Default judgment (W6)

Question 1

CPR 12.1 - Meaning of ‘default judgment’

Answer 1

‘Default judgment’ means judgment without trial where a defendant –
(a) has failed to file an acknowledgement of service; or (b) has failed to file a defence.

Question 2

CPR 12.2 - Claims in which default judgment may not be obtained

Answer 2

(a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974
(b) where the claimant uses the procedure set out in Part 8
(c) in any other case where a PD provides that the claimant may not obtain default judgment.

Question 3

CPR 12.3 - Conditions to be satisfied

Answer 3

The claimant may obtain judgment in default of an acknowledgement of service only if at the date on which judgment is entered–

(a) the defendant has not filed an acknowledgement of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.

Judgment in default of defence may only be obtained –

(a) where an acknowledgment of service has been filed but at the date on which judgment is entered a defence has not been filed;
(b) in a counterclaim made under CPR 20.4, where at the date on which judgment is entered a defence has not been filed, and, in either case, the relevant time limit for doing so has expired.

The claimant may not obtain a default judgment if:

(a) the defendant has applied (i) to have the claimant’s statement of case struck out under CPR 3.4; or (ii) for summary judgment under CPR 24, and in either case, that application has not been disposed of;
(b) the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment;
(c) (i) the claimant is seeking judgment on a claim for money; and (ii) the defendant has filed or served on the claimant an admission under CPR 14.4 or 14.7 together with a request for time to pay; or
(d) notice has been given under CPR 82.21 of a person’s intention to make an application for a declaration under s.6 Justice and Security Act 2013 in relation to the proceedings, and that application has not been disposed of.

Question 4

CPR 12.4 - Procedure for obtaining default judgment

Answer 4

• A claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for:
  (a) a specified amount of money;
  (b) an amount of money to be decided by the court;
  (c) delivery of goods where the claim form gives the defendant the alternative of paying their value; or
  (d) any combination of these remedies.
• The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment:
  (a) on a claim which consists of or includes a claim for any other remedy; or
  (b) where rule 12.9 or 12.10 so provides,
  and where the defendant is an individual, the claimant must provide the defendant’s date of birth (if known) in Part C of the application notice.
• Where a claimant–
  (a) claims any other remedy in his claim form in addition to those in the first para, but (b) abandons the claim in his request for judgment, he may still obtain a default judgment by filing in that way.
• In civil proceedings against the Crown, as defined in CPR 66.1(2), a request for a default judgment must be considered by a Master or District Judge, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown in accordance with s.18 Crown Proceedings Act 1947 and CPR 6.10.

Question 5

CPR 12.5 - Nature of judgment where default judgment obtained by filing a request

Answer 5

• Where the claim is for a specified sum of money, the claimant may specify in a request filed under CPR 12.4(1)-
  (a) the date by which the whole of the judgment debt is to be paid; or (b) the times and rate at which it is to be paid by instalments.
• A default judgment on a claim for a specified amount of money obtained on the filing of a request, will be judgment for the amount of the claim (less any payments made) and costs (a) to be paid by the date or at the rate specified in the request; or (b) if none is specified, immediately.
• Where the claim is for an unspecified amount of money, a default judgment obtained on the filing of a request will be for an amount decided by the court and costs.
• Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained will be judgment requiring the defendant to (a) deliver the goods or pay the value of the goods as decided by the court; and (b) pay costs.

Question 6

CPR 12.6 - Interest

Answer 6

A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if–

(a) the particulars of claim include the details required by CPR 16.4;
(b) where interest is claimed under s.35A Senior Courts Act 1981 or s.69 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
(c) the claimant’s request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated in the claim form to the date of the request for judgment.
- Where this does not apply, the judgment will be for an amount of interest decided by the court.

Question 7

CPR 12.8 - Claim against more than one defendant

Answer 7

• A claimant may obtain a default judgment on request on a claim for money or a claim for delivery of goods against one of two or more defendants, and proceed with his claim against the other defendants.
• Where a claimant applies for default judgment against one of two or more defendants-
  (a) if the claim can be dealt with separately from the claim against the other defendants, (i) the court may enter default judgment against that defendant; and (ii) the claimant may continue the claim against the other defendants.
  (b) if the claim cannot be dealt with separately, (i) the court will not enter default judgment against that defendant; and (ii) the court must deal with the application at the same time as it disposes of the claim against the other defendants.
• A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless (a) he has obtained a judgment for possession or delivery against all the defendants to the claim, or (b) the court gives permission.

Question 8

CPR 12.10(a) - Default judgment obtained by making an application

Answer 8

The claimant must make an application in accordance with Part 23 where the claim is (i) a claim against a child or protected party; or (ii) a claim in tort by one spouse or civil partner against the other.

Question 9

12PD.1 - Default judgment

Answer 9

• A defence includes any document purporting to be a defence.
• A claimant may not obtain default judgment under Part 12 if (i) the procedure set out in Part 8 is being used, or (ii) the claim is for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974.
• Other rules and PDs provide that default judgment under Part 12 cannot be obtained in particular types of proceedings, e.g. admiralty proceedings, arbitration proceedings, contentious probate proceedings, claims for provisional damages, and possession claims.

Question 10

12PD.2 - Obtaining default judgment

Answer 10

Types of claim which require an application for default judgment rather than filing a request:

(1) against children and protected parties
(2) for costs (other than fixed costs) only
(3) by one spouse or civil partner against the other on a claim in tort
(4) for delivery of goods where the defendant will not be allowed the alternative of paying their value
(5) against persons or organisations who enjoy immunity from civil jurisdiction under the provisions of the International Organisations Acts 1968 and 1981

Question 11

12PD.3 - Default judgment by request

Answer 11

Requests for default judgment–

(i) in respect of a claim for a specified amount of money or for the delivery of goods where the defendant will be given the alternative of paying a specified sum, or for fixed costs only, must be in Form N205A or N225, and
(ii) in respect of a claim where an amount of money (including an amount representing the value of goods) is to be decided by the court, must be in Form N205B or N227.
- The forms require the claimant to provide the date of birth (if known) of the defendant where the defendant is an individual.

Question 12

12PD.4 - Evidence

Answer 12

Both on a request and on an application for default judgment, the court must be satisfied that:

(1) the particulars of claim have been served on the defendant
(2) either the defendant has not filed an acknowledgment of service or has not filed a defence and that in either case, the relevant period for doing so has expired
(3) the defendant has not satisfied the claim, and
(4) the defendant has not returned an admission with the court under CPR 14.6

Question 13

12PD.4.2 - Application against child or protected party

Answer 13

• A litigation friend to act on behalf of the child or protected party must be appointed by the court before judgment can be obtained, and
• The claimant must satisfy the court by evidence that he is entitled to the judgment claimed.

Question 14

12PD.4.6 - Delivery of goods where the defendant will not be given the alternative of paying their value

Answer 14

The evidence must identify the goods and state where the claimant believes the goods to be situated and why their specific delivery is sought.

Question 15

12PD.5 - General requirements

Answer 15

• On all applications, notice should be given in accordance with Part 23.
• Where a default judgment is given on a claim for a sum of money expressed in a foreign currency, the judgment should be for the amount of the foreign currency with the addition of “or the Sterling equivalent at the time of payment.”

Question 16

CPR 13.2 - Cases where the court must set aside a judgment entered under Part 12

Answer 16

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because:

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
(b) in the case of a judgment in default of a defence, any of the conditions under rule 12.3(2) and 12.3(3) was not satisfied; or
(c) the whole of the claim was satisfied before judgment was entered.

Question 17

CPR 13.3 - Cases where the court may set aside or vary judgment entered under Part 12

Answer 17

If

(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why (i) the judgment should be set aside or varied, or (ii) the defendant should be allowed to defend the claim.

In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person is seeking to set aside the judgment made an application to do so promptly.

The court may attach conditions when it makes an order.

Question 18

CPR 13.3.1 - Effect of the rule

Answer 18

• It is not enough to have an “arguable” defence, the defendant must show that they have “a real prospect of successfully defending the claim”
• Burden is on the defendant
• Not something the court will do lightly
• An application to set aside judgment or order made in the defendant’s absence must be determined in accordance with the court’s discretion under the CPR and the court may decide not to set aside a judgment or order even if made at a hearing at which the applicant has not, but should have been, given notice.
• Where a condition that a party is unable to comply with is imposed on an order granting the party’s application under CPR 13.3, the court’s decision is tantamount to a refusal and in effect, a final decision.
• The defendant cannot rely on alleged technical failures by the claimant in an application under 13.3
• A decision made by a judge under 13.3 is a final decision and cannot be the subject of a second application to set aside judgment or further challenge. The only way forward for a dissatisfied party is to appeal.

Question 19

CPR 13.3.2 - ‘some other good reason’

Answer 19

• solicitor’s ‘unnecessarily aggressive conduct’
• a broad discretion
• failure to serve a response pack
• where D had been lulled into the belief that the claim was not being pursued or at least induced him to forget about it

Question 20

CPR 13.3.3 - need to act promptly

Answer 20

• In applying to set aside, the court has always considered delay and the reasons for it.
• Promptness will always be a factor of considerable significance and if there has been a marked failure to make the application promptly, a court may well be justified in refusing relief, notwithstanding the possibility that the defendant may well succeed at trial.
• However, in certain cases the court may well conclude that the judgment may be set aside even where there has been excessive delay, e.g. where there are very serious conflicts of evidence, and the case has continued for some time, not just lain buried since judgment.
• A judge’s discretionary power is not to be exercised to punish a party for incompetence, but to further the overriding objective.
• A debtor who did nothing until the creditor sought to enforce the judgment, then applied to set aside, was refused permission as this amounted to an abuse of process.
• If a defendant has not acted promptly, they would be well advised to address the reason for this in their witness statement or affidavit.
• Held before that 30 days was too long a delay
• 59 days held to be ‘very much at the outer limit of what could possibly be acceptable’ and that in the context of the case where the applicant was not legally represented, the conduct of the respondent’s solicitors was aggressive and the application was premature, was allowed
• Defendants cannot rely on the default of their representatives as a reason for not acting promptly. The duty is imposed on the defendant personally.

Question 21

CPR 13.3.4 - Application to set aside judgment by a non-party

Answer 21

• Permission has been granted for a non party, insurers of the defendant, to be joined as a second defendant to set aside the default judgment against the defendant. The question was whether D or X (the insurers) had a defence that had a real prospect of success.
• A third party has been permitted to be joined to proceedings for the purpose of setting aside default judgment under CPR 40.9: under 40.9 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 seems this rule applies to default judgments.

Question 22

CPR 13.3.5 - Effects of court’s approach following implementation of Jackson

Answer 22

• CPR 1.1 (overriding objective) must be taken into account in considering the requirement to act promptly
• An application to set aside default judgment entered in default of defence is an application ‘for relief from any sanction’ within the meaning of CPR 3.9. The tests for the application of 3.9 laid down in Denton are therefore engaged.
• Court has adopted a generous interpretation of CPR 3.10, and held that electronic service of particulars of claim 5 days late and failing to comply with PD 6A governing service by electronic means could be treated as valid by 3.10 and refused to set aside a default judgment on the basis of invalid service of the particulars of claim.

Question 23

CPR 13.4 - Application to set aside or vary judgment procedure

Answer 23

Where (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, in the High Court the court will transfer or in the County Court the court officer will send an application by a defendant to set aside or vary judgment in the defendant’s home court.

Where (a) the claim is for a specified amount of money, (b) the claim has started in the County Court Money Claim Centre, (c) the claim has not been sent to a County Court hearing centre and (d) the defendant is not an individual, an application by a defendant under this Part to set aside or vary judgment will be sent to the preferred hearing centre.

This does not apply if the claim was commenced in a specialist list.

An application under CPR 13.3 must be supported by evidence.

If a claim is sent to a preferred hearing centre, any further correspondence should be sent to, and any further requests should be made at, the hearing centre to which the claim was sent.