Part 12 – Default Judgments

Scope of this Part

12.1 (1) This Part contains provisions under which a claimant may obtain

judgment without trial where the defendant has failed to file –

(a) a defence in accordance with Part 10; or

(b) an acknowledgment of service giving notice of intention to defend in accordance with Part 9.

(2)Such a judgment is called a “default judgment”.

Claims in which default judgment may not be obtained

12.2 A claimant may not obtain default judgment if the claim is-

       (a) a claim in probate proceedings;

       (b) a fixed date claim; or

        (c) an admiralty claim in rem.

·         Rule 68.6 deals with probate proceedings.

·         Rule 70.22 makes special provision for default judgment in admiralty cases for personal injury     

               arising out of a collision between two ships.

 
Cases in which permission required                 
 

12.3 (1)A claimant who wishes to obtain a default judgment on any claim which is a claim against a –

           (a) minor or patient as defined in rule 2.4; or

(b) State as defined in any relevant enactment relating to state immu­nity;

must obtain the court’s permission.

·            Part 59 deals with proceedings against the Crown.

·               Part 23 deals with proceedings involving a minor or patient.

(2)A claimant who wishes to obtain judgment in default of acknow­ledgment of service against a  diplomatic agent who enjoys immunity from civil jurisdiction by virtue of any relevant enactment relating to diplomatic privileges must obtain the court’s permission.

(3)An application under paragraph (1) or (2) must be supported by evidence on affidavit.

•Rule 12.9(2) contains restrictions on a default judgment where it is sought against some but not all defendants.

Conditions to be satisfied – judgment for failure to file acknowledgment of service

12.4 The court office at the request of the claimant must enter judgment for failure to file an acknowledgment of service if –

(a) the claimant proves service of the claim form and statement of claim;

(b) the defendant has not filed –

(i) an acknowledgment of service; or

(ii) a defence to the claim or any part of it;

(c) the defendant has not satisfied in full the claim on which the claimant seeks judgment;

(d) the only claim is for a specified sum of money, apart from costs and interest, and the defendant has not filed an admission of liability to pay all of the money claimed together with a request for time to pay it;

(e) the period for filing an acknowledgment of service under rule 9.3 has expired; and

(f) (if necessary) the claimant has the permission of the court to enter judgment.

·   Rules 5.5, 5.11, 5.12 and 5.15 deal with how to prove service of the claim form

            and statement of claim.

Conditions to be satisfied – judgment for failure to defend
 

12.5 The court office at the request of the claimant must enter judgment for failure to defend if –

(a) (i) the claimant proves service of the claim form and statement of claim; or

(ii) an acknowledgment of service has been filed by the defen­dant against whom judgment is sought;

(b) the period for filing a defence and any extension agreed by the parties or ordered by the court has expired;

(c) the defendant has not –

(i)filed a defence to the claim or any part of it (or the defence has been struck out or is deemed to have been struck out under rule 22.1(6)); or

(ii) (if the only claim is for a specified sum of money)filed or served on the claimant an admission of liability to pay all of the money claimed, together with a request for time to pay it; or

(iii) satisfied the claim on which the claimant seeks judgment; and

 (d) (if necessary) the claimant has the permission of the court to enter judgment.

Admission of part – request for time to pay
 

12.6(1) This rule deals with the situation where the –

(a) defendant is an individual who has admitted liability to pay either –

 (i) a specified sum towards a claim for an unspecified sum of money; or

                   (ii) part only of a claim for a specified sum;      

(b) defendant has not filed a defence; and                                                                                   

(c) claimant does not accept the sum admitted.                                                   

(2)Subject to any restriction imposed by this Part, the claimant may apply for judgment to be entered for –

     (a) the whole amount of the claim for a specified sum together with

         interest and fixed costs under rule 65.4; or

     (b) if the claim is for an unspecified sum – the payment of an amount to be decided by the court.

(3) If the defendant has requested time to pay, that request must be dealt with, if the claim is for –

    (a) a specified sum – in accordance with rules 14.9 and 14.10 or 14.11;

    (b) an unspecified sum – when damages are assessed in accordance with rule 16.3.

Procedure
 

12.7 A claimant applies for default judgment by filing a request in Form 7.

·   Rule 16.2 sets out additional information that must be provided where the claim is for an unspecified sum of money.

Claim for specified sum of money

12.8 (1) The fact that the claimant also claims costs and interest at a specified rate does not prevent a claim from being a claim for a specified sum of money.

(2)A claimant who claims a specified sum of money together with interest at an unspecified rate may apply to have judgment entered for either the sum of money claimed –

            (a) and for interest to be assessed; or

(b) together with interest at the statutory rate from the date of the claim to the date of entering judgment.

(3) If a claim is partly for a specified sum and partly for an unspecified sum the claimant may abandon the claim for the unspecified sum and enter default judgment for the specified sum.

·Rule 2.4 defines “claim for a specified sum of money”.

Claim against more than one defendant
 

12.9 (1) A claimant may apply for default judgment on a claim for money or a claim for delivery of goods against one of two or more defendants and proceed with the claim against the other defendants.

(2) If a claimant applies for a default judgment against one of two or more defendants, then if the claim –

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

(i) the court may enter judgment against that defendant; and

(ii) the claimant may continue the proceedings against the other defendants;

(b) cannot be dealt with separately from the claim against the other

defendants, the court –

(i) may not enter judgment against that defendant; and

(ii) must deal with the application at the same time as it disposes

of the claim against the other defendants.

(3) If a claim for delivery of goods is made against more than one defendant (with or without any other claim), the claimant may not enforce any judgment for

delivery entered under this Part against a defendant unless the –

(a)claimant has obtained a judgment for delivery (whether or not obtained under this Part) against all the defendants to the claim; or

(b)court gives permission.

Nature of default judgment
 

12.10(1) Default judgment on a claim for –

         (a) a specified sum of money – must be judgment for payment of that

                   amount or, a part has been paid, the amount certified by the claimant as outstanding –

            (i) if the defendant has applied for time to pay under Part 14 – at the time and rate ordered by the court; or

           (ii) in all other cases – at the time and rate specified in the request for judgment;

·Rule 2.4 defines “a claim for a specified sum of money” and sets out the circumstances under which a claim for the cost of repairing property damaged in a road accident can be treated as such a claim.

·                        Part 65 deals with the quantification of costs.

(b) an unspecified sum of money – must be judgment for the payment of an amount to be decided by the court and must be in Form 32.

·Rule 16.2 deals with the procedure for assessment of damages where judgment is entered under this paragraph.

(c) goods – must be –

   (i) judgment requiring the defendant either to deliver the goods

                      or pay their value as assessed by the court;

              (ii) judgment requiring the defendant to pay the value of the goods as assessed by the court; or          

             (iii) (if the court gives permission) a judgment requiring the defendant to deliver the goods without giving the defendant  the alternative of paying their assessed value.

(2)  An application for permission to enter a default judgment under paragraph (1) (c) (iii) must be supported by evidence on affidavit.

(3) A copy of the application and the evidence under paragraph (2) must be served on the defendant against whom judgment has been sought even though that defendant has failed to file an acknowledgment of service or a defence.

(4)Default judgment where the claim is for some other remedy shall be in such form as the court considers the claimant to be entitled to on the statement of claim.

(5) An application for the court to determine the terms of the judgment under paragraph (4) need not be on notice but must be supported by evidence on affidavit and rule 11.15 does not apply.

Interest
 

12.11 (1) A default judgment must include judgment for interest for the period claimed if the –

(a) claim form includes a claim for interest;

(b) claim form or statement of claim includes the details required by rule 8.6(4); and

(c) request for default judgment states the amount of interest to the date it was filed.

(2) If the claim form includes any other claim for interest, the default judgment must include judgment for an amount of interest to be decided by the court.

Costs

12.12 (1) A default judgment must include fixed costs under rule 65.4 unless the court assesses the costs.

(2)An application to assess costs must be on notice to the defendant.

•Rule 65.11 deals with the assessment of costs.

Defendant’s rights following default judgment

12.13   Unless the defendant applies for and obtains an order for the judgment to be set aside, the only matters on which a defendant against whom a default judgment has been entered may be heard are –

(a)         the assessment of damages, provided that he or she has indicated that he or she wishes to be heard by filing a Notice in Form 31 within seven [7] days after service of the claimant’s submissions and witness statements on the defendant pursuant to Rule 16.2(2);

(b)         an application under Rule 12.10(4);

(c)         costs;

(d)         enforcement of the judgment; and

(e)         the time of payment of the judgment debt.

·         Part 13 deals with setting aside or varying default judgments”