Joseph Meethan 5th July 2023
Default judgment is available when a defendant, having been properly served with a claim, fails to respond by serving either an acknowledgement of service or a defence. It can be very useful for bringing claims to a swift conclusion, but it is not available or suitable for all types of claim.
Our FAQS aim to answer all your questions about judgment in default so that you can obtain it, keep it, or set it aside with confidence.
Default judgment is only available in cases governed by Part 7 of the CPR. It is not available in Part 8.
Default judgment is available for cases where either an acknowledgement of service or a defence has not been filed in time, or, if an acknowledgement of service has been filed in time, a defence has not been served.
It is not normally suitable for cases where the remedy being claimed is a declaration of some sort and is not available in Part 8 claims; or claims for delivery of goods subject to the Consumer Credit Act 1974; or where the defendant has applied to have the claim struck out or for summary judgment on the claim; or where an admission has been filed along with a request for time to pay (CPR 12.2 and CPR 12.3(3)).
Normally, a defendant has 14 days from the date of service of the claim form to file an acknowledgement of service (CPR 10.3 (1) (a) and (b)). If the claim form states that the particulars are being served at a later date, then the date for service of the response (whether acknowledgement of service or defence) will be 14 days from service of the particulars (CPR 9.1(2)).
If an acknowledgement of service is filed, the time for the defendant to file the defence is extended to 28 days from the date of service of the particulars of claim (CPR 15.4(1)(b)). The parties can agree to extend the time for service of a defence by a further 28 days (CPR 15.5) but any further extension after that time will require the permission of the court.
The defendant can, of course, choose to simply file the defence within 14 days. It is not obligatory to file an acknowledgement of service.
If the claim is being served out of the jurisdiction, then different dates for acknowledging service/defending the claim will apply, and the claimant will need to amend the response pack to show the correct date. The relevant time limits are contained in a table at the end of the Practice Direction to CPR6.
The defendant will normally send the claimant a copy of the acknowledgement of service, but in any event the court is obliged to let the claimant know when an acknowledgment has been filed (CPR 10.4).
In the case of a defence, this must be served on the claimant or their solicitors by the defendant (CPR 15.6).
Once the relevant time has expired, if no response has been received, the claimant can make a request for judgment in default to be entered. The relevant forms are set out in CPR 12.4(1):
(a) If the claim is for a specified amount of money (Form N205A or N225);
(b) If the claim is for an amount of money to be decided by the court (Form N205B or N227);
(c) If the claim is for delivery of goods where the claim form gives the defendant the alternative of paying their value (Form N205A, N225).
There are circumstances where an application for default judgment has to be made in accordance with CPR 23 instead. These are set out in CPR 12.11 and include circumstances such as where a claim is against a child or protected party who needs to have a litigation friend in place, or where the proceedings have been served out of the jurisdiction.
The court will want to be satisfied that the defendant has not met the relevant time limit and so the claimant must file a certificate of service after service of the particulars of claim if they want to be able to apply for judgment in default (CPR 6.17). This should be filed within 7 days of service.
Where a claim is for a specified sum, then the claimant can enter judgment for that sum.
Where the claim is for an unspecified sum, then the claimant will request judgment to be entered for an amount to be decided by the court together with costs, and the case will then be listed for directions.
Where the claim is for delivery of goods, then the claimant will request judgment to be entered for delivery up of the goods or a payment for the value of the goods to be decided by the court together with costs, and the case will be listed for directions.
If the claimant has included a claim for interest in the particulars of claim (and that claim is compliant with CPR 16.4), then that can be included in the request for judgment (CPR 12.7).
The claimant must include a calculation of the amount of interest being claimed. This will normally be a straightforward calculation from the date up to which interest was calculated in the claim form up to the date of the request for judgment. If the claimant wishes to claim ongoing interest (to cover the period from the date of judgment to the date of payment) then this should also be stated.
If the claimant has not included a claim for interest in the particulars of claim then interest will be decided by the court in accordance with CPR 12.8. As this requires the court to list the matter for directions, there will be delay in enforcement, so it is worth making sure that the plea for interest in the particulars is done properly.
Costs will be awarded in accordance with CPR 45.2 and 45.4 in straightforward applications. This is made up of fixed commencement costs (which will depend on the value of the claim), costs for entering judgment, and the court fees.
Where the application for judgment in default is not straightforward for any reason (for example it is for liability only with quantum to be decided by the court), then the claimant should ask for costs to be determined as part of the proceedings.
It may be possible to obtain default judgment against one party and then continue with the claim against the others in accordance with CPR 12.9. It really depends on the facts of the case because 12.9 specifies that judgment in default can be entered against one party only if the case can be dealt with separately from the case against the other defendant(s).
A defendant can apply to have a default judgment set aside or varied in accordance with CPR 13.
The default judgment must be set aside if it should not have been made – i.e. before the deadlines for responding had passed, or where the defendant had paid before judgment was entered. It is important for claimants to be very clear about the date of service and to ensure that an application for judgment is not made prematurely. It is also vital to remember that the time limits before default judgment can be obtained run from the service of the particulars of claim: a failure to serve properly in accordance with CPR 6 will mean that any default judgment must be set aside.
A defendant might also be able to have the default judgment set aside in certain other circumstances – where the defendant has a real prospect of success, or there is some other good reason why the judgment should be set aside.
An application to set aside needs to be made in accordance with Part 23 and will usually require the defendant to explain why they did not respond to the claim in the first place (which may well include an argument about whether service had been properly effected) and to provide a draft defence.
An application to set aside judgment must be made promptly and this will be one of the factors which the court considers when deciding on the application – CPR 13.3(2).
Once a claimant has obtained judgment in default, then this should be sent to the defendant with a request to pay and if payment is not received, the claimant can progress to enforcement.
CPR 12 covers judgment in default and CPR 13 deals with applications to vary to set it aside.
If you need help with setting aside a default judgment, or defending a set aside application, please contact Joseph or Rob Johnstone.
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