C has no real prospect of success/D has no real prospect of D the Claim
b) there is no other compelling reason why the case or issue shld be disposed at trial
The application may be based upon:
a) law
b) evidence that reasonably expected to be available at trial
How does the court determine there is no real prospect of success for SJ
The court must be shown that there must be “real prospect” not fanciful,.
The R is not req to show that the case will prob succeed at trial.
Disposal of an issue under CPR 24, shld not involve the COURT TO CONDUCT A MINI TRIAL.
Second limb of test “no other compelling reason”.
ex: Witness unavailability, highly complicated case or judgment shld only be given aft full inv of facts at trial, C has acted harshly or unconscionably
THE BURDEN OF PROOF LIES ON THE APPLICANT THAT
1) THERE IS NO REAL PROSPECT OF SUCCESS
AND
2) THERE IS NO REASON CASE SHLD PROCEED TO TRIAL
But if the applicant raises credible evidence in support of their application then the R has evidential burden to prove some real prospect of success or some other reason for a trial.
The standard of proof is not high
When can the C apply for SJ
The C “may” not apply for SJ until the D has filed AOS or Defence, unless the court gives permission, or PD provides otherwise (CPR 24.4(1)
Why Delay?, if D don’t file AOS then the C can proceed straight to entering DJ
What order can court make on application for SJ
a) judgement on the claim
b) Strike out or dismissal of the claim
c) dismissal of the application
d) conditional order
What happen if the C serves the (CF and POC) and its deemed served but no reply from D ( Rmbr that it has to be 14 days from deemed service of the POC)
The C can enter Judgment in Default (JID) of the lack of AOS/Defence as time for AOS/File defence has lapsed
IF the C is seeking for a specified money they don’t need to make an application under Part 23, they can simply file a request in the relevant practice form (CPR 12.(4)(1)(a)
TAKE NOTE OF THIS
ALSO THE FACT THAT:
-> NOTICE OF APPLICATION IN PART 23
if THE D states they never recieved proceedings, what application Can the C make and what test court apply?
It dont matter that the D says no receive CF, as its deemed served
The D then instead need to make application to set aside the judgment. The application would be based upon the discretionary ground to set aside the judgement (CPR 13.3), since the judgment obtained was a regular one
The D must show:
1)Real prospect of success
2) compelling reason why judgment shld be set aside
Must be shown they acted promptly (CPR 13.3(2)
The D also need to apply for relief from Sactions (CPR 3.9). This is because refusal to set aside DJ mean implied sanction on the D
Where the C makes a fanciful claim what can the D do?
The D can make a strike out application (CPR 3.4(2)(a). The SOC discloses no reasonable ground for bringing or defending the claim ( no legal cause of action)
Scenario: You have obtained a strike out order, and ask the D to pay cost, but instead of pay he brings proceedings on same facts as the C bring to D. What can the C do?
This is clear abuse of court proceess, the best course of action is to make application to stay the claim until the costs of the first claim have been paid. ( The court may stay the claim based on the circumstance until the cost of the first claim have been paid.)
What are the other things the C can request for when the person does this?
A CIVIL RESTRAINT ORDER (an order that req them to obtain permission of HC judge to begin or cont to make any application in proceedings covered by the order)
