Default Judgment and Summary Judgment

Question 1

What is Default Judgment?

Answer 1

judgment without trial, where the D has failed to file an acknowledgment of service OR failed to file a defence/doc intended to be a defence

Question 2

Default is NOT available for claims under…

Answer 2

• Part 8
• Delivery of Goods subject to Consumer Credit Act 1974

Question 3

Criteria for getting default judgment entered

Answer 3

• at date judgment is entered, D has failed to file an ack/defence and time for doing so has expired

Question 4

Default judgment may not be obtained if

Answer 4

Defendant has
- applied to have C’s SOC struck out
- applied for summary judgment
- satsified whole claim
- notice has been given of application for Justice and Security Act 2013

Question 5

Procedure for obtaining default judgment

Answer 5

• file a REQUEST where claim is for Money to be decided by court/delivery of goods or money in lieu
• Where D is an individual - must provide their DOB where known
• APPLICATION under Part 23 for any other claim

Question 6

Nature of Default judgment obtained by filing request

Answer 6

Generally in the form requested, ie sum of money, OR delivery of goods or value of goods plus costs.
To be paid when specified, if not specified, immediately due

Question 7

Is it possible to gain interest on claim in default judgment?

Answer 7

yes, interest payable up to date of judgment, if PoC inlcude claim for interest under contract/SCA/CCA

Question 8

Is it possible to obtain default judgment against multiple Ds/1 in multiple?

Answer 8

Yes - if possible to deal with separately courts will enter default judgment against defaulting D - if not (e.g D’s in the alternative) they will not enter judgment /will deal with it at same time as hearing claim

Question 9

Where Default judgment is against a child/PP, or is a claim in TORT by a spouse/civil partner against the other - how can default judgment be obtained?

Answer 9

APPLICATION in accordance with Part 23.

Question 10

Cases where court MUST set aside default judgment

Answer 10

• judgment has been wrongly entered (time not expired/claim satisfied)

Question 11

Cases where court MAY set aside judgment (Applicant to prove)

Answer 11

• real prospect of successfully defending the claim OR some other good reason
• will take into account promptness of application
• app for relief from sanctions - Denton

Question 12

application to set aside will be transferred to D’s home county court if (4 categories)

Answer 12

• claim is for specified sum
• judgment obtained in court that is not Ds home court
• claim has not been transferred/sent to home court
• D is an individual

Question 13

application to set aside will be transferred to D’s preferred hearing centre where (4 categories)

Answer 13

• claim for specified sum
• claim started in CCMCC
• Claim sent to a CC hearing centre
• D NOT an individual

Question 14

What test will the court apply when considering “real prospect of success”

Answer 14

Swain v Hillman - more than fanciful - ED&F man liquid - degree of conviction

Question 15

Decision made by judge under r13.3 is final - cannot be subject to a second appeal, - what can dissatsified party do?

Answer 15

appeal judge’s decision

Question 16

examples of “some other good reason”

Answer 16

• aggressive conduct by Claimant
• C’s failure to serve response pack
• Cs failure to attempt to bring claim to Ds attention after delay pf 18 mths

Question 17

need to act promptly - how can D show they have done so?

Answer 17

application made within 30-59 days of judgment being entered
cannot rely on default of other parties

Question 18

Can a non-party make application to set aside?

Answer 18

yes - Humber Work Boats Ltd v Owners of Selby Paradigm, insurers to D allowed to make application and be joined as 2nd D

Question 19

Grounds for Summary Judgment

Answer 19

• C has no real prospect of succeeding on the claim OR
• D has no real prospect of successfully defending the claim or issue AND
• there is no other compelling reason why the case should be disposed of at trial.

Question 20

When is SJ available against C/D

Answer 20

• Against C in any type of proceedings
• Against D in any proceedings EXCEPT for possession of residential premises against mortgagor or tenant.

Question 21

Procedure for SJ application

Answer 21

C wait until D has filed ack OR Defence (pref wait for defence - but if app b4 D need not file defence)
Where hearing date fixed - respondent must be given 14 days notice of date and issues proposed to be heard (notice and any evidence)

Question 22

When is evidence to be exchanged before hearing

Answer 22

Respondent - at least 7 days before hearing (file and serve written copies on all parties)
Applicant (in reply) - at least 3 days before (file and serve written copies on all parties)

Question 23

What powers does the court have when determining SJ application?

Answer 23

• give directions as to the filing and service of defence
• give further directions about the management of the case

Question 24

“no real prospect of success/fully defending”

Answer 24

• Swain v Hillman - realisitic as opposed to fanciful = degree of conviction - no mini-trial - take into account evidence only insofar as necessary - evidence available now and what would be av at trial

Question 25

who bears burden of proof in SJ application?

Answer 25

the applicant to establish R has no real prospect - where credible evidence given - R must disprove

Question 26

What is the effect of a claim in set-off/Counterclaim ?

Answer 26

SJ may not be given -

Question 27

set off is not available on dishonoured bill or cheque - why?

Answer 27

treated as if cash had been handed over - should be honoured unless some good reason to contrary

Question 28

what is the earliest time for application where part 8 procedure used.

Answer 28

as C not required to file PoC, D not required to file defence and DJ cannot be obtained - earliest oppo for SJ is await ack/apply to court

Question 29

basis for SJ application

Answer 29

• point of law
• evidence which can reasonably be expected to be available at trial/or lack thereof
• combo

Question 30

When will court make a conditional order in SJ proceedings

Answer 30

• where there is a chance of success but judge thinks it unlikely (party will pay sum into court / take step in relation to claim or case will be struck out)