Legislation Notes on Default Judgment and Summary Judgment

Default Judgment (DJ)

  • Definition: Judgment without trial, typically when a defendant fails to respond appropriately.

    • Applies when:

    • No acknowledgment of service (AoS) submitted.

    • No defense filed.

  • Exceptions: Cannot obtain DJ for certain claims, such as:

    1. Claims under the Consumer Credit Act (e.g., purchasing a car on credit).

    2. Cases under Part 8 procedures (like determining a clause's meaning in a Will).

  • Timing for Default Judgment:

    • Claimant must wait until the defendant's response period (14 days from service) has expired.

    • DJ may be obtained if the defendant acknowledges but doesn’t file defense timely.

Conditions to Prevent Default Judgment

  • Defendant may:

    1. Apply to strike out the case.

    2. Seek summary judgment before DJ is granted.

  • Relevant situations include:

    1. When the defendant admits the claim.

Nature of Judgment Obtained

  • Specified Amount: Judgment for the claimed amount plus costs.

  • Unspecified Amount: Judgment left for court determination.

  • Delivery of Goods: Judgment can order delivery or payment for goods.

Multiple Defendants

  • DJ can be granted against one defendant while proceedings against others continue.

  • If claims cannot be handled separately, DJ won’t be granted.

Applications to Set Aside Default Judgment

  • Mandatory Court Actions:

    • Court must set aside DJ when it was improperly obtained (e.g., claimant acted prematurely).

    • DJ must be set aside if the defendant paid the full claim before judgment.

  • Discretionary Factors:

    • The court considers:

    1. Existence of a valid defense.

    2. Promptness of the defendant’s application to set aside.

  • Denton Test for Relief from Sanction:

    1. Assess seriousness of breach.

    2. Determine reason for the breach.

    3. Review overall case circumstances.

Real Prospect of Success

  • Key Considerations:

    • The court evaluates if the defendant has more than an arguable case.


      Procedural Aspects

  • Defendant must issue an application notice (Part 23) supported with evidence to request setting aside.

  • The court verifies compliance by the claimant in seeking DJ beforehand.

Summary Judgment (SJ)

  • Availability: Can be granted against claimants or defendants in any type of proceedings except in specific residential possession cases.

  • Grounds for Summary Judgment:

    • Lack of real prospect of success for either party.

    • No compelling reason for a trial.

Application Timing and Notice Requirements

  • A claimant may not seek SJ until the defendant has acknowledged or filed a defense, although exceptions apply.

  • Notice of hearing must be given at least 14 days in advance.

Application Notice and Evidence Requirements

  • Application Notice Must:

    • Clearly state the request for SJ.

    • Include relevant evidence and legal points.

  • Evidence deadlines:

    • Respondent’s evidence is due 7 days before the hearing.

    • Applicant’s reply evidence due 3 days before the hearing.

Determining Summary Judgment Applications

  • The court may:

    1. Order defendant filings.

    2. Provide further case management directions.

Key Points on "No Real Prospect of Success"

  • The burden of proof lies with the applicant.

    • Courts assess evidence to determine realistic success probability without conducting a mini-trial.

  • Settlements or new evidence aren't sufficient grounds to contest an SJ application.

  • Justice and seriousness of the allegations outweigh procedural promptness in applications.