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#16826 - Default Judgment - Civil Litigation

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DEFAULT JUDGMENT

Procedure for Obtaining Default Judgment
CPR 12.3

  1. The claimant may obtain judgment in default of an acknowledgment of service only if –

  1. the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

  2. the relevant time for doing so has expired.

  1. Judgment in default of defence may be obtained only –

  1. where an acknowledgement of service has been filed but a defence has not been filed;

  2. in a counterclaim made under rule 20.4, where a defence has not been filed,

and, in either case, the relevant time limit for doing so has expired.
CPR 12.4(1)&(3) A default judgment may be sought by by filing a request, or
Form N225 If the claim is for a specific amount of money or for delivery up where the defendant is given the alternative of paying a specific amount.
Form N227 If the claim is for a sum of money to bedeterminedby the court.
CPR 12.4(2) By an application to the Court
Form N224 Notice of applicationmustbe given to the defendant as soon as practicable after it is filed or at least three clear days before the hearing, unless the defendant has failed to lodge an acknowledgement of service.
Setting Aside Default Judgment
CPR 13.2 If a judgment indefaulthas been "wrongly entered" the court must set it aside.
CPR 13.3

  1. In any other case, the court may set aside or vary a judgment entered under Part 12 if –

  1. the defendant has a real prospect of successfully defending the claim; or

  2. it appears to the court that there is some other good reason why –

  1. the judgment should be set aside or varied; or

  2. the defendant should be allowed to defend the claim.

  1. In considering whether to set asideor vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
CPR 13.4

  1. Where –

  1. the claim is for a specified amount of money;

  2. the judgment was obtained in a court which is not the defendant’s home court;

  3. the claim has not been transferred or, in the County Court, sent to another defendant’s home court; and

  4. the defendant is an individual; and

in the High Court the court will transfer, or, in the County Court, the court officer will send, an application by a defendant under this Part to set asideor vary judgment to the defendant’s home court.
CPR 23.6 & 23.7 To set aside adefaultjudgment, the claimant must make an application to court. The application notice should state the grounds for applying to set aside and whether the application is made underCPR 13.2 orCPR 13.3, or both. A draft of the orderrequestedshould be attached to the application form. If the application is under CPR 13.3, itmustbe supported by evidence establishing the factual basis for the application.
CPR 23.7(1) Theapplicationnotice, draft order, and evidence in support must be served on the claimant at least three clear days before the court is to deal with the application.

Legal Test

CPR 12.3

  1. The claimant may obtain judgment in default of an acknowledgment of service only if –

  1. the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

  2. the relevant time for doing so has expired.

  1. Judgment in default of defence may be obtained only –

  1. where an acknowledgement of service has been filed but a defence has not been filed;

  2. in a counterclaim made under rule 20.4, where a defence has not been filed,

and, in either case, the relevant time limit for doing so has expired.
CPR 13.3

  1. In any other case, the court may set aside or vary a judgment entered under Part 12 if –

  1. the defendant has a real prospect of successfully defending the claim; or

  2. it appears to the court that there is some other good reason why –

  1. the judgment should be set aside or varied; or

  2. the defendant should be allowed to defend the claim.

  1. In considering whether to set asideor vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
CPR 1.1(1) Court’s discretion should be exercised with regard to the overriding objective of ‘enabling the court to deal with cases justly and at proportionate cost’.
CPR 1.1(2)(a) This includes ensuring cases are dealt with fairly.
International Finance Corporation v Utexafrica Sprl ‘Real’ prospect means better than merely arguable.
Blakemores LDP v Scott

The 3-stage approach in Denton v TH White Ltd should be followed on an application to set aside judgment under CPR 13.3:

  1. The court should identify and assess the seriousness and significance of the breach.

  2. Consider why the default occurred.

  3. Consider all the circumstances of the case including CPR 3.9(1)(a) and (b); the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with the Rules.
ED and F Man Liquid Products Ltd v Patel The burden of proof is on the defendant to show his...
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