Early disposal (default judgment)

Question 1

What is default judgment?

Answer 1

Means applying for judgement to be granted in the claimant’s favour without a trial if the defendant has not responded to the claim by either serving an acknowledgement of service or a defence within the prescribed time limits.

Also referred to as judgment in default i.e. default of the defendant doing something.

Question 2

What must the claimant show to obtain default judgement?

Answer 2

Conditions:

• time period has expired for filing an acknowledgement of service or defence and one has not been filed
• claim has not been admitted or satisfied by the defendant
• no application for summary judgement or strike out has been made by the defendant

Question 3

What is the difference between default judgment and strike out

Answer 3

Court has power to strike out a statement of case under CPR 3.4.

Strike out focuses on a statement of case and so covers cases which do not amount to a legally recognisable claim or defence.

Default judgement covers cases where the defendant has failed to respond to the claim and does not look at the contents of the statement of case.

Question 4

Difference between default judgement and summary judgement

Answer 4

Default judgement is the consequence of the defendant failing to respond to a claim.

Default is therefore procedural: if a defendant fails to file an acknowledge of service and/or defence in accordance with the CPR time limits: the claimant can apply for default judgement. The court does not consider the merits of the case when applying for default judgement.

In contrast, summary judgement covers cases which are weak on the facts so the court will consider the merits of the case.

Question 5

Procedure for obtaining default judgement: specified sum

Answer 5

Claimant may file a request for judgement on a specified form and the application will be dealt with on paper.

Court will make a judgement for the amount sought, fixed costs and interest accrued to the date of judgement.

Question 6

Procedure for obtaining default judgement: unspecified sum

Answer 6

Claimant may file a request for judgement on the specified form and the application will be dealt with on paper.

The court will enter a judgment for a sum to be decided by the court and will set a timetable leading up to a hearing at which the court will decide that sum.

Question 7

Procedure for obtaining default judgement: non-money claims

Answer 7

These cannot be decided on paper.

Claimant must apply for a default judgement hearing to be listed at which the court will hear from the claimant as to why default judgment should be granted and what judgement should be given.

Court will then give whatever judgement it considers appropriate.

Question 8

Setting aside default judgement

Answer 8

CPR 13.2 or 13.3

Application will normally need to be determined at a hearing unless claimant consents to the judgement being set aside.

Question 9

Cases where the court MUST set aside judgement

Answer 9

CPR 13.2: judgement was wrongly entered

• time limit had not expires
• AoS or D had actually be filed on time
• Summary judgement or strike out had been applied for before the judgement was entered
• Defendant had satisfied the whole of the claim before judgement was entered or admitted the claim or required time to pay

Question 10

Cases where the court MAY set aside default judgment

Answer 10

CPR 13.3: if judgment was correctly entered

Reasons the court may exercise its discretion:
- Defendant has a real prospect of successfully defending the claim; or

• it appears to the court that there is some other good reason why the judgement should be set aside or varied or the defendant should be allowed to defend

Question 11

Real prospect of success

Answer 11

• Not enough to show defence is merely arguable but that there is a real prospect.
• should not be a mini trial

Question 12

Some other good reasons

Answer 12

• claimant lulled the defendant into believing a claim was not forthcoming
• claimant failed to serve a response pack
• claim raises issues which should be given full and fair hearing in the public interest

Question 13

13.3: other considerations

Answer 13

“may set aside”: provides the court with a discretion and therefore it must act in accordance with the overriding objective

Delay:
Court must consider how promptly the defendant made its application to set the judgement aside - need to comply with time limits and act promptly

Relief from sanctions: must also apply denton