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Default Judgment and applications to set aside
CPR Part 12, Default Judgment [[with PD 12 1-5]]?Meaning of "default judgment" =a judgment without a trial, where a D has failed to file either:
o (1) an A/S
o OR (2) a defence
-[[PD 12: for this purpose, a defence includes any document purporting to be a defence]]
Claims where C may NOT obtain a default judgment (12.2):
o (a) a claim for delivery of goods subject to an agreement regulated by
Consumer Credit Act 1974;
o (b) where he uses Part 8 Procedure;
o (c) any other case where a PD/other rules provides that cannot obtain default judgment.
-Egs, PD 12, 1.3:
-(1) admiralty proceedings
-(2) arbitration proceedings
-(3) contentious probate proceedings
-(4) claims for provisional damages
-(5) possession claims.
o (e) ? where CPR12.3(3) applies below, i.e.:
12.3, (3) C may not obtain default judgment IF:
o (a) D has applied for:
-(i) strike out of C's statement of claim (r3.4)
-OR (ii) for summary judgment (Part 24)
-[AND, in either case, that application has not been disposed of]
o (b) the D has satisfied the whole claim (including any claim for costs);
o (c) [[where D (i) admits a money claim AND (ii) asks for time to pay]]:
-(i) the C is seeking judgment on a claim for money; AND
-(ii) the D has filed or served on C an admission under rule 14.4 or 14.7
(admission of liability to pay all the money claimed) WITH a request for time to pay;
o (d) notice has been given under r82.21 of a person's intention to make an application for a declaration under s6 Justice & Security Act 2013, and that application has not been disposed of.
Conditions to be satisfied for default judgment (CPR 12.3)
-(1) C may obtain default judgment in default of an A/S (i.e. no A/S OR defence) only if:
o (a) the D has not filed an A/S OR defence (to the claim or any part of it)
o AND (b) the relevant time for doing so has expired.
-(2) judgment in default of defence (i.e. A/S file but no defence), may be obtained only if:
(a) where an A/S has been filed but a defence has not;
(b) in a counterclaim made under r20.3, where a defence has not been filed,
AND, in either case, the relevant time limit has expired.
[[NB: under r20.4(3), Part 10 [A/S] does not apply to a counterclaim]]
Procedure for obtaining default judgment (12.4)
-TWO FORMS of seeking default judgment: (1) by filing a request; (2) by application to the Court
-(1) (subject to below) C may obtain default judgment by filing a request in the relevant practice form where the claim is for:
o (a) a specified amount of money;
o (b) an amount of money to be decided by court;
o (c) delivery of goods where the claim form gives D the alternative of paying their value;
o OR (d) any combination of these remedies.
o [[NB: if claim is for costs only: if costs other than fixed costs, must make an application for summary judgment; CF if claim is for fixed costs ? can file a request for summary judgment]]:
-(2) Situations where C seeking default judgment MUST make an application to court in accordance with Part 23
(a) on a claim which consists of or includes any other remedy (not above) in
o or (b) where provided by rule 12.9 or 12.10 [default judgment obtained by making an application, see below, eg:
-costs only other than fixed costs
-claim in tort by spouse against spouse/civil partner;
-out of jurisdiction;
-against a state;
And, where D is an individual: C must provide the D's DOB (if known) in Part
C of the application notice.
-(3) Where a C claims any other remedy in claim form in addition to those in (1);
BUT abandons that claim in his request for judgment ? he may obtain default judgment by filing a request under (1) in the practice form.
-(4) In civil proceedings against the CROWN, a request for a default judgment must be considered by a Master or District Judge, who must in particular be satisfied that the claim form and PoC have been properly served on the Crown in accordance with s18 Crown Proceedings Act 1947 and r6.10.
(1) Default judgement by filing a request
Nature of judgment where default judgment obtained by failing a request [[12.5]]
-(1) where claim is for a specified amount of money, C may specify in a request filed under 12.4(1):
o (a) the date by which whole judgment debt is to be paid; OR ??
o (b) the times & rate at which it is to be paid by instalments.
(2) except where para 4 (claim for delivery of goods/alternative value), default judgment on a claim for specified amount of money obtained on filing of a request,
will be judgment for:
o (i) the amount of the claim (less any payments made)
o AND (ii) costs:
-(a) to be paid by the date or at the rate specified in the request for judgment; or
-(b) if none specified, immediately.
o Interest may be included in a default judgment by filing a request if conditions in r12.6 are satisfied
(3) where claim is for unspecified amount of money, a default judgment will be for:
o (1) an amount decided by the court AND
o (2) costs.
(4) where claim is for delivery of goods & claim form gives D alternative of paying their value, a default judgment obtain on filing of a request will be judgment requiring D to:
o (a) deliver the goods OR pay the value of the goods as decided by the court
(less any payments made); AND
o (b) pay costs.
o [[C's right to enter judgment requiring D to deliver goods, is subject to r40.14
(judgment in favour of certain part owners relating to detention of goods)]].
Forms required for default judgment by request (PD 12, 3.1):
-For a claim for a specified amount of money/or delivery of goods where D is given alternative of paying a specified sum; OR for fixed costs only: ? must be in Form
N205A or N225.
-For a claim where an amount of money (including an amount represent value of goods) is to be decided by court, must be in form N205B or N227.
-The forms require C to provide the DoB (if known) of the Defendant , where D is an individual.
County Court Money claims (r12.5A)
-If C files a request for judgment in County Court, which includes an amount of money to be decided by the court ? claim will be sent to the preferred hearing centre.
-If claim is sent to preferred hearing centre, any further correspondence should be sent to, and any further requests made at, that hearing centre.
-(1) A default judgment on a claim for a specified amount of money, obtained on the filing of a request (CF obtained by application to court) ? may include the amount of interest claimed to the date of judgment, IF:
o (a) the PoC include the details required by r16.4
-i.e. details required:
-states that is claiming interest;
-whether under terms of a contract/enactment; some other basis; if for specified amount: the % rate claimed and date from which claimed and to which calculated; total amount claimed; daily rate after that date]]
o (b) where interest is claimed under s35A SCA 1981 or s69 County Courts Act 1984 ? the rate is no higher than judgment debts rate of interest at date when claim form issued;
o (c) the C's request for judgment includes a calculation of interest claimed for period from the date up to which interest was stated to be calculated in claim form, to the date of request judgment.
(2) In any case where para (1) does not apply (i.e. not a claim for a specified amount) ? judgment will be for an amount of interest to be decided by the court -
see rule 12.7.?
Claim against one of 2+ Defendants (12.8)
-(1) C may:
o obtain a default J on request, on a claim for money or a claim for delivery of goods, against one of 2+ Defendants
AND proceed with his claim against the other defendants.
-(2) Where C applies for default j against one of 2+ Defendants:
o (a)if the claim can be dealt with separately from claim against other Ds:
-(i) court can enter a default judgment against that D;
-AND (ii) C can continue the proceedings against the other D(s).
o (b) If the claim cannot be dealt with separately:
-(i) court will not enter default judgment;
-and (ii) court must deal with the application at the same time it disposes of the claim against the other D's.
-(3) A C may not enforce against one of two+ Defendants any default judgment for possession of land or for delivery of goods, UNLESS:
o (a) he has obtained a judgment for possession/delivery (whether or not under this Part) against all the defendants to the claim;
o OR (b) the court gives permission.
(2) Default judgement by application to the Court (12.10)?C MUST make an application for default judgment (i.e. can't file a request) WHERE:
(a) under r12.4, where a claim consists of or includes any other remedy other than:
((1) specified amount of money; (2) amount of money to be decided by court; or (3)
delivery of goods where D can alternatively pay their value)
(a) the claim is:
o (i) against a child/protected party
-For an application against a child/protected party (PD 12, 4.2):
-(1) a litigation friend must be appointed by court before judgment can be obtained; and
-(2) the C must satisfy the court, by evidence, that he is entitled to the judgment claimed.
o or (ii) a claim in tort by one spouse/civil partner against another;
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