10

Question 1

DEFAULT JUDGMENT

In undefended cases C can enter default judgment if:-

Answer 1

(a) D fails to file either an A/S or a Defence within 14 days of PoC.
(b) If D files an A/S admitting the claim
(c) If D files an A/S stating an intention to defend, but fails to file a Defence within 28 days of deemed date of service of the PoC.

Question 2

What is the procedure for DEFAULT JUDGMENT in money claims?

Answer 2

C enters default judgment by filing a REQUEST for judgment.

Question 3

What is the procedure for DEFAULT JUDGMENT in equitable relief?

Answer 3

abandons equitable relief + REQUESTS default judgment on any money claim.

Question 4

Money claim where default judgment requires an APPLICATION

In what situations?

Answer 4

1. Claims against children + protected persons
2. Tort claims by one spouse or civil partner against the other
3. CF served outside jurisdiction without permission

Question 5

A claimant can enter default judgment when:

Answer 5

1. Defendant has not filed A/s or defence, and 14 days, have expired since the service of PoC; or
2. Defendant has filed A/S, but has not filed a defence, and 28 days have expired since service of PoC.

Question 6

How many days can be extended to prevent default judgment?

Answer 6

14 + 28 days can be extended by agreement or court order for period of 28 days, making max by agreement 56 days.

Final judgment are claims for specified sums.

Judgment for damages = unspecified sums.

Question 7

DEFAULT JUDGEMENT NOT AVAILABLE

C NOT allowed default judgment if –

Answer 7

(a) (i) D applied to strike out C’s case
(a) (ii) D applied for summary judgment
(b) D paid the whole claim
(c) In a money claim D has filed an admission with a request for time to pay
(d) Part 8 claims

Question 8

In non-money claisms, how to get default judgment?

Answer 8

Non-money claims = DJ = APPLY for

Question 9

Default judgment = unspecified sum

Answer 9

Judgment for an amount to be decided by the court, plus costs.

Question 10

Default judgment = specified sum of money

Typically judgment is for the whole sum (which is):

Answer 10

• plus interest to date of judgment
• and costs

C may agree to payment by instalments

Question 11

Default judgment in claim against more than one D

C MAY obtain a default judgment on request for money or a claim for delivery of goods against one of two or more defendants + proceed with his claim against the other defendants.

1. Where C applies for a default judgment against one of two or more Ds –

(a) if the claim can be dealt with separately from the claim against the other defendants –

Answer 11

(i) the court may enter a default judgment against that defendant; and
(ii) the claimant may continue the proceedings against the other defendants;

Question 12

Default judgment in claim against more than one D

C MAY obtain a default judgment on request for money or a claim for delivery of goods against one of two or more defendants + proceed with his claim against the other defendants.

1. Where C applies for a default judgment against one of two or more Ds –

if the claim CANNOT be dealt with separately from the claim against the other defendants ​:

Answer 12

(i) the court will not enter default judgment against that defendant; and
(ii) the court must deal with the application at the same time as it disposes of the claim against the other defendants.

Question 13

C may NOT enforce against D any judgment obtained under default judgment for possession of land or delivery of goods unless –

Answer 13

1) he obtained judgment for possession or delivery against all Ds in claim; or
2) court gives permission

Question 14

SETTING ASIDE DEFAULT JUDGMENT

Court MUST set aside if judgement wrongly entered because –

Answer 14

1. Essential conditions about failing to acknowledge service or defence, or relevant time having elapsed, are not satisfied
2. Claim was satisfied before judgment entered;
3. Defendant already applied for summary judgment or to strike out the claim; or
4. Defendant had already filed an admission

Question 15

DEFAULT JUDGMENT

DISCRETIONARY setting aside:

Answer 15

Court MAY set aside/ vary judgment if –

1. D has a real prospect of successfully defending the claim; OR
2. It appears that is some other good reason why –
   
   1. Judgment should be set aside/varied; or
   2. D should be allowed to defend the claim.

Court MUST have regard to whether app was made PROMPTLY.

Question 16

Is having an “arguable” case sufficient?

Answer 16

NOT sufficient

Question 17

In Summary judgment where is the BOP?

Answer 17

On the Claimant

Question 18

In default judgment where is the BOP?

Answer 18

Defendant

Question 19

How can you refuse to set aside a judgment?

Answer 19

• Can refuse to set aside even if D was not given notice of an application to enter judgment.
• Alleged technical failures by C in entering default judgment may not be enough

Question 20

Requirements for default judgment?

Answer 20

The requirements are:

1. Defendant must have a real prospect of successfully defending the claim; or
2. Some other good reason; and
3. Application made promptly.

Question 21

Factors taken into account: for default judgment:

Answer 21

1. Promptness of app
2. “Promptly” = reasonable celerity.
3. Duty to act promptly is imposed on D personally
4. Significant delay may be enough for a refusal to set aside even if there is a defence, but not always
5. Reasons for delay
6. Whether delay = abuse of process
7. Whether hearing to asses damages
8. Prejudice to C

Pre action delay = irrelevant. Failure to provide good reason for delay not always a reason to refuse to set aside.

Question 22

Procedure for default judgment

Answer 22

D issues application notice.

Application MUST be supported by evidence.

Question 23

SUMMARY JUDGMENT

Where summary judgment is available

The court may give summary judgment against WHOM?

Answer 23

1. against a claimant in any type of proceedings.

Question 24

For a claiamnt, what type of proceedings is summary judgment allowed?

Answer 24

For C – NO EXCLUDED types proceedings.

Question 25

Where summary judgment **NOT AVAILABLE *against D*:**

Answer 25

1. certain residential premises; and 2. admiralty claims in rem.

Question 26

The court may give summary judgment **against a defendant** in any type of proceedings except –

Answer 26

1. certain proceedings for possession of **residential premises;** and 2. proceedings for **an admiralty claim in rem.** May even be brought by the court of its own initiative

Question 27

C may NOT apply for SJ until D filed – .... UNLESS

Answer 27

1. A/S 2. Defence ...UNLESS: 1. Court gives permission; or 2. PD provides If Pre-action Protocol NOT complies with = SJ MUST NOT norm be entered before **_Defence_** filed/expired. Not just A/S.

Question 28

Postponement for filing Defence =

Answer 28

If C applies for SJ against D, D need NOT file a defence before hearing.

Question 29

Can court fix summary judgment of its own hearing?

Answer 29

Court may fix summary judgment of own hearing, giving 14days notice

Question 30

What is the procedure for SUMMARY JUDGMENT?

Answer 30

APPLICATION NOTICE = **N244** app MUST: * State app for summary judgment * Identifying written evidence * MUST include a **Notice** warning respondent of **7 day rule** for serving evidence in response.

Question 31

What service of evidence is required for **SUMMARY JUDGMENT?** ## Footnote **For APPLICANT**

Answer 31

**Applicant** MUST serve **N244** and **W/S** _14 days_ before hearing. **Applicant** MUST file + serve **further evidence** 3 days before hearing. Norm heard by Master or District Judge

Question 32

What service of evidence is required for SUMMARY JUDGMENT? For **RESPONDENT**

Answer 32

**Respondent** MUST file + serve **written evidence** 7 days before hearing

Question 33

**GROUNDS FOR SUMMARY JUDGMENT** Court MAY give SJ against C or D if –

Answer 33

1. It considers – 1. C has no real prospect of succeeding **OR** 2. D has no real prospect of successfully defending; **AND** 2. No other compelling reason why case/issue should be disposed of at trial. BOP – on Applicant

Question 34

wHAT DOES: "“Real Prospect of Success” =

Answer 34

better than “merely arguable”, and “false, fanciful or imaginary”. SJ is NOT a mini-trial. The criteria is NOT probability, but **absence of reality**. Court NOT required to accept assertions made by respondent. A “realistic claim” carries “some degree of conviction” – NOT merely arguable.

Question 35

**_SUMMARY JUDGMENT_** _No other compelling reason =_ examples:

Answer 35

1. C’s case is devious or crafty 2. C’s case not plain and straightforward 3. C acted harshly and unconscionably 4. Where point of construction of standard contract affects lots of people 5. Serious allegations of bad faith NOT enough 6. C in liquidation and latent claims and cross-claims between parties

Question 36

**_SUMMARY JUDGEMENT MAY BE SUITABLE_** **_FOR:_**

Answer 36

1. Short point of law 2. Bad in law

Question 37

**_SUMMARY JUDGEMENT NOT SUITABLE:_**

Answer 37

1. **Complex question of law or fact**, or **XX** necessary 2. **Documents** in support are alleged to be **forged** 3. Apparently **credible versions** of facts advanced by both sides

Question 38

If set off has reality, what does this mean?

Answer 38

D has a “real prospect of success” up to value of set-off.

Question 39

What happens if a counterclaim does NOT amount to a set-off?

Answer 39

Counterclaim NOT amounting to set-off MAY have effect on SJ if counterclaim **linked** with claim. If D raises “triable counterclaim” which is not a set-off, court MAY grant SJ to C but with a **stay of enforcement** pending trial of the Counterclaim.

Question 40

What is set-off? EXAMPLES:

Answer 40

1. Mutual debts 2. Damage for breach of sale of goods implied term against a claim for price 3. Claim for poor workmanship against a claim for price of the work 4. Equitable set-off

Question 41

Will the court give effect to right to set off clauses?

Answer 41

_Excluding right of set-off_ = contractual clause may provide “no set-of”. Court WILL give effect to such clause.

Question 42

**Orders available on summary judgment**

Answer 42

1. Judgment on claim 2. Striking out/dismissing claim 3. Dismissal of application 4. Conditional order

Question 43

What is the Cheque rule?

Answer 43

CHEQUE RULE = “Cheque rule” = claim for non-payment of cheque or direct debt = court WILL grant summary judgment without taking into account cross-claim or set-off.

Question 44

What are the exceptions to a cheque rule?

Answer 44

EXCEPTIONS where SJ MAY be refused on action for non-payment of cheque: 1. Fraud 2. Invalidity 3. Failure of consideration

Question 45

**Where CONDITIONAL ORDER appropriate**

Answer 45

1. Oral variation of written contract BUT – if original contract had “no variation” clause = NO defence. 1. D alleging rescission of loan contract meaning D will have to repay money borrowed from C.

Question 46

What is a Norm conditional order =

Answer 46

D pay money into court within (norm) 14 days. Such payment into court = **secured fund** – useful if D becomes insolvent.

Question 47

What is : Procedure where C asks for conditional order

Answer 47

C should give D appropriate prior notice, so D can prepare written evidence.

Question 48

**_CONDITIONAL ORDER:_** D unable to pay

Answer 48

= BOP on D to establish on **balance of probabilities** proposed condition would stifle defence. CO NOT appropriate where D finds compliance “**impossible**”.

Question 49

What is a contiional order?

Answer 49

Where **POSSIBLE** claim or defence may succeed BUT **IMPROBABLE** – Court MAY make conditional order

Question 50

Conditional order = order requiring party:

Answer 50

1. To **pay sum of money** into court; or 2. Take **specified step** to his claim/defence And provides that party’s claim WILL be **dismissed** or SoC **struck out** if he doesn’t comply.

Question 51

**Security for costs as conditional order**

Answer 51

C with IMPROBABLE CASE, combined with history of breach of court orders MAY be required to provide security for D’s costs, provided it wont stifle C’s case.

Question 52

**_DIRECTIONS_** = Where court determines SJ, it MAY –

Answer 52

1. Give directions as to filing and service of defence; 2. Give further directions about management of case Where court dismissed the app or makes order not completely disposing of claim, court WILL give case management directions as to future conduct of case.

Question 53

**_IMPLIED SANCTIONS DOCTRINE_** Is setting aside an application for relief?

Answer 53

Setting aside ***IS*** an application for relief from sanctions. So 3-stage Denton test under r3.9 MUST be met.

Question 54

WHat are the stages of Denton v White?

Answer 54

* Court **MUST** consider the express requirements for setting aside * Then 3 stages of ***_Denton v TH White_*** * Seriousness or significance of the breach * Reasons for the default * All the circumstances of case, including “factors (a) and (b)” * At stage 1, seriousness etc relates to the initial delay in A/S or filing Defence

Question 55

What is promptness in Denton v White?

Answer 55

* “Promptness” in making the application to set aside is both: 1. an express requirement under r. 13.3(2), being one of the matters to which the court must have regard when considering discretionary setting aside of default judgments; and 2. a factor to be considered as part of all the circumstances of the case at Stage 3 of the *Denton* principles

Question 56

What is "some other good reason" in Denton v White?

Answer 56

Broad power to set aside for some other good reason. For example: * C being unnecessarily aggressive * Serious allegations of misconduct needing investigation at a trial * Failure by C to serve a "response pack" (conflicting decisions on this)

Question 57

What are the costs in summary judgment?

Answer 57

Court MAY make summary assessment of costs. If order doesn’t mention costs = no party entitled to costs relating to that order.

Question 58

## Footnote **_SETTING ASIDE ORDER FOR SJ_**

Answer 58

If order made against respondent who doesn’t appear at hearing of app, respondent MAY apply for order to be set aside/varied. Court may make order it thinks just.

Question 59

_Setting aside by **non-party**_ Non-party **directly affected** by judgment/order MAY apply to have judgment/order set aside/varied. Alternatively:

Answer 59

1. First join the TP as D2 2. Then TP can apply to set aside

Question 60

Setting aside on conditions = Court MAY impose conditions when it makes orders. This applies to

Answer 60

setting aside default judgments.

Question 61

**Setting aside on conditions =** Court MAY impose conditions when it makes orders. This applies to setting aside default judgments. MAY include condition to pay a sum of money into court. Condition may be:

Answer 61

1. requiring D to pay whole/party sum claimed into court 2. ordering D to pay costs “thrown away” Where C abandoned claim for remedy to obtain default judgment and it is set aside, the abandoned claim is restored when default judgement set aside.