What is judgement in default?
Where the defendant does not intend to contest the proceedings, it would be a waste of time and money, and very hard on the claimant, to proceed as if the claim were defended. Therefore, CPR (Civil Procedure Rule), Part 12, allows a claimant to obtain early judgement against a defendant who fails to defend the claim. Usually, this does not even involve a hearing. In such cases, obtaining judgement is a purely administrative act, which is one refers to it as ‘entering’ judgement.
What Constitutes default?
A defendant who has been served with the particulars of claim has 14 days to make a response to a claim. Consequently, a defendant cannot be in default until that time has elapsed. A defendant cannot be in default if a claim form is served without particulars of claim.
The CPR, r 12.3, allows a claimant to enter a default judgment in the following circumstances:
- If the defendant has not filed an acknowledgment of service or a defence to the claim and 14 days has expired since service of the particulars of claim; or
- If the defendant has filed an acknowledgement of service but has not filed a defence, and 28 days has expired since service of the particulars of claim.
Default judgments are not available in a number of cases even if the defendant fails to respond to the claim. Excluded cases fall into two categories. In the first, the nature of the proceedings is a bar to obtaining a default judgement, and in the second some step taken by the defendant prevents the claimant entering judgement in default.
Entering default judgment
In claims seeking to recover money and/or the delivery of goods, which are by far the most common types of cases default judgements are available simply by filling a standard form request.
By applying for judgment in default
Default judgments in non-money and non-recovery of goods claims have to be applied for. In other words, where equitable relief is sought and the defendant does not defend the claim, a judgement can only be obtained at a hearing before a District Judge or judge who will decide whether to exercise the court’s discretion to grant the relief sought.
Final judgment and judgment for an amount to be decided
There are two main types of judgment obtainable in money claims. The best type is a final judgment, which will require the defendant to pay a set amount of money usually within 14 days.
The other type is a judgment for damages to be decided by the court.
Final judgment will be entered in claims for specified sums, whereas judgement for damages to be decided will be entered in claims for unspecified amounts.
Setting aside default judgment
Because in most cases entering default judgment is an administrative process, there is no investigation of the merits of the claim. The court, therefore retains wide powers to set aside or vary any such judgement. The court may exercise the power to set aside a judgement on an application by the defendant or of its own motion.
Stay of undefended cases
If none of the defendants files an admission or defence, the claimant should generally enter judgment in default shortly after the time for doing so has elapsed, but in any event within six months of the period for filling the defence. Once the six months has elapsed, the claim is automatically stayed by virtue of CPR, r 15.11. Any party may apply to lift the stay