A claimant brings a claim. A defendant defends a claim. This subject is time-sensitive. You must act promptly to do something about, it or you may forgo your right to do so through passage of time.
This blogpost is aimed at the uninitiated who have never been involved in the court legal system of England and Wales. It can be a very daunting and frustrating experience if you do not seek legal advice.
I hope that this assists people to understand this procedure. How it starts, how it is avoided, and what to do if you receive a default judgment.
The law and procedure cited in this blogpost are accurate at the time of publication, but are subject to change as the Civil Procedure Rules 1998 (‘CPR’), are amended, or case law brings new interpretation to understanding those rules.
1. What is a court judgment?
There are five ways in which judgment can be obtained by a claimant against a defendant namely: (a) A default judgment (the subject of the blogpost below); (b) a default judgment where damages are assessed by a Judge at a separate hearing; (c) summary judgment (where the court consider that a defendant has no real prospect of successfully defending a claim, or where a claimant has no real prospect of successfully bringing a claim); (d) a Judgment following a decision by a Judge, due process having been followed, and a trial having taken place, the evidence having been considered, whether parties attend the trial or not; (e) a Judgment or ruling, following a default of a court direction, a defence having been struck out, or a claim having been struck out by way of a sanction for failing to follow a court direction by a specific time.
2. What is a default judgment?
A default judgment is a judgment ordered by either a County Court or the High Court of Justice, in civil and commercial claims, where a defendant fails to file either an acknowledgment of service, or fails to file a defence by a certain date.
It is a judgment without a judicial decision having been made.
It is a judgment ordered without a trial.
It is a judgment which is created administratively when a defendant in an action fails to file an acknowledgment of service or a defence.
3. What is an acknowledgment of service?
An acknowledgment of service is a form which you must complete within 14 days of the date of service of the court papers confirming whether a case brought against the defendant is admitted, partially admitted, defended, partially defended, or the jurisdiction of the case (the place in which the case has been brought), is disputed.
If you do not acknowledge service by filing the document entitled ‘Acknowledgment of Service’, within 14 days of the date of service upon you, the claimant is entitled to write to the court and request judgment in default.
4. What is a defence?
If you wish to defend part or all of a claim brought against you, you must file a defence within 28 days of the date of service upon you of a Claim Form and Particulars of Claim.
If you do not file a defence within 28 days of the date of service upon you of a Claim Form and Particulars of Claim, the claimant is entitled to write to the court and request judgment in default.
5. What is a claim form?
Court proceedings are started when the court issues a claim form. This form itself sets out the names and addresses of the Parties, and the amount claimed, together with a brief outline of the claim.
If a Claim form is served upon you, but not Particulars of Claim, you must still acknowledge the claim form within 14 days of the date of service upon you, but you do not need to file a defence until 14 days after service of the particulars of claim upon you. CPR Part 15.4(1)(a).
Particulars of Claim, broadly particularise the relationship between the parties, what went wrong, and what is claimed, and why it is claimed.
6. How did I find myself with a default judgment?
a. Pre-action protocols:
The usual process if someone claims money from you is to write to them. It is usual to receive a letter, but it could be a request by email, text, or social media communication.
Lord Wolf created in the development of CPR, pre-action protocols to follow. The aim was and remains to set out the case, and provide a ‘cards on the table approach’. It is intended that both parties in a dispute enter into dialogue with a view to narrowing issues between them, understanding each other’s arguments, and seeking to resolve matters amicably without resorting to court proceedings by way of alternative dispute resolution.
If you issue court proceedings without engaging in the CPR Pre-Action protocols, you may well be at risk of having legal costs awarded against you, even if you win. That is because, had you engaged in the process, the matter may have been resolved without further legal cost, timing, and aggravation, and the aim of CPR was ironically to not engage in cases but to settle. This is arguable, and the subject of another blogpost for another time that the CPR achieves what it was supposed to do.
Once the pre-action protocol is considered exhausted, or the time-limit by which to reply, has ended, you can proceed to issue court proceedings.
b. Receipt of the Claim form and Particulars of claim:
It is usual that the issuing court, serves the claim form and particulars of claim at the last known address of a defendant. The court timetable starts to run, not from the date of actual receipt, but the date of service which is usually the second day after it was posted, left with, delivered to or collected by the relevant service provider, provided that day is a business day, or if not, the next business day after that day, See CPR Part 6.26 (which sets out when service is deemed to have taken place depending on how the court papers are served), after having been posted, if served on a person by first class post.
If in doubt, you can check with the court and they will tell you what they consider to be the date of service. You start to count the days from that date.
c. You acknowledged service, but want to file a defence perhaps later than the 28 days?
You have to take action promptly either to contact the other side to agree an extension of time to file and serve a defence. You can ask for up to 28 days beyond the 28 days required to file and serve a defence, between the claimant and the defendant. If agreed, you must write to the court and let them know an extension of time has been agreed.
d. What do I practically need to do to set aside a default judgment?
If you did nothing, and you now receive the default judgment, you must apply to the court promptly using form N244 to set aside the default judgment, explaining why it was not done in time, AND you have to show that you have a reasonable prospect of successfully defending a claim brought against you, and/or some other reason why the court should grant what you desire having regard to all of the circumstances.
The court fee is currently £155 to make such an application. The form asks what you are applying for and why, and what you are asking the court to do. You can then explain why you want to set aside the default judgment, but you also have to show you have a reasonable prospect of successfully defending a claim. You do this either in the box provided in the form, or by way of a witness statement which requires you to set out your case, and to conclude with a statement of truth confirming that the facts contained in the statement are true. You have to sign and date that witness statement and it must be in your own words.
e. What if I do not take action promptly to set aside the default judgment?
What you need to do, and how you need to do it, are generally set out at CPR Part 13 entitled, ‘Setting aside or varying default judgment’.
The court must set aside a default judgment, if it can be shown that an acknowledgment of service or a defence were filed in time, or the whole of the claim was satisfied before judgment was entered CPR Part 13.2.
In any other case, CPR Part 13.3 applies:
‘13.3 (1) In any other case, the court may set aside or vary a judgment entered…if
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why
(i) the judgment should be set aside or varied, or
(ii) the defendant should be allowed to defend the claim’.
The court must have regard as to whether such an application was made promptly.
6. Making your application to set aside default judgment promptly: What is prompt?
The courts have set out what is not prompt as follows:
4.5 months was too great a delay to set aside judgment Harrison v Hocky  All ER (D)
13 days after the 14 days from the date of service to file an acknowledgment of service, was deemed too long Samara v MBI & Partners UK Limited  EWHC 563 (QB).
7. Change in court policy:
There has been a distinct change in court policy following implementation of Lord Justice Jackson’s reforms, and the courts are far stricter in implementing and upholding deadlines, and not granting relief from the sanctions of a default judgment without very good reason. Each case will be considered on its merits having regard to all the circumstances, but as a word to wise…Get on with it! Had you done what you were meant to do in the first place and filed what you needed to file within the appropriate time-limits, you would not be clogging up the court system, taking up the time of the court, spending your own time on a back-foot, and incurring legal costs against you for making such an application.
The court system breaks down/certainly slows down, when having to deal with such matters, then to have to consider un-doing what has been done and reconsidering a court timetable moving forwards.
Beware, that should you manage to set aside a default judgment, this negative mark against you, will remain in the court records, and any further breaches of the court timetable will be frowned upon. You will unlikely maintain the sympathy of the court.
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.
Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for Help4LiPs, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.
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