Default Judgment And Setting Aside Flashcards
12.1 meaning of default judgement
Default judgement means of turning judgement without trial where the defendant has failed to file an acknowledgement of service or failed to file a defence
12.2 claims were default judgement may not be obtained
Delivery of goods subject to consumer credit act
Pt 8
PD says otherwise
12.3 conditions to be satisfied
Judgement regarding acknowledgement of service is:
Defendant fails to file an AOS and time has expired
Judgement regarding defence:
acknowledgement of service has been filed but defence hasn’t and the relevant time period has expired
12.3 conditions were default judgement cannot be obtained
If the defendant has applied to strike out the claimants statement of case or summary judgement
If the defendant has satisfied the whole claim i.e. a money claim and has filed admission
12.4 procedure for default judgement
File a request:
Specified sum of money, amount decided by the court and delivery of goods were the defendant can pay their value.
Application:
Where the defendant is an individual and you must provide DOB. Use pt 23.
12.5 nature of judgement when obtained by filing a request
If it is a specified sum:
C May request date of the whole judgement debt to be paid or time/rate of instalments
Judgement in this instance will be for the amount and the costs either paid by the date/rate stated or is not stated then immediately
If it is an on specified so they can file a request of the court to decide
12.6 interest
Specified sum:
May include interest claimed to the date of the judgement if -
• particular of claim details it
• Claimed under 35A SCA or 69 CCA
• The request includes calculation of interest
12.7 claims against more than one defendant
If it is a specified sum/delivery of goods:
Claimant can request DJ against one defendant and carry on the claims it it can be dealt with separately.
If it cannot be dealt with separately The court must deal with the application at the disposal of the proceedings
12.10 default judgement obtained by making application
Must make an application pursuant to part 23:
• Claim in tort by spouse or civil partner
• attaining DJ where the defendant has failed to file an acknowledgement of service (outside of the jurisdiction, state, diplomat).
13.1
To vary or set aside part 12
13.2 where the court must set aside default judgement
Judgement was wrongly entered
AOS - Acknowledgement of service or defence was filed and the time limit had not expired
Def - Acknowledgement of service or defence was filed And the time limit has not expired or defendant apply to strike out, summary judgement or they satisfied the claim
13.3 where the court may set aside default judgement
Where the defendant has a real prospect of success defending the claim or some other good reason.
Was the application made promptly?
13.4 Procedure
If the claim is for a specified sum and judgement is entered away from the defendants home court and the defendant is an individual it must be transferred to the defendants court
If it is a specified some that was started in the CCMC and it is not sent to the County Court and the defendant is not an individual - preferred centre