Default Judgment

Question 1

1. When can default judgment be applied for?
2. What part of CPR governs default judgment?
3. What types of proceedings are excluded from default judgments?

Answer 1

1. If D fails to file a defence or acknowledgment of service
2. Part 12
3. Part 8 proceedings, CCA claims for Return of goofs and mortgage possession proceedings

Question 2

What CPR part governs setting aside default Judgments?

Answer 2

13

Question 3

When MUST a judgment be set aside

Answer 3

If grounds for making default judgment were not satisfied

CPR 13.2

Question 4

When MAY a court set aside DJ?

In considering whether to set aside/vary what is a relevant consideration?

Answer 4

CPR 13.3
If:
D has a real prospect of successfully defending the claim; or
It appears to the court that there is some other good reason why - judgement should be set aside/varies or the D should be allowed to defend the claim

Mattter to which the court must have regard include whether the person seeking to set aside the DJ made an application to do so promptly

Question 5

What else must the court consider when considering whether to set aside/vary a DJ?

Answer 5

Denton Test

Court must first have regard to the test set out in CPR 13.3 itself and then (if the applicant satisfied those requirements) the Denton Test

Question 6

NON-ATTENDANCE AT TRIAL

1. CPR PROVISION?
2. Court can proceed in their absence and enter judgment, what can party who fails to attend then do?
3. Such an application must be ____ by ______

Answer 6

1. CPR 39.3
2. Can apply to set aside the order/judgment
3. Supported by evidence

Question 7

NON-ATTENDANCE AT TRIAL
4. What conditions must be set for the court to set aside judgment/order

5. Cases turn on …

Answer 7

4. = (a) Applicant acted promptly, (b) they had good reason for not attending trial; AND (c) has a reasonable prospect of success at trial
5. Individual facts

Tests in respect of promptness and prospect of success same as applied in default judgment and summary judgment
Good reasons = subjective and for the discretion of the Court

Question 8

NON-ATTENDANCE AT HEARING WHEN PO MADE

1. Court should apply
2. Court having discretionary power to suspend is not a reason per se to set aside original order. It is for the applicant to show, after satisfying ____ that there is sufficent evidence to invoke ______
3. What has been held is sufficent to satisfy final part of test

Answer 8

1. CPR 39.3 test
2. 39.3(a)&(b) / S.36 discretion
3. Possibility of PO being suspende is sufficient to amount to a ‘reasonable prospect of success at trial’

Question 9

If the judgment is set aside on discretionary grounds what is the Costs position ?

CPR …

Answer 9

Respondent is still entitled to their costs despite applicant ‘being successful’

Because … the judgment was regularly entered by the respondent and, had the applicant responded to the claim within the relevant time period, there would have been no need for the application to be made

CPR 70.6 - comm-

Question 10

What can be submitted in mitigation if court decides to set aside DJ?

Answer 10

Request set-aside be conditional on a defence being filed within 14 days to avoid further prejudice to the client