#10350 - Responding To A Claim Default Judgment - BPC Civil Litigation

RESPONDING TO A CLAIM - DEFAULT JUDGMENT

WHEN CAN C ENTER DEFAULT JUDGMENT?

• can if:

1. D fails to file AoS OR defence within 14 days of deemed service of PoC; OR

2. if D files AoS - D fails to file defence within 28 days after deemed service of PoC

3. if extended by agreement / court order - D fails to file defence within extended time

• CANNOT if:

1. part 8 claim

2. claim for delivery of goods subject to Consumer Credit Act

3. claim for provisional damages

4. specialist proceedings:

   1. admiralty proceedings

   2. arbitration proceedings

   3. possession claims

   4. contentious probate proceedings

5. D has applied for SJ OR strike out

6. D has paid claim (including costs)

7. money claim: D has fully admitted liability AND requested time to pay

Stay of undefended claims

• if C does NOT seek default judgment - claim stayed 6 months after date for filing AoS / defence

• any party may apply to lift (relief from sanction)

REQUESTING DEFAULT JUDGMENT - money claims and delivery up of goods

1. C receives notice of issue form from court when claim issued:

1. ticks box on form saying D has failed to respond

2. enters amount sought: damages / debt + interest + fixed costs

3. signs and dates

4. returns form to court

2. court enters default judgment without consideration of merit (no hearing)

The 2 available types of default judgment in money claims

1. final judgment - D must pay set amount within 14 days

2. interlocutory judgment - damages to be decided by court

   1. effect: liability established, quantum to be determined

   2. claims for unspecified amount

   3. deciding damages

   • court gives directions after judgment

   • may:

     1. allocate claim to a track (only multi if genuine, substantial dispute)

     2. stay for ADR

     3. list matter for a disposal hearing

     • if claim <10k allocate to small claims track and decide amount immediately

     • if claim >10k

       • normal costs rules apply

       • evidence may be adduced - must serve at least 3 clear days before hearing

       1. list matter for hearing to assess damages

     • = a trial - trial bundles and formal evidence required

     • generally heard by master OR DJ (court may specify otherwise)

APPLYING FOR DEFAULT JUDGMENT - non-money claims

• must apply if:

1. claim form served out of jurisdiction without permission

2. D is child or PP (D must apply for litigation friend first)

3. claim includes costs other than fixed costs

4. tort claim by one spouse against another

5. claim seeks delivery-up of goods where D not allowed alterative of paying value

6. D seeks some other remedy than an indemnity / contribution against a third party in an additional claim

Procedure

1. issue application notice AND include written evidence + certificate of service of PoC

2. serve D with application notice (only serve evidence if D filed AoS)

3. if D files AoS OR defence just before return day to prevent default judgment, D must also issue cross application to extend time for serving AoS / defence

SETTING ASIDE DEFAULT JUDGMENT

• court must set aside - if default judgment wrongly entered e.g. D applied for SJ first

• court may set aside if:

1. D has a real prospect of successfully defending the claim, considering:

1. delay in making application (NOT pre-action)

2. prejudice to C

----OR----

2. some other good reason to set aside OR D should be allowed to defend claim

1. D did not in fact receive proceedings (discretionary, as deemed date irrebuttable)

2. C's conduct unreasonable

3. C fails in non-delegable obligation to apply promptly

4. possibly failure to include response pack

• court can set aside on conditions:

1. wasted costs order against D

2. order D...