Default judgment

Question 1

What is default judgment?

CPR 12.1

Answer 1

Default judgment is judgment without trial where D has failed to file a defence or acknowledge

Question 2

When can the Claimant not obtain default judgment?

Answer 2

A claimant may not obtained default judgment if

a) C used the Part 8 procedure

b) Claim is for delivery of goods subject to the Consumer Credit Act 1974.

c) in any other case where a rule or practice direction says that the claimant may not obtain default judgment.

Question 3

What are the conditions needed to be satisfied to obtain default judgment of an a.o.s?

Answer 3

(a) the defendant has not filed an acknowledgment of service or a defence to the claim

(b) the relevant time for doing so has expired.

Question 4

What are the conditions needed to be satisfied to obtain default judgment of a defence?

Answer 4

(a) where an acknowledgement of service has been filed but, at the date on which judgment is entered, a defence has not been filed;

(b) in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed,

and, in either case, the relevant time limit for doing so has expired.

Question 5

What are the procedures to obtain default judgment?

Answer 5

Claimant may obtain default judgment by FILING A REQUEST in the relevant practice form where the claim is for
- a specified sum of money
- an amount of money to be decided by the court
- delivery of goods

Question 6

Procedures to obtain default judgment?

If a claimant wishes to obtain default judgment with Part 23 - what must he do?

Answer 6

He MUST make an application in accordance with Part 23 if he wishes to obtain a default judgment:
- on a claim which consists or includes a claim for any other remedy.

Question 7

Procedure - What happens where a claimant claims any other remedy in his claim form but abandons that claim?

Answer 7

He may still obtain default judgment by filing a request.

Question 8

Claim against more than one defendant - which claims can that be?

Answer 8

A claimant may obtain a default judgment on request on a claim for money or a claim for delivery of goods against one of two or more defendants, and proceed with the claim against the other defendants.

Question 9

Claim against more than one defendant.
What happens If the claim can be dealt with separately from the claim against the other defendants?

Answer 9

(i) the court may enter a default judgment against that defendant; and
(ii) the claimant may continue the proceedings against the other defendants

Question 10

Claim against more than one D
What happens if the Claim cannot be dealt with separately?

Answer 10

the court will not enter default judgment against that defendant; and
(ii) the court must deal with the application at the same time as it deals with the claim against the other defendants.

Question 11

Can the claimant enforce judgment for possession of land or for delivery of goods?

Answer 11

A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless—
(a) they have obtained a judgment for possession or delivery (whether or not obtained under this Part) against all the defendants to the claim; or
(b) the court gives permission.

Question 12

in which claims can default judgment be obtained by making an application?

Answer 12

The claimant must make an application in accordance with Part 23 where—
(a) the claim is
(i) a claim against a child or protected party; or
(ii) a claim in tort by one spouse or civil partner against the other

Question 13

When MUST the court set aside Default Judgment?

Answer 13

Where in default of an acknowledgment of service, the Defendant has filed an acknowledgment of service in the relevant time for doing so; or

Where in default of a Defence, the Defendant has filed a Defence in the relevant time for doing so; or

The whole of the claim was satisfied before judgment was entered

Question 14

When MAY the court set aside Default Judgment?

Answer 14

The Defendant has a real prospect (possibility) of successfully defending the claim; OR

It appears to the Court that there is some other good reason why –

The judgment should be set aside or varied; or

The Defendant should be allowed to defend the claim.

Court should also have regard to whether the Defendant has made an application to do so promptly.

Question 15

The procedure for an application to set aside or vary a judgment

• What are the conditions for application?

Answer 15

These conditions include:
(a) The claim is for a specified amount of money.
(b) The judgment was obtained in a court that is not the defendant’s home court.
(c) The claim has not been transferred or, in the County Court, sent to another defendant’s home court.
(d) The defendant is an individual.

Question 16

The procedure for an application to set aside or vary a judgment

• Transfer to Defendant’s Home Court?

Answer 16

In the High Court, if the conditions in paragraph (1) are met, the court will transfer the application made by the defendant under this Part to set aside or vary the judgment to the defendant’s home court.
In the County Court, if the conditions are met, a court officer will send the application to the defendant’s home court.

Question 17

Where—
(a) the claim is for a specified amount of money;
(b) the claim has been started in the County Court Money Claims Centre;
(c) the claim has not been sent to a County Court hearing centre; and
(d) the defendant is not an individual

what happens to the application?

Answer 17

An application by a defendant under this Part to set aside or vary the judgment will be sent to the preferred hearing centre.

Question 18

Should the application to set aside or vary judgment be supported by evidence?

Answer 18

An application must be supported by evidence.

Question 19

Commentary 13.3.1

Answer 19

Rule Overview: Rule 13.3 pertains to the setting aside of a regular judgment, and it grants the court discretionary power in this regard. It aims to prevent injustice.
Amendments and Regulatory Changes: The rule was amended in 2020 due to changes in regulations associated with the Service Regulation (1393/2007), which was subsequently revoked.
Discretionary Nature: The court has discretion when deciding whether to set aside a judgment under Rule 13.3. However, this discretion must be exercised in accordance with the overarching objectives of the court system outlined in Part 1 of the CPR.
Threshold for Setting Aside: To set aside a judgment under Rule 13.3, the defendant must meet certain criteria, specifically mentioned in Rule 13.3(1)(a) or (b). The defendant must show a “real prospect of successfully defending the claim,” which is a similar test to that applied for summary judgment under Part 24 of the CPR.
Burden of Proof: Unlike summary judgment applications, where the burden of proof rests on the claimant, under Rule 13.3, the burden of proof lies with the defendant. The defendant must convince the court that there is a good reason to set aside a judgment regularly obtained.
Purpose of Setting Aside: The primary consideration when applying for the setting aside of a judgment is whether the defendant has demonstrated a real prospect of successfully defending the claim or if there is some other compelling reason to set aside the judgment. The court does not take this decision lightly, as it involves depriving the claimant of a validly obtained judgment.
Discretion in Absentia: If a judgment or order was made in the absence of the applicant, the court’s discretion under the relevant CPR rule (Rule 23.10 or 13.3) should be followed. The court may decide not to set aside a judgment or order even if it was made at a hearing where the applicant should have been given notice.
Conditions on Setting Aside: If conditions are imposed on an order to set aside a judgment and the party cannot comply with them, it is considered tantamount to a refusal, making it essentially a final decision. The court’s decision should not be viewed as a mere case management decision in such cases.
Technical Failures: Alleged technical failures by the claimant may not necessarily be accepted as a valid reason to set aside a judgment under Rule 13.3.
Finality of Decision: A decision made by a judge under Rule 13.3 is considered a final decision and cannot be subject to a second application to set aside the judgment. The only recourse for a dissatisfied party is to appeal.

Question 20

Commentary 13.3.2

Answer 20

Some other good reason

Question 21

Commentary 13.3.3

Answer 21

Need to act promptly

Question 22

Commentary 13.3.4

Answer 22

Application to set aside judgment by a non-party

Question 23

Commentary 13.3.5

Answer 23

Effects of court’s approach following implementation of Jackson

Question 24

What are the grounds for summary judgment?

CPR 24.2

Answer 24

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if—
(a) it considers that—
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

Question 25

What are the types of proceedings in which summary judgment is available?

CPR 24.3

Answer 25

(1) The court may give summary judgment against a claimant in any type of proceedings.
(2) The court may give summary judgment against a defendant in any type of proceedings except proceedings for possession of residential premises against—
(a) a mortgagor; or
(b) a tenant or contract-holder or a person holding over after the end of the tenancy whose occupancy is protected within the meaning of the Rent Act 1977, the Housing Act 1988 or the Renting Homes (Wales) Act 2016.

Question 26

What is the procedure for obtaining summary judgment?

CPR 24.4

Answer 26

(1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed—
(a) an acknowledgment of service; or
(b) a defence,
unless—
(i) the court gives permission; or
(ii) a practice direction provides otherwise.

In civil proceedings against the Crown, a claimant may not apply for summary judgment until after expiry of the period for filing a defence.
(2) If a party applies for summary judgment before a defendant has filed a defence, the defendant by or against whom the application is made need not file a defence before the hearing.

(3) Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days’ notice of—
(a) the date fixed for the hearing; and
(b) the issues which it is proposed that the court will decide at the hearing.

(4) A practice direction may provide for a different period of notice to be given.

Question 27

Evidence for the purposes of a summary judgment.

CPR 24.5

Answer 27

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must—
(a) file the written evidence; and
(b) serve copies on every other party to the application,
at least 7 days before the summary judgment hearing.

(2) If the applicant wishes to rely on written evidence in reply, he must—
(a) file the written evidence; and
(b) serve a copy on the respondent,
at least 3 days before the summary judgment hearing.

(3) Where a summary judgment hearing is fixed by the court of its own initiative—
(a) any party who wishes to rely on written evidence at the hearing must—
(i) file the written evidence; and
(ii) unless the court orders otherwise, serve copies on every other party to the proceedings,
at least 7 days before the date of the hearing;
(b) any party who wishes to rely on written evidence at the hearing in reply to any other party’s written evidence must—
(i) file the written evidence in reply; and
(ii) unless the court orders otherwise serve copies on every other party to the proceedings,
at least 3 days before the date of the hearing.

(4) This rule does not require written evidence—
(a) to be filed if it has already been filed; or
(b) to be served on a party on whom it has already been served.

Question 28

What are the court’s powers when it determines a summary judgment application?

CPR 24.6

Answer 28

When the court determines a summary judgment application it may—
(a) give directions as to the filing and service of a defence;
(b) give further directions about the management of the case.

Question 29

Applications for summary judgment under Part 24

24PD.1

Answer 29

In this Practice Direction, where the context so admits, the word claim includes—
(1)a part of a claim, and
(2)an issue on which the claim in whole or part depends.
An application for summary judgment under rule 24.2 may be based on—
(1)a point of law (including a question of construction of a document),
(2)the evidence which can reasonably be expected to be available at trial or the lack of it, or
(3)a combination of these.

Question 30

Procedures

Answer 30

The application notice must include a statement that it is an application for summary judgment made under Part 24.

The application notice or the evidence contained or referred to in it or served with it must
(a)identify concisely any point of law or provision in a document on which the applicant relies, and/or
(b)state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim

Where the claimant has failed to comply with Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol, an action for summary judgment will not normally be entertained before the defence has been filed or, alternatively, the time for doing so has expired.

Question 31

The hearing?
24PD.3

Answer 31

(1)The hearing of the application will normally take place before a Master or a District Judge.
(2)The Master or District Judge may direct that the application be heard by a High Court Judge (if the case is in the High Court) or a Circuit Judge (if the case is in the County Court)

Question 32

The Court’s approach

24PD.4 Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so?

Answer 32

the court may make a conditional order

24PD 5.1The orders the court may make on an application under Part 24 include
(1)judgment on the claim,
(2)the striking out or dismissal of the claim,
(3)the dismissal of the application,
(4)a conditional order.

24PD 5.2
A conditional order is an order which requires a party—
(1)to pay a sum of money into court, or
(2)to take a specified step in relation to his claim or defence, as the case may be, and provides that that party’s claim will be dismissed or his statement of case will be struck out if he does not comply.

Question 33

Setting aside order for summary judgment

When can a respondent set aside summary judgment?

Answer 33

If an order for summary judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied
8.2
On the hearing of an application under paragraph 8.1 the court may make such order as it thinks just.

Question 34

Costs
9.1
24PD.9 Attention is drawn to Part 45 (Fixed Costs).

Answer 34

if an order does not mention costs no party is entitled to costs relating to that order.

Question 35

Case management

Answer 35

Where the court dismisses the application or makes an order that does not completely dispose of the claim, the court will give case management directions as to the future conduct of the case.

Question 36

Commentary 24.2.3-24.2.7
24.6.6-24.6.7