Early Disposal

Question 1

what is judgment in default?

Answer 1

judgment without a trial where the defendant has:
- failed to file an AOS; or
- failed to file a defence or any document intended to be a defence

Question 2

A claimant may not obtain a default judgment—

Answer 2

(a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974;
(b) where they use the procedure set out in Part 8 (alternative procedure for claims); or
(c) in any other case where a rule or practice direction says that the claimant may not obtain default judgment.

Question 3

a judgment in default of an AOS may be entered if —

Answer 3

• the defendant has not filed an AOS our a defence to the claim; and
• the relevant time for doing so has expired

Question 4

a judgment in default for a defence may be entered if —

Answer 4

• the defendant has failed to file an AOS or a defence to the claim; and
• in a counterclaim under CPR 20.4, a defence has not been filed

and in either case the relevant tome for doing so has expired

Question 5

judgment in default may NOT be obtained by the Claimant if —

Answer 5

• defendant has applied to have the claimants statement of case struck out under CPR 3.4 and application has not been dealt with; or
• defendant has applied for summary judgment under CPR 24 and application has not been dealt with; or
• defendant has satisfied the whole claim which C has sought; or
• claimant is seeking a money claim and the defendant has filed or served an admission

Question 6

procedure for obtaining a default judgment on a money claim with a specified sum

Answer 6

Claimant may file a request for judgment on the specified form and the application will be dealt with on paper. the court will make a judgment for the amount sought, fixed costs and interest accrued to the date of judgment.

Question 7

procedure for obtaining default judgment on a money claim with an unspecified sum

Answer 7

Claimant may file a request for judgment in default on the specified form and the application may be dealt with on paper. the court will enter a judgement for a sum to be decided but he court and will set a timetable leafing up to a hearing at which the court will decide that sum.

Question 8

procedure for obtaining a judgment in default for non-money claims

Answer 8

Non-money applications for default judgment (together with a small number of other claims, which are beyond the scope of this element) cannot be decided on paper. instead the claimant must APPLY for a default judgment hearing to be listed at which the court will hear from he claimant as to why default judgment should be granted and what judgement should be given. the court will then give whatever judgment it considers appropriate.

Question 9

a default judgment on a claim for a specified amount of money may include the amount of interest claimed to the date of judgment provided that —

Answer 9

• The particulars of claim include details of the interest (as required by CPR 16.4);
• Where statutory interest is claimed (under s.35A of the Supreme Court Act 1981 or s.69 of the County Courts Act 1984), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
• The claimant’s request for judgment includes a calculation of the interest claimed to the date of the request for judgment.

Question 10

can a claimant may obtain judgment in default on two or more defendants, and proceed further with the claim against the other defendants?

Answer 10

Yes.

Question 11

where the claimant applies for default judgment against one of two or more defendants and if the claim can be dealt with separately from the claim against the other defendants —

Answer 11

• the court may enter judgment in default against that defendant; and
• the claimant may continue the proceedings against the other defendants

Question 12

where the claimant applies for default judgment against one of two or more defendants and if the claim cannot be dealt with separately from the claim against the other defendants —

Answer 12

CPR States:
- the court will not enter judgment in default against that defendant; and
- the court must deal with the application at the same time as it deals with the claims against the other defendants

Adapt explanation:
Sometimes the claim cannot be dealt with separately eg where the claim against the two defendants is ‘in the alternative’, meaning the claimant alleges one (and only one) of the defendants is liable, but does not know which. The success of one claim and the failure of the other go hand in hand, so they cannot be dealt with separately. So the court will deal with the application for default judgment against one defendant at the same time as it disposes of the claim against the other defendants – quite possibly at trial.

Question 13

the claimant must make an application in accordance with CPR 23 if they wish to obtain judgment in default where —

Answer 13

the claim is—
- a claim against a child or protected party; or
- a claim in tort by one spouse or civil partner against the other;

Question 14

which part of the CPR deals with setting aside or varying default judgment?

Answer 14

CPR 13.2-13.3

Question 15

when MUST the court set aside or vary default judgment?

Answer 15

where the judgment in default was wrongly entered because:

• the time limit for acknowledging service or serving defence has not, in fact, expired when judgment was entered; or
• an acknowledgement of service or defence had, in fact, been filed on time; or
• summary judgment or strike out had been applied before the judgment was entered; or
• the defendant had, in fact, satisfied the whole of the claim before the judgment was entered or admitted the claim or required time to pay.

Question 16

when MAY the court set aside or vary default judgment

Answer 16

• the defendant has a real prospect of successfully defending the claim; or
• it appears tot he court that there is some other good reason why judgment in default should be set aside or varied or the defendant should be allowed to defend.

Question 17

what case must be applied when setting aside default judgment?

Answer 17

Denton v TH White

Question 18

what other factor must the court consider when they MAY set aside or vary default judgment?

Answer 18

how promptly they made the application. CPR 13.3(2)

Question 19

what kind of application is a setting aside a default judgment?

Answer 19

relief from sanctions. Commentary 13.3.5

Question 20

what are the Denton principles?

Answer 20

• whether the breach was serious and significant
• why the breach occurred
• all the circumstances in the case

Question 21

In the High Court the court will transfer, or, in the County Court, the court officer will send, an application by a defendant under this Part to set aside or vary judgment to the defendant’s home court where —

Answer 21

(a) the claim is for a specified amount of money;
(b) the judgment was obtained in a court which 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; and
(d) the defendant is an individual,

Question 22

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

Answer 22

(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,

Question 23

what kind of power does the court have to set aside or vary default judgment under 13.3?

Answer 23

discretionary

Question 24

under CPR 13.3, what is the meaning of real prospect of success? Commentary 13.3.1

Answer 24

If relying on ‘a real prospect of success’, it is not enough for the defendant to show an ‘arguable’ defence. The defendant must show that it has ‘a real prospect of successfully defending the claim’. In assessing prospects of success, the court must not conduct a mini trial, but neither should it accept everything in the defendant’s witness statement without analysis.

Question 25

who bares the burden to set aside default judgment?

Answer 25

defendant

Question 26

under CPR 13.3(1)(b) what is the meaning of “some other good reason”? Commentary 13.3.2

Answer 26

If relying on ‘some other good reason why judgment should be set aside’, examples of a good reason might be that the claimant lulled the defendant into believing a claim was not forthcoming, the claimant failed to serve a response pack, or the claim raises issues which should be given a full and fair hearing in the public interest.

Question 27

under CPR 13.3(2) what is the meaning of acting promptly? Commentary 13.3.3

Answer 27

there is no exact science of knowing when someone has acted promptly, it can heavily depend not he circumstances and that setting aside default judgment can be granted even in excessive delays of applying under CPR 13.3

case of Khan, states that 59 days goes on the outer limit of allowing an application
the factor of ‘celerity in the circumstances’ also has to be addressed, this is under Khan

the duty to act promptly was under the defendant themselves.

Question 28

application to set aside a default judgment by a non-party. commentary 13.3.4

Answer 28

a person who is not a party but who is “directly affected” by a judgment or order may apply to have it set aside. It would seem that this rule applies to default judgments

Question 29

what is the purpose of a summary judgment? CPR 24.1

Answer 29

The purpose of summary judgment is to enable the court to dispose of claims or issues without the need for a full trial

Question 30

can a party combine a summary judgment application and a strike out application?

Answer 30

Yes. There is considerable overlap between the two provisions. Many cases fall within both strike out (CPR 3.4) and summary judgment (CPR 24). It is often appropriate for a party to combine these two applications.

Question 31

what are the grounds for summary judgment?

Answer 31

(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.

(Rule 3.4 makes provision for the court to strike out(GL) a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim.)

Question 32

what types of proceedings may summary judgement be available?

Answer 32

The court may give summary judgment against a defendant in any type of proceedings except proceedings for possession of residential premises against—
- a mortgagor; or
- a tenant or a person holding over after the end of the tenancy whose occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988.

Question 33

a claimant may not apply for a summary judgment until the defendant has filed —

Answer 33

• an acknowledgment of service; or
• a defence,

unless the court gives permission or a practice direction provides otherwise.

Question 34

If a party applies for summary judgment before a defendant has filed a defence…

Answer 34

…the defendant by or against whom the application is made need not file a defence before the hearing.

Question 35

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 —

Answer 35

• the date fixed for the hearing; and
• the issues which it is proposed that the court will decide at the hearing.

Question 36

If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must—

Answer 36

• file the written evidence; and
• serve copies on every other party to the application,

AT LEAST 7 DAYS before the summary judgment hearing.

Question 37

If the applicant wishes to rely on written evidence in reply, he must—

Answer 37

• file the written evidence; and
• serve a copy on the respondent,

AT LEAST 3 DAYS before the summary judgment hearing.

Question 38

what happens to the procedural rules of summary judgement when the court fixes it on its own initiative?

Answer 38

where the summary judgement is fixed but he court on its own initiative, then the normal rules apply to the amount of days for respondent and applicant to file and serve evidence in reply.

service of the documents must be done unless the court orders otherwise

Question 39

When the court determines a summary judgment application it may—

Answer 39

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

the court may attach conditions when it makes an order

Question 40

for summary judgment, the word claim includes:

Answer 40

• a part of a claim; and
• a point on which that claim or part of claim relies upon

Question 41

an application for summary judgement may be based on:

Answer 41

• a point of law;
• evidence which can be reasonably expected at trial, or lack of evidence; or
• a combination

Question 42

when applying for summary judgment, what must be included under the application notice?

Answer 42

a statement that it is an application for summary judgment

The notice should:

• identify concisely any point of law or provision in a document on which the applicant relies, and/or
• state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates,

and in either case state that the applicant knows of no other reason why the disposal of the claim or issue should await trial.

Question 43

Summary judgment where the claimant has failed to comply with the Pre-Action Protocol

Answer 43

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 44

what is the hearing like for a summary judgment?

Answer 44

The hearing of the application will normally take place before a Master or a District Judge.
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 45

what if the court sees that the claim or defence is improbable in a summary judgment application?

Answer 45

Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order, as described below.

Question 46

what can the court order for summary judgment?

Answer 46

The orders the court may make on an application under Part 24 include—
- judgment on the claim,
- the striking out or dismissal of the claim,
- the dismissal of the application,
- a conditional order.

Question 47

a conditional order is an order which requires a party to —

Answer 47

• to pay a sum of money into court, or
• 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 48

order for a summary judgment for a respondent not present

Answer 48

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

On the hearing of an application where the respondent is not present the court may make such order as it thinks just.

Question 49

costs for a summary judgment

Answer 49

• court may award fixed costs
• the court has the power to make a summary assessment of costs.
• if an order does not mention costs no party is entitled to costs relating to that order.

Question 50

case management following a summary judgment hearing

Answer 50

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 51

Summary judgment. the meaning of no real prospect of succeeding or successfully defending a claim. Commentary 24.2.3

Answer 51

• The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All E.R. 91
• A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472
• In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman;
• This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court.
• In reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial
• the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application
• The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be.

Question 52

summary judgment. the meaning of no other compelling reason for a trial. Commentary 24.2.4

Answer 52

summary judgment for the claimant against the first defendant was held to be inappropriate where similar issues remained to be determined at a trial as between the first defendant and other parties. In all the circumstances that constituted a “compelling reason” not to enter summary judgment.

Question 53

summary judgment. Burden of proof. Commentary CPR 24.2.5

Answer 53

• In ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472; [2003] EWCA Civ 472, it was said that under r.24.2 the overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial.
• If the applicant for summary judgment adduces credible evidence in support of their application, the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial.
• The standard of proof required of the respondent is not high. It suffices merely to rebut the applicant’s statement of belief.

Question 54

Summary judgment. Effect of set-off or counterclaim. Commentary 24.2.6

Answer 54

• A claimant may be prevented from obtaining summary judgment, in whole or in part, if the defendant can show that he intends to raise a set off or counterclaim which raises a triable issue, i.e. has some prospect of succeeding
• if the facts relied upon by the defendant amount to a set off, the claimant may obtain summary judgment only to the extent that the value of his claim overtops the value of the set off. If the claim value is the same as or lower than the alleged value of the set off, the claimant’s application for summary judgment will be dismissed
• If the defendant raises a triable counterclaim which cannot be deployed as a set off, the court may grant summary judgment to the claimant but with a stay of enforcement pending the trial of the counterclaim

Question 55

Summary judgment. No set off action on a dishonoured cheque. Commentary 24.2.7

Answer 55

• In proceedings on a dishonoured bill of exchange, or cheque or promissory note save in exceptional circumstances or upon strong grounds
• a bill of exchange or a promissory note is to be treated as cash. It is to be honoured unless there is some good reason to the contrary

Question 56

Summary judgment. Conditional order. Commentary 24.6.6

Answer 56

• the court should identify the purpose of imposing a condition and should satisfy itself that the condition it has in mind represents a proportionate and effective means of achieving that purpose, having regard to the order to which it is to be attached.
• In summary judgment applications against a defendant the purpose of making a conditional order requiring payment in to court is usually to provide security in respect of a particularly weak defence.

Question 57

Summary judgment. Conditional orders for payment into court or security for costs. Commentary 26.6.7

Answer 57

5 principles:

1. In a case where the defendant has a real prospect of successfully defending the claim, the court must not impose a condition requiring payment.
   2.The burden is on the defendant to establish on the balance of probabilities that it would be unable to comply with a condition requiring payment into court or the provision of equivalent security.
2. with that burden a defendant must show it does not its have the necessary funds and no such funds would be made available to it
3. a defendant to a summary judgment application to adduce evidence about the resources available to it.
4. Such an order may be appropriate in other circumstances, for example (and without being exhaustive) if there is a history of failures to comply with orders of the court or there is a real doubt whether the party in question is conducting the litigation in good faith. However, the court needs to exercise caution before making a conditional order.