Default Judgement and Set Aside Judgements

Default Judgement- Claim against more than one defendant

A claimant may obtain a default judgment against one of two or more defendants and proceed with the claim against the other defendants if the claim can be dealt with separately from the claim against the other defendants

What must the claimant show to obtain default judgment?

At the date on which judgment is entered, time has expired for filing an acknowledgment of service (and the defendant has not filed either an acknowledgment of service or a defence) or time has expired for filing a defence (where the defendant has filed an acknowledgment of service but not a defence). The claim has not been admitted or satisfied by the defendant. No application for summary judgment or strike out has been made has been made by the defendant.

What is the difference between Default Judgement and Summary Judgement?

Default judgment is the consequence of the defendant failing to respond to a claim. Default judgment is therefore procedural: if a defendant fails to file an acknowledgment of service and/or a defence in accordance with the CPR time limits, the claimant can apply for default judgment. The court does not consider the merits of the case when ordering default judgment. In contrast, summary judgment covers cases which are weak on the facts.

Cases where the court 'may' set aside

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 is has 'a real prospect of successfully defending the claim'. 'May' set aside provides the court with a discretion and therefore it must act in accordance with the overriding objective.

What is the difference between default judgment and strike out?

Strike out focuses on a statement of case and so covers cases which do not amount to a legally recognisable claim or defence. Default judgment covers cases where the defendant has failed to respond to the claim and does not look at the contents of the statement of case.

Procedure for default judgement- money claims (unspecified sum)

The claimant must file a request for judgment 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.

Procedure for Default Judgement- money claims (specified sum)

The claimant must 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.

Setting aside default judgement- order

The court may set aside default judgment with conditions attached, eg that the defendant pays the claimant's costs of the hearing.

Setting aside default judgement- delay

The court must also consider how promptly the defendant made its application to set the judgment aside

Setting aside Default Judgement If judgment was correctly entered

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

Setting aside Default Judgement If judgment was wrongly entered

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

Court's approach to setting aside: relief from sanctions and Denton

Therefore, the tests for the application of CPR 3.9 laid down in Denton and others v TH White Ltd and another, Decadent Vapours Ltd v Bevan and others and Utilise TDS Limited v Davies and others [2014] EWCA Civ 906

What is a default judgement?

applying for judgment 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

Procedure for Default Judgement- non money claims

cannot be decided on paper. Instead the claimant must apply for a default judgment hearing to be listed under CPR 23. The court will then give whatever judgment it considers appropriate.

Default Judgement- interest

default judgement on a claim for a specified amount of money may include the amount of interest claimed to the date of judgment provided: 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. In any other case, the amount of interest will be decided by the court.

What is the effect of a successful default judgement?

the claimant has won the case

Default Judgement- claim against more than one defendant; if they cannot be separated

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.