What is Default Judgment?
Default judgment is a final form of order to end proceedings.
It has the same status as summary judgment and judgment made after the trial: it’s a judgment of a court.
It’s a judgment entered because the defendant did not do anything about the claim when it was served with it.
When claims are left undefended, it is this procedure that it most often adopted to obtain judgment for money claims.
Orders of Default Judgment are obtained in two different ways:
- by using an administrative process – a Request - judgment is entered by a court officer; or
- by filing an application for Judgment in Default.
Both forms of default judgment have equal status.
Obtaining default judgment using the administrative process is quick and easy.
However, not all money judgments can be obtained with a request.
When is Default Judgment Entered?
When a party is sued, everything runs to a clock of fixed time periods, which start when an event takes place.
The Civil Procedure Rules fix the amount of time defendants have to respond when the claim form is served.
A clock starts.
Courts operate to fixed timetables, unless applications are made to extend time.
After the Claim Form is issued by the court, either the Court or the claimant party will serve it on the defendants.
If the Court serves the Claim Form it usually issues a Notice of Issue. It sets out a series of dates:
- when the claim form was issued
- when the court sent it to the defendant
- when the claim form is deemed to be served
When the court serves the claim form for the claimant, it will include copies of:
- the Particulars of Claim, if filed by the claimant; and
- a Response Pack.
Service of Particulars of Claim
The claim form contains space on the second page for the claimant to set out the Particulars of Claim. More often than not, it’s too short. Parties prepare the Particulars of Claim as a separate document to the claim form.
When they are, the Particulars of Claim, the must be served:
- with the claim form, or
- or within 14 days of service of the Claim Form.
Service of Response Pack
Also, a Response Pack must be served with the claim form.
It contains 3 standard form documents. They are:
- Acknowledgment of Service
- Defence and Counterclaim
One form is used when the claim form specifies the amount claimed (Form N9B).
Another where the claim form does not specify the amount or a money claim is not made at all (Form N9D).
- Admission Form
Service of Claim Forms
Courts place particular emphasis on service.
This is especially the case with the Claim Form and the other documents which must be served with it.
That’s because courts need to be confident that the defendant has received the documents.
And the measure and method for that confidence are the court's rules on service.
Time starts to run for the defendant to file its Defence once:
- the Claim Form,
- Particulars of Claim and
- Response Pack,
have been served (in the technical sense).
The claimant shows that the documents have been served with a Certificate of Service. When the claimant serves the claim form, it must be filed within 21 days of service of the claim form.
Commencement of Time
Within the UK
The Defendant has 14 days to file an Acknowledgement of Service or a defence from the time they are served within the UK.
Provided that the Acknowledgement of Service has been filed, the defendant has a further 14 days to serve:
- a Defence, or
- a Counterclaim, which is usually contained in the same document as the Defence, or
- an admission of liability.
When the Acknowledgement of Service is not filed, the Defence must be filed within the initial 14 day period.
Filing an Acknowledgement of Service effectively buys another 14 days to file a defence.
Outside the UK
When a defendant is served outside the UK, different time periods apply for filing an acknowledgment of service, defence and counterclaim, or an admission. Those time periods are set by the Practice Direction to Part 6 of the Civil Procedure Rules, at paragraph 7.2.
- 14 days is still allowed for filing of the Acknowledgement of Service, and
- if an Acknowledgment of Service is filed, the defendant is permitted at least a further 21 days, and in some cases over 30 days to file a Defence
These default timings may be altered by agreement between the parties or by an Order of the Court. If the parties can’t agree, and application notice must be filed to apply for an extension.
Extensions of Time
There is rarely a good excuse to not file an Acknowledgment of Service in time. When the defendant is outside the jurisdiction of English Courts, and wants to contest jurisdiction, it must act quickly if it wishes to do so.
It can be a different matter with a Defence.
In complex cases, 28 days (14 days for the Acknowledgment of Service + 14 days for the Defence) can be too short. There’s not enough time to prepare everything that needs to be done to file the defence.
Defendants in this position usually request an extension of time and with it a Counterclaim, of up to a few weeks.
If the claimant party refuses to agree the extension of time:
- an application can be made to the Court for an extension, giving reasons for the request for the extension, and
- if the claimant unreasonably refuses to agree to a (reasonable) extension of time, the claimant is likely to be ordered to pay the costs of the application, if the defendant proceeds with the application.
Additional time to file and serve an Acknowledgement of Service and Defence may also be applied for when the defendant is outside the UK.
It frequently is.
Filing for Default Judgment
When the allotted time to file the Acknowledgement of Service or Defence has expired, the claimant is entitled to file for default judgment.
Default judgment is not available in a series of cases, including where:
- the defendant has filed an application for:
- the claim is for the delivery of goods under the Consumer Credit Act 1974
- the claim is a Part 8 Claim, as opposed to a Part 7 Claim.
Most claims in the English Court system are Part 7 Claims. Part 8 Claims are by contrast rarely used, as they require an agreed set of facts between the parties.
- the amount of the claim has been paid, or
- the defendant has filed an admission with a request for time to pay.
Judgement By Request
A request for default judgment is in the form of a request. It’s a standard form. It’s not a difficult process.
The Request is processed by the Court Registry.
The Registry relies upon a valid certificate of service and the accuracy of the date of service entered on the certificate.
Application for default judgment by request does not engage any judicial analysis of the legal merits of the claim. It includes all claims purely for damages. It’s an administrative exercise.
The form used to make the Request is:
- Form 205A or N225: are used for requests where the amount claimed in the claim form has been specified. Judgment is entered for the amount of money claimed and fixed costs, and interest, if interest was claimed in the claim form.
Default judgment is entered without a hearing.
- Form N205B or N227, where the amount is not specified in the claim form.
The Court fixes what is known as a disposal hearing to fix the amount of the judgment and any other outstanding matters.
The Court Forms allow the claimant to request:
- payment of specific sum of money claimed,
- delivery of goods claimed,
- payment of the value of the goods, and
- fixed costs under Part 45 of the Civil Procedure Rules.
The process of obtaining default judgment is usually a relatively straightforward exercise.
Fill in a form, send it to the court, and wait to hear back.
It gets that easy, because the defendant didn’t respond to the claim.
That’s what the Response Pack is for: it tells the defendant what they need to do.
When the response pack is not served with the claim form, it can get in the way of a judgment in default, because it may be sufficient to set it aside.
Obtaining default judgment allows the claim to move onto enforcement of the judgment.
Judgment By Application Notice
When a request is not available, an application is required (Form N244) to be made.
- the claimant wishes to obtain an injunction, specific performance or possession of land.
The remedy can be abandoned and still use the Request Form, by making it clear that the remedy is abandoned.
- the judgment is for anything other than a sum of money or delivery of goods.
Why the difference with a request?
It’s the remedies sought by the claimant that prompts an application under the CPR.
Where the remedies require supervision by a court, an application is required.
It serves as a stop-gap to prevent abuse of process of courts and:
- an administrative process is not an appropriate approach. Judicial supervision is required, rather than a court officer processing pieces of paper
- the terms of an injunction are likely to need to be tailored before it is issued
- a court maintains overriding discretion to grant injunctions and specific performance
- when proceedings are served out of the jurisdiction, the court will want to ensure that the requirements of service were complied with.
It is in those respects that it must appear to the court either that the applicant is entitled to the default judgment sought, or to some lesser or different default judgment.
Default Judgment: Two Defendants
When multiple defendants are sued, default judgment is able to be obtained against a single defendant.
The claim proceeds against the other defendants which have filed a defence. However, the claimant will not be entitled to proceed against the other defendants where an “unequivocal election” is made to abandon the claim against the other defendants.
The other defendants may defend the claim as they wish:
- They are not tied to the terms of the default judgment against the other (ie default judgment) defendant(s).
- The defendant can advance any defence wants to, even if it is inconsistent with the terms of the default judgment.
If however the default judgment defendant satisfies the judgment as claimed by the claimant, the claimant is barred from proceeding again the remaining defendant.
The reason is simple: the claimant has recovered the full value of its claim, and can’t recover it again from another person.
Difference between Summary Judgment and Default Judgment
The difference between default judgment and other types of judgment is that default judgment is not a judgment on the merits or strengths of the case.
Default judgment does not call for any assessment of the merits of the case.
Summary judgment requires an assessment of a case on the merits: whether the case is bound to fail - or in other words - cannot succeed. Conversely, the court is not called upon to address the strength of the case in a summary judgment application.
That is the price that the defendant pays for not filing a defence.
Getting default judgment of a County Court Judgment – aka a CCJ - or High Court is one thing. Holding on to it can be quite another if:
- the claim form has not been served properly, or
- any of the other grounds have been satisfied to set it aside.
In some cases, it is mandatory to set it aside.