Interim Applications, Default Judgment, and Summary Judgment in Civil Procedure

Overview of Interim Applications

• An interim application refers to any application submitted to the court before trial to seek a specific order or remedy. Examples of such remedies include summary judgment, interim injunctions, and the setting aside of default judgments.

• Interim applications are distinct from routine case management directions, which cover procedural matters like disclosure and witness evidence timetables. These routine matters are typically handled at directions hearings or on paper.

• The primary procedural framework for these applications is governed by Civil Procedure Rules (CPR) Part $23$ and Practice Direction (PD) $23A$.

• A comprehensive list of available remedies can be found in CPR $25.1$.

Normal Procedure for Interim Applications under CPR Part 23

• Application Notice (CPR 23.1):

  • The application must be filed by the applicant.

  • The notice must explicitly state the specific order being sought and the reasons why it should be granted.

  • The respondent is defined as the party against whom the order is sought.

  • All application notices must be verified by a statement of truth as required by CPR $23.6$.

• Jurisdiction and Venue (CPR 23.2):

  • Applications should generally be made to the court or hearing centre currently dealing with the claim.

  • If the case has been transferred, the application should be filed at the new hearing centre.

  • Once a trial date has been fixed, applications must be made to the trial hearing centre.

• Evidence in Support (CPR 23.7):

  • Evidence is usually provided in written form, which may include a witness statement, an affidavit, or the evidence box within the application notice itself.

  • A draft of the proposed order should be included with the application.

  • Oral evidence is exceptionally rare; however, CPR $32.7$ allows for cross-examination with the court's permission.

• On Notice Applications (CPR 23.4):

  • Applications must normally be served on the respondent at the earliest opportunity and no later than $3$ clear days before the scheduled hearing.

  • Practice Directions emphasize that applications should be made promptly.

  • If formal service is impossible, informal notice must be provided unless the nature of the application requires total secrecy.

• Applications Without a Hearing (CPR 23.8):

  • The court has the authority to decide an application on paper (without a hearing) if the parties agree or if the court determines that a hearing is not necessary.

• Costs:

  • Costs are typically addressed at the conclusion of the hearing through a summary assessment.

  • This assessment is based on costs schedules, which must be served on the opposing party at least $24$ hours before the hearing.

Variations and Special Considerations in Interim Applications

• Court Initiative: Under CPR $3$, the court may make orders of its own initiative without a formal application from a party.

• Without Notice Applications (CPR 23.9 / PD 23A):

  • These are permissible in cases involving extreme urgency, requiring secrecy, or where there is no respondent affected by the order.

  • Safeguards: Any order made without notice must explicitly state the respondent's right to apply to the court to set aside or vary the order within $7$ days (CPR $23.9$-$23.10$).

  • The applicant has a strict duty of full and frank disclosure when applying without notice.

• Meritless Applications: If an application is deemed ‘totally without merit,’ the court is required to record this finding and may consider issuing a civil restraint order under CPR $23.12$.

Default Judgment (CPR Parts 12 and 13)

• Default judgment is a judgment obtained without a trial in circumstances where the defendant fails to engage in the legal procedure, specifically by not acknowledging service or failing to file a defense.

• The process is primarily administrative and does not involve the court considering the underlying merits of the case.

• Availability (CPR 12.3): A claimant may enter default judgment if:

  • No acknowledgment of service (AOS) is filed within the required timeframe (usually $14$ days).

  • No defense is filed within the required timeframe (typically $14$ days after the particulars of claim are served, or $28$ days if an AOS was filed).

• Exclusions (CPR 12.2): Default judgment cannot be obtained for:

  • Claims for the delivery of goods regulated by the Consumer Credit Act $1974$.

  • Claims initiated under Part $8$.

  • Any other claim specifically excluded by practice directions.

• Grounds for Refusal (CPR 12.3(3)): Even if a defense has not been filed, the court will refuse default judgment if:

  • The defendant has a pending application for strike out or summary judgment.

  • The defendant has already satisfied the entirety of the claim.

  • The defendant has admitted liability but has requested additional time to pay.

Procedures for Obtaining and Entering Default Judgment

• Money Claims and Delivery of Goods (CPR 12.4–12.5):

  • The claimant must file a formal request for judgment using the correct form.

  • This request may include a calculation for interest (CPR $12.7$).

  • Specified Sums: If the claim is for a fixed amount, the judgment is final (though it can be set aside).

  • Unspecified Sums: If the claim is for an unspecified amount, judgment is entered on liability only (‘interlocutory judgment’), and the amount (quantum) is assessed at a later stage.

  • If the claim form was served personally by the claimant, a certificate of service must be filed.

• Multiple Defendants (CPR 12.9): Default judgment can be entered against a single defendant among several only if that person’s liability can be dealt with separately, such as in cases of joint and several liability.

• Non-Money Remedies (CPR 12.4(3)): If a claim includes remedies such as an injunction or a declaration, the claimant must apply under CPR $23$ for judgment, unless they choose to abandon those specific remedies (CPR $12.4(4)$).

• Special Parties: Certain cases, such as those involving claims against children or protected parties, always require a formal application (CPR $12.11$).

Setting Aside Default Judgment

• Setting aside a default judgment is performed via an interim application under CPR $23$, supported by evidence and served on the claimant. It usually involves a hearing and a summary assessment of costs.

• Mandatory Set Aside (CPR 13.2): The court must set aside a judgment if it was entered irregularly, such as when the conditions in CPR $12.3$ were not met or the claim was already paid.

  • Under the principle established in Adam v Akram, service at the defendant's last known address can result in a ‘regular’ judgment even if the defendant never actually received the documents.

• Discretionary Set Aside (CPR 13.3): The court may exercise discretion to set aside if:

  • The defendant demonstrates a real prospect of successfully defending the claim.

  • There is another ‘good reason’ to set the judgment aside or allow a defense to be filed.

  • These grounds are disjunctive, meaning either can suffice.

  • Per CPR $13.3(2)$, the court must consider if the application to set aside was made promptly; significant delay can lead to the application being denied.

• Denton and Relief from Sanctions: Post-Jackson reforms treat setting aside default judgment as a form of relief from sanctions.

  • Courts apply the CPR $13.3$ factors alongside the three-stage test from Denton v TH White Ltd, as reinforced in Gentry v Miller:

    1. The seriousness or significance of the breach.

    2. The reason why the default occurred.

    3. An evaluation of all the circumstances of the case to ensure justice is done.

  • The court may impose conditions, such as paying money into court, when setting aside a judgment (CPR $3.1(3)$).

Summary Judgment (CPR Part 24)

• Summary judgment allows for judgment without a full trial following a hearing that considers the merits of the case. It is designed to stop weak claims or defenses from consuming resources through a costly trial.

• Summary judgment can be sought by either the claimant or the defendant regarding the whole claim or a specific issue (CPR $24.3$).

• It is not available against defendants in certain types of residential possession proceedings (CPR $24.2$).

• Procedural Requirements: The Application Notice must:

  • State explicitly that it is an application for summary judgment.

  • Identify the specific point of law or document being relied upon.

  • Include or attach supporting evidence.

  • State the applicant’s belief that the opponent has no real prospect of success.

  • State that there is no other reason the case should wait for a trial.

  • Notify the respondent of their right to file evidence under CPR $24.5$.

Procedure and Notice Periods for Summary Judgment

• Timing: A claimant generally cannot apply for summary judgment until the defendant has filed an AOS or a defense (CPR $24.4(1)$), unless the court gives special permission.

• Applications are best made early, often before or at the Directions Questionnaire stage.

• Notice Periods: These are longer than standard interim applications:

  • The applicant must provide at least $14$ clear days’ notice of the hearing (CPR $24.4(5)$).

  • The respondent must file their evidence at least $7$ clear days before the hearing.

  • The applicant must file any reply evidence at least $3$ clear days before the hearing.

• Court Initiative: The court may list a summary judgment hearing on its own initiative as part of its duty of active case management (CPR $24.4$; CPR $1.4$).

Grounds and Judicial Orders for Summary Judgment

• Grounds for Granting (CPR 24.3): The court will grant summary judgment if:

  1. The respondent has no real prospect of succeeding on the claim or defense.

  2. There is no other compelling reason why the case should be disposed of at a trial.

• Real Prospect: According to Swain v Hillman, ‘real prospect’ means the chance of success must be realistic and not fanciful. The judge is tasked with assessment, not conducting a ‘mini-trial’ of the evidence.

• Compelling Reasons: These might include cases of significant complexity, cases requiring public scrutiny, or cases where there is a right to a jury trial (such as defamation).

• Possible Court Orders (CPR 24.6):

  • Judgment for the claimant on the whole claim or a specific issue.

  • Dismissal or strike out of the claim or a specific issue.

  • Dismissal of the summary judgment application itself.

  • Conditional Order: The court may order a party to pay money into court or provide security. If the party fails to comply, their claim or defense may be struck out. These are often used when success is possible but improbable.

  • The Court of Appeal in Gama Aviation established principles that limit the use of payment or security conditions, especially where complying with the condition is impossible for the party.

• Finality: Costs are addressed at the end of the summary judgment hearing. If the proceedings are permitted to continue, the court will issue further case management directions. Summary judgment is applicable across all tracks, including the small claims track.