Default judgment

Default judgment is a judgment without trial. Judgment in default is invariably obtained by an administrative failing by the defendant rather than by judicial determination. A defendant who fails to file an acknowledgement of service or defence within the prescribed time limits is liable to have a default judgment entered against them.

The period for filing an acknowledgement for service is prescribed by Rule 10.3 of the Civil Procedure Rules 1998 (“CPR”) as 14 days after service of the claim form (or particulars of claim if served later). The period for filing a defence is prescribed by Rule 15.4 of the CPR as 14 days after service of the particulars of claim or 28 days if the defendant has not filed an acknowledgement of service under Part 10 of the CPR. If the defendant fails to do either of these things then the claimant may, subject to the provisions of the CPR, enter a default judgment against the defendant. There are separate provisions where a claim form has been served out of the jurisdiction.

A claimant may either make an application for default judgment or a request if this is permitted by the CPR. However, default judgment is not available in all cases as the CPR prohibits obtaining default judgment on certain types of claim.

Setting aside a default judgment

Mandatory grounds: Where a defendant can demonstrate that a judgment in default has been wrongly entered under one of the three situations specified in Rule 13.2 of the CPR, then the court must set aside the judgment.

Permissive grounds: The court also has a discretionary jurisdiction under Rule 13.3 of the CPR to set aside default judgments in cases where the defendant has a real prospect of successfully defending the claim or it appears to the court that there is some other reason why the default judgment should be set aside or the defendant should be permitted to defend the claim. When exercising its discretion, the court must act in accordance with the overriding objective, which requires cases to be dealt with justly and at proportionate cost.

Defendants must act promptly to set aside default judgments. Notwithstanding the court’s consideration of delay when acting under their discretionary authority, a default judgment can be enforced in the usual way and the claimant is entitled to commence enforcement proceedings if no action is taken by the defendant.