JUDGEMENT IN DEFAULT
If no Defence is filed within the 14 days then the Claimant can apply for Judgement in Default. This is an application that is made where the Defendant has not filed at court a Defence or an Acknowledgement of Service. This is an application to ask the court to make an order that states that the Claimant has won the case.The notice which the court sends to the Claimant to confirm issue and service of the Claim gives the date upon which the Defendant is deemed to have received the paper and the periods of 14 and 28 days referred to above run from that date.
The form also contains a section that the Claimant can complete in order to request judgment by default. For a specified sum the Claimant should include a request for interest up to the date of judgment using the daily rate from the date of issue of proceedings to calculate the figure due.
If the claim is for an unspecified amount the Claimant will need to ask for judgment with the amount to be decided by the court. The court will send a judgment and an allocation questionnaire to cover the procedural steps of getting the case to a hearing for the assessment of damages.
SETTING ASIDE THE DEFAULT JUDGEMENT
Occasionally mistakes happen. A defendant may not get his defence in on time for a perfectly innocent and genuine reason. He may have been away on holiday at the time when the claim arrived at his address. He may have been ill. He may have posted the acknowledgment or a defence to the court that has gone astray in the post or even in the court office. If the Claimant obtains a default judgment it is always open to the defendant to apply to set it aside and the defendant is always entitled to make an application to set aside under part 13 of the Civil Procedure Rules.If the judgment was wrongly entered because the Claimant got the procedure wrong the court must set it aside. The Claimant should therefore agree to the setting aside and agree to write to the court confirming agreement.
If the judgment was not wrongly entered the court will only set it aside if the defendant has a real prospect of successfully defending the claim OR if the court thinks that there is some other good reason why the judgment should be set aside or varied and the defendant should be allowed to defend the claim. The court must look at all of the circumstances including how quickly the defendant applied after becoming aware of the judgment.
As a rule of thumb it is worth consenting to a setting aside if:
- The application is made within a week or so of the judgment being sent out by the court.
- There is a reasonable defence shown in the defendant's application or any letter which he writes to the Claimant asking to set judgment aside.
- The Claimant thinks that the defendant is telling the truth about the circumstances in which he missed the deadline for doing something about the claim.
