Default Judgment and Summary Judgment Flashcards
What is Default Judgment?
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
Default is NOT available for claims under…
- Part 8
- Delivery of Goods subject to Consumer Credit Act 1974
Criteria for getting default judgment entered
- at date judgment is entered, D has failed to file an ack/defence and time for doing so has expired
Default judgment may not be obtained if
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
Procedure for obtaining default judgment
- 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
Nature of Default judgment obtained by filing request
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
Is it possible to gain interest on claim in default judgment?
yes, interest payable up to date of judgment, if PoC inlcude claim for interest under contract/SCA/CCA
Is it possible to obtain default judgment against multiple Ds/1 in multiple?
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
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?
APPLICATION in accordance with Part 23.
Cases where court MUST set aside default judgment
- judgment has been wrongly entered (time not expired/claim satisfied)
Cases where court MAY set aside judgment (Applicant to prove)
- 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
application to set aside will be transferred to D’s home county court if (4 categories)
- 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
application to set aside will be transferred to D’s preferred hearing centre where (4 categories)
- claim for specified sum
- claim started in CCMCC
- Claim sent to a CC hearing centre
- D NOT an individual
What test will the court apply when considering “real prospect of success”
Swain v Hillman - more than fanciful - ED&F man liquid - degree of conviction
Decision made by judge under r13.3 is final - cannot be subject to a second appeal, - what can dissatsified party do?
appeal judge’s decision
examples of “some other good reason”
- 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
need to act promptly - how can D show they have done so?
application made within 30-59 days of judgment being entered
cannot rely on default of other parties
Can a non-party make application to set aside?
yes - Humber Work Boats Ltd v Owners of Selby Paradigm, insurers to D allowed to make application and be joined as 2nd D
Grounds for Summary Judgment
- 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.
When is SJ available against C/D
- Against C in any type of proceedings
- Against D in any proceedings EXCEPT for possession of residential premises against mortgagor or tenant.
Procedure for SJ application
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)
When is evidence to be exchanged before hearing
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)
What powers does the court have when determining SJ application?
- give directions as to the filing and service of defence
- give further directions about the management of the case
“no real prospect of success/fully defending”
- 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
who bears burden of proof in SJ application?
the applicant to establish R has no real prospect - where credible evidence given - R must disprove
What is the effect of a claim in set-off/Counterclaim ?
SJ may not be given -
set off is not available on dishonoured bill or cheque - why?
treated as if cash had been handed over - should be honoured unless some good reason to contrary
what is the earliest time for application where part 8 procedure used.
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
basis for SJ application
- point of law
- evidence which can reasonably be expected to be available at trial/or lack thereof
- combo
When will court make a conditional order in SJ proceedings
- 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)
