Default Judgment Flashcards
What is a default judgment?
What must have a party failed to do in order for default judgment to be an option?
- Defendant
- Claimant
Judgment without a trial
D = failed to acknowledge service or serve a defence and time for doing so has expired
C = failed to file defence to counterclaim within relevant time
When can a C not obtain default judgment?
If D has applies to have the C statement of case struck out or the D has applied for SUMMARY judgment
In what circumstances may a C obtain default judgment by filing a request in the relevant practice form?
(4)
What does C need to provide in the form if known and D is an individual?
Should notice be given?
- Claim for specified sum of money
- Sum of money to be decided by the court
- Judgement for delivery of goods or payment of their value
- Combination of the above
D’s DOB
Notice = yes
What can a C request for default judgment also include if it is a claim for a specified sum of money?
And what can C specify in the request?
What will the judgment be for if default judgment is granted?
The amount of interest claimed to the date of judgment
May specify date by which judgment debt is to be paid or times and rate at which it is to be paid in instalments
Judgment = For the amount of the clam and costs
What will the judgment be for if the default judgment claim is for an amount to be decided by the courts?
What will the judgment be for if the default judgment claim is for the delivery of goods?
Damages decided by the court and costs
Judgment for delivery’s of goods or pay value of the goods as decided by the court + costs
What must C apply for if they seek a remedy which is not sum of money/delivery of goods (i.e not covered by 12.4)?
In what other circumstances is this type of application needed?
Is this on notice?
What can C do if their claim is mixed but wants to proceed by filing a request in the relevant practice form?
Claimant must make a pt 23 application rather than merely a request
Also needed if the claim is against a child or protected party claim in tort against spouse Claim or costs (that is not fixed) Delivery of goods when payment of sum is not an option
Yes on notice
Then C may abandon the other remedy aspect of the claim and proceed under CPR 12.4(1)
What are the C options if their claim is against more than 1 defendant?
- If C has obtained default judgment, for possession of land or delivery of goods, but their claim involves more than 1 D, what conditions must be met before they can enforce?
1=
Need to see if claim can be dealt with separately against one of the Ds
If can: then court enter default judgment against 1 D and main claim can be carried on against the other D
If cannot be dealt with separately = Court will not enter default judgment and court will deal with all D at the same time
2 = C must have a judgment against both/all Ds before proceeding or the court gives permission, before C enforces judgment
What evidence must the C provide when applying or on requesting default judgment? I.e in either method
What if the application is against child or PP?
Evidence that:
- PofC has been served on D
- D has not served AofS or defence and time to do dos has expired
- D has not satisfied the claim
- D has not filed an admission
Then C must show litigation friend been appointed and that C is entitled to the judgment claimed
When MUST a court set aside a default judgment?
If the judgement was entered wrongly because …
- D had served an acknowledgement of service or a defence
- The relevant time for doing ^^ had not expired
Then D entitled to have judgment set aside and judgement must be set aside as irregular
When MAY the court set aside or vary a (regular) default judgment?
What matters must the court have regard to when considering whether to set aside or vary a judgment?
Defendant 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/varied or D allowed to defend claim
The matter to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so PROMPTLY
‘May’ = this is an exercise of the court’s …
Will court make this decision lightly?
Is it enough to to show that D has an arguable defence?
What has been held to amount to ‘some other good reason’?
What has been held to amount to ‘promptly ’?
May = Court has discretion
No, D has to show good reason why, Court will not lightly deprive C of a judgment validly obtained
Arguable = NOT enough, must have a ‘real prospect of successfully defending the claim”
Some other good reason = Serious allegations where D should be able to defended their self
Promptly = depend on circumstances, 59 days “outer limits” may be even 30 days too long
What must the court also consider after considering 13.3?
An application under 13.3 is an application for relief from sanctions, therefore court must also consider CPR 3.9 and the DENTON test
What will the court consider under CPR 3.9?
All of the circumstances to enable it to deal with the application justly
Including need ….
For litigation to be conduct efficiently and at proportionate cost
AND
To enforce compliance with rules/PD/orders
What is the DENTON test?
3 questions:
- Is the breach serious and significant?
- Why did the breach happen?
- What are all the circumstances of the case?
On an application to set aside a default judgment which one of the following statements reflects what the Court would consider as the most significant factor when deciding whether to grant the application?
[A] Any delay by the Defendant in his application to set aside the default judgment.
[B] Whether the Claimant has an arguable cause of action.
[C] The prejudice caused to the Claimant if the default judgment is set aside. [D] All the circumstances of the case and the need to conduct the litigation efficiently and at proportionate cost.
[A] Delay
This is because [D] sets out Denton principles — THIS MUST BE CONSIDERED AFTER THE COURT CONSIDERS THE TEST IN 13.3 ITSELF
Commentary make clear that DELAY in making application is a matter the court will consider significant
