Part 12 of the CPR allows Claimants to obtain judgment in cases where defendants fail to respond. This is commonly used as a method where defendants simply ignore that a case is proceeding against them. It operates to make sure that such cases can be resolved quickly and with minimal use of Court time. In order to succeed the Claimant must satisfy the Court that the particulars of claim have been served in the defendant and the defendant has failed to file an acknowledgement of service or a defence within the specified time period.
CPR 12.1 states that ‘default judgments’ means a judgment where a defendant has failed to file an acknowledgment of service or file a defence.
CPR 12.3 states that the claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered–
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.
(2) Judgment in default of defence may be obtained only –
(a) where an acknowledgement of service has been filed but at the date on which judgment is entered a defence has not been filed;
(b) in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed,
and, in either case, the relevant time limit for doing so has expired.
CPR 12.5 provides for different types of default judgment to be obtained. If the Claimant is applying for default judgement for a specified sum the Claimant must indicate the date that the payment was due, calculate an up to date total for the interest claimed and state a daily rate at which interest accrues. This will enable the Court to enter an accurate figure for the sum outstanding depending on the day it considers the application.
Setting aside or varying default Judgment
Part 13 provides the Court with the power to set aside or vary a judgment entered in default. Paragraph 13.2 provides that the judgment must be set aside if judgment was wrongly entered because (a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied; (b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or (c) the whole of the claim was satisfied before judgment was entered.
In other words, if the Judgment in default was entered by mistake then it must be set aside.
The Court also has a discretion to set aside default Judgment where the defendant has a ‘real prospect’ of defending the claim; or where there is some good reason why the defendant should be allowed to defend the claim.
The first of these two approaches invites the Court to consider the merits of the case. The second invites the Court to consider any reason that the defendant may want to argue about why he ought to be able to defend the claim. Of course, in making an application to set aside default Judgement, the defendant could argue either or both of these reasons.
An application to set aside default judgment is made using a form N244. The Court could (1) set the judgment aside and allow the case to continue (2) refuse the application and keep the judgment in place or (3) make a conditional order whereby the case will be reinstated if certain conditions are met.