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#10173 - Default Judgments - Civil Litigation

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CPR Rules (Part 6) Service P72

Under r.6.3 and 6.14 and 6.26 following methods of service are permitted :

Method of Service (r.6.3) P78

Deemed

Served Claim Form

(r 6.14)

P75

 Deemed Date of Service other docs(r.6.26) P78
First class post & Document exchange The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day. If not, the next business day after that day.
Delivering it to or leaving it at a permitted address 2 business days regardless of method If it is delivered to or left at the permitted address on a business day before 4:30pm, it is deemed to be served on that day. If not, on the next business day after that day.

Fax /

E-mail /

Personal service

 If it is transmitted on a business day before 4:30pm, it is deemed to be served on that day. If not, on the next business day after that day on which it was transmitted.

P79 What if a claim form is served marked ‘particulars of claim to follow’. When must the particulars of claim be served? PD 7A, para 6.1 provides the following answer:

Where the C does not include the PoC in the CF they may be served separately:

(1) either at the same time as the claim form CF, or

(2) within 14 days after service of the claim form provided that the service of the particulars of claim is within 4 months after the date of issue of the claim form.

CPR (Part 10) Acknowledgement of Service

P83

  • After being served with the particulars of claim D may r 10.3:

Acknowledge service (in order to have more time to file defence)

  1. where D is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim + 1 day of service ; and

  2. in any other case, 14 days after service of the claim form. + 1 day of service

Calculate 15 days in total as the day of deemed served is not included.

CPR (Part 15) The Defence

P84

Part 15(4) states that the general rule is that the period for filing a defence is:

  1. 14 days after service of the particulars of claim: or

  2. If the defendant files an acknowledgement of service under Part 10, 28 days after service of the particulars of claim

The time for filing a defence may be extended by agreement between the parties for a period of up to 28 days and give the court written notice r.15.5. Any further extensions only authorised by the court

Calculate 1 day extra as the day of deemed served is not included.

Entering Judgment by default

P87

Once the proceedings have been served upon the defendant, it may be that the defendant

takes no action. The defendant may fail to return the acknowledgement of service or file a

defence. In those circumstances, the claimant can obtain judgment in default against the

defendant. This means that the claimant obtains judgment without there being a trial of the

issues involved in the case. (See Default Judgment Table)

Default Judgement (Part 12) P87 and Setting it Aside

C may not enter a default judgment in:

  • A claim for delivery of goods

  • A Part 8 claim (for resolving claims that do not involve a substantial dispute of fact, e.g. decide the construction of a contract)

  • A mortgage claim

  • A claim for provisional damages

  • A claim in a specialised court

Claimant’s Procedure to request judgment by default

P88

C will have to fill in a form (N227 “Request of Judgement by Default”) and satisfy the court that:

  1. The Particulars of Claim have been served on D

  2. The D has not acknowledged service/filed defence in time

  3. The D has not satisfied the claim

  4. The D has no admitted liability for the full amount

… interest is calculated at the daily rate
Setting Aside Judgement by Default (Part 13) P148

Mandatory Grounds for Setting Aside

r.13.2

The court must set aside the default judgment if:

  1. The D has satisfied the whole claim (paid up in full) (i.e. conditions in r.12.3(1) were not satisfied)

  2. It was wrongly entered into (i.e. conditions in r.12.3(3) were not satisfied)

Discretionary Grounds for Setting Aside

r.13.3(1)

The court may set aside or vary a default judgment where:

  1. D has a real prospect of defending the claim (r.13.3(1)(a)); or

  2. There is some other good reason why (r.13.3(1)(b)) :

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

  2. the defendant should be allowed to defend the claim.
Defendant’s Procedure to request judgement by default be set aside

  • D must fill in form N244 “Application Notice”

  • If relevant include witness statements to support why late application

  • D must attach a “Draft Order” (PD 23.A)

  • Attach form N260 “Statement of Costs for Summary Assessment”

  • Pay relevant court fees

  • D must serve C at least 3 days before the court is to deal with the application to set aside judgement by default (CPR Rule 23.7(1)(b)) (Refers to EU stuff)
Courts will take into account…

  • if D seeking to set aside judgment made an application to do so promptly(r.13.3(2))

  • When submitting an application to set aside, you should attach a draft defence to show the outline of your basis of claim

  • Any evidence to show why they didn’t respond to the C

  • If application is late then apply Article 19(4) of the Service Regulation (which has the same meaning as in rule 6.31(e))
Costs
IF Court Has Set Aside Judgement by Default then D will have a new opportunity to fill in the reply to the claim form, make an offer of payment or put in any defence or counterclaim

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