Default judgment
Disputes & Litigation

Default judgment is available to a claimant where the person sued fails to defend the claim under Part 12 of the Civil Procedure Rules. It is a procedure that averts the need for the claimant to go though the usual processes of litigation to obtain judgment, and thus averts the need for a trial.. A certificate of service will be required where the claimant has served the particulars of claim, but not where it was served by the court.

When claims are left undefended, it is this procedure that it most often adopted to obtain judgment in respect to money claims. It is available where the defendant has failed to file an acknowledgement of service within the required time (usually 14 days) or a defence (28 days) from the time of service of the particulars of claim. It is only available where the claim form claims a sum of money whether liquidated or unliquidated, or there is a claim for delivery of goods, and the defendant has the option of paying a sum representing the value of the goods. In other cases, the claimant must apply for summary judgment under Part 24 of the Civil Procedure Rules.

An appearance before the court will be required where:

1. the defendant was served outside the jurisdiction, under the Brussels Convention, Lugano Convention or Jurisdiction Regulation without the permission of the court prior to commencing the litigation
2. where the Service Regulation applies, judgment in default may not be obtained unless the court is satisfied that the defendant has been served in accordance the laws of the foreign country (amongst other things); and/or
3. the claim includes an application for an award of costs.

Default judgment must be set aside on the application of the defendant where:

1. the judgment was wrongly entered
2. the claim was satisfied before judgment was entered
3. the defendant had already applied for summary judgment or to strike out the claim; and/or
4. the defendant has filed an admission requesting time to pay.

In the other cases, the court maintains a discretion whether or not to set aside the judgment, and will do so only if it appears that the defendant has a real prospect of successfully defending the claim or there is some other reason why the defendant ought to be allowed to defendant the claim, having regard for any delay. A failure to explain away any delay is a factor in exercising the discretion by the court, and not conclusive of the approach the court may take. The court will also consider the prejudice that would (or would not) be suffered by the claimant by setting aside the judgment.