When can a claimant apply for judgment in default?
If the defendant fails to file a defence within the specified period
What is the consequence if a default judgment is granted?
The defendant is not permitted to defend the claim and 1) to pay the specified amount (in a specified claim) OR pay a sum in damages to be decided by the court (in an unspecified claim)
If a defendant applies to set aside a default judgment, what is the test the court considers?
The court must be satisfied that:
- The defendant has a real prospect of successfully defending the claim; AND
- There is some other good reason why the judgment should be set aside and the defendant allowed to defend the claim
When MUST the court set aside judgement in default?
When it has been wrongly entered.
What are four key examples of when a judgment in default may have been wrongly entered?
- Judgement was entered too early
- The application for judgement was made after an application had been issued by the defendant to strike out the claim or dismiss the claim summarily and the application has not yet been considered by the court
- The claim has already been paid or settled
- The defendant had already submitted a request for time to pay which has not yet been considered
What must the defendant do when applying to set aside a judgement in default?
Act promptly
What may the court do when setting aside judgment in default and allowing a defendant to defend a claim?
- Impose conditions on the defendant (such as paying a sum into court)
What is an unless order?
If a party defaults on a procedural step, the other party may make an application for an unless order. If granted the court will specify the penalty that will be imposed unless the defaulting party complies.
What factors will the court consider when deciding to grant relief from sanctions?
- The overriding objective
- Proportionately
- Seriousness of the breach
- The reasons for the breach
On what period of notice should an interim application usually be made?
3 days notice before the hearing.
What should an applicant for an interim application file and serve no later than two days before the hearing?
A case summary and proposed draft order
When is notice of an interim application not necessary?
If giving notice may defeat the purpose of the application or create an injustice.
What is the procedure for an application made without notice?
- It must include evidence explaining why notice was not given.
- If an order is made on the without notice application, it must be served on the other party with the notice and supporting evidence. The other party then has 7 days in which to make an application to vary or set aside the order.
- If a party make an application without notice erroneously, the court is likely to dismiss it with a wasted costs order (the SOLICITOR pays the other sides legal costs associated with the application).
What is the legal test for summary judgement?
- The claimant/defendant has no real prospect of succeeding on the claim
- There is no other compelling reason why the case should be disposed of at trial.
What is the legal test for a strike out application?
- The statement of case disclosed no reasonable grounds for bringing or defending the claim; OR
- The statement of case is an abuse of the courts process; OR
- There has been a failure to comply with a rule, practice direction, or order.
After what events have occurred can an application for summary judgement be made?
- The claimant has served the PoC
- Defendant has filed a defence or AoS
On what period of notice should an application for summary judgement be made?
14 days before the hearing.
What are the grounds for which a court may order an interim payment?
- The defendant has admitted liability
- The claimant has obtained judgment
- The court is satisfied that if the claim proceeded to trial, the claimant would obtain judgment for a substantial sum
- If the claim is against two or more defendant’s, the court is satisfied that if the action went to trial, the claimant would obtain judgment for a substantial sum against at least one and each defendant’s carries insurance.
