Judgement in Default
Default of Appearance I
Where a defendant fails to appear to a summons and the claimant wishes to proceed on the basis of such default of appearance, he shall, before taking such proceeding, file an affidavit of service of the summons or notice in lieu of summons, as the case may be.
Where an originating summons whether plenary or summary, is indorsed with a claim for a liquidated demand and the defendant fails, or if more than one, all the defendants fail to appear, the claimant may enter final judgement in the Central Office for such sum as is mentioned in the affidavit required by the rules not exceeding the sum indorsed on the summons, together with interest to the date of the judgement and costs.
Special provisions apply to proceedings by a money-lenders and consumer credit providers.
Where no appearance has been entered in proceedings for the recovery of land within the time limited for appearance, the claimant shall, subject to the following rules, be at liberty, whether or not he claims for rent or double rent or damages for breach of contract or injury to the premises have been indorsed in the summons, proceed to enter judgement in the Central Office that the person whose title is asserted in the summons shall recover possession of the land or the part thereof, to which a defence does not apply.
Such judgement shall not contain an award of costs. It is to be without prejudice to the claimant’s right to have the costs taxed by a proper officer and his right to proceed by an action for recovery of any mesne rates, arrears of rent, damages and costs etc.
In the case of default of appearance by a defendant to an originating summons, the claimant in the case of a plenary summons, may deliver a statement of claim by filing the same in the Central Office, in the case of a special summons, by filing a grounding affidavit in the Central Office and in the case of a personal injury summons, a summary summons or other originating documents by filing an affidavit in the Central Office, verifying the facts relied upon and thereupon may apply to Court for judgement in default of appearance.
Default of Appearance II
In proceedings for recovery of land for non-payment of rent, no judgement shall be entered under this provision until an affidavit has been filed by the landlord, his agent, receiver or clerk, stating that at the commencement of proceeding at least one year’s rent due over and above all just and fair allowances.
If no appearance has been entered in proceedings for the recovery of land within the time limited for an appearance, the claimant, in lieu of proceeding under the above rule, be at liberty to proceed under the following rule or in the case of a summary summons, to set the summons down for hearing on such date as the Master may fix and in such latter case, such judgement may be given, on the hearing of the summons, as the Master considers the claimant to be entitled to.
In default of appearance by any defendant to a plenary summons, the claimant shall, except in cases otherwise provided for by the above rules, deliver a statement of claim by filing the same in the Central Office. He may thereupon apply to the Court for judgement in the proceedings in default of appearance and if necessary, for the ascertainment of damages to which he may be entitled. The Court may fix the amount of such damages itself on foot of evidence given by affidavit or otherwise or may refer the matter to the Master to determine.
Default of Appearance III
Where a summons is indorsed with a claim for the delivery of specific goods, either alone or with other claim and the defendant fails to appear, the claimant may, if he requires the specific delivery of the goods, apply to the Court for an order for judgement for the return of the goods detained without giving the defendant the option of retaining the goods upon paying the value thereof or upon the ascertainment, in such manner as the Court may direct, of the goods in respect of non-delivery of which, the claimant is entitled to recover and which remain undelivered and upon the same being so ascertained, an order for delivery may issue for the same.
Where an originating summons is indorsed with a claim for a liquidated demand and there are several defendants, one or more of whom appear and others who fail to appear, the claimant may enter final judgement against those who have not appeared. He may issue execution on such judgement, without prejudice to his right to proceed against such of the defendants as have appeared.
Where there are several defendants to a plenary summons and one or more appears and others do not appear, the claimant may proceed under the above rule against the defendant so failing to appear. The application for judgement shall be heard and the damages to which the claimant may be entitled shall be ascertained, as against the other defendant, at the same time as the trial of proceeding against the other defendant, unless the Courts otherwise direct.
Money Claims I
Where a plenary summons is indorsed with a claim for liquidated damages together with another claim and the defendant fails to appear, the claimant may enter final judgement for the liquidated demand, together with interest and costs under the above rules, against the defendant or defendants who have failed to appear. He may proceed, in relation to the other claim as provided under the rule. Where a final judgement is entered, it is lawful for the Court to set aside and vary such judgement upon such terms as may be just. Before judgement by default shall be entered for any liquidated sum, an affidavit shall be filed specifying the sum due.
Where the claimant is entitled to enter final judgement in the Central Office and claims interest on the whole or part of the sum for which he is entitled to judgement between the date on which the claim arose and the date of judgement, the claimant may apply to the Court ex parte (unilaterally) for a judgement inclusive of such interest. The application is to be sworn by an affidavit, sworn by a person who can positively swear to the facts specifying the sum actually due and the facts relied on.
Where an originating summons is indorsed with a claim on a bond, covenant or agreement, and the defendant fails to appear, no statement of claim shall be delivered and the claimant may apply by motion to Court for leave to enter judgement for such sum as may seem just. On such application, the Court may order judgement to be entered accordingly or may direct an inquiry, trial of issues, as may appear necessary for the ascertainment of the claimant’s demand. If the sum ascertained to be due does not amount to the sum mentioned in the bond, covenant or agreement, the claimant, may in the event of any subsequent breach, from time to time, apply to the Court and the Court may thereupon, make such further order or direct such further inquiries or trial, as may be just.
In any case in which the claimant is not entitled to enter final judgement in the Central Office under the above rules and in which the defendant fails or all the defendants if more than one, fail to appear, but in which, by reason of payment, satisfaction, abatement of nuisance or other reason, it is unnecessary for the claimant to proceed, he may by leave of the Master, obtained by motion on notice, enter judgement for costs.
Money Claims II
In proceedings brought by a moneylender or in a consumer credit case, an application for leave to enter judgement in default of appearance must be returned to the Master. The Master must be satisfied that the application for judgement is properly made and that the claimant is entitled to judgement under the Moneylenders Act or the Consumer Credit Act.
In an action to recover a debt or liquidated sum under a hire-purchase or credit-sale agreement, an application for leave to enter judgement in default of appearance is also required.
In any case, coming before him, the Master may, in lieu of giving or refusing enter judgement, enter the summons on the Court list for hearing.
In proceedings for which the rules do not specifically otherwise provide, in the case of a party served with the summons does not appear within the time limited, then on filing by the claimant a proper affidavit of service and where appropriate, a statement of claim, the proceedings may proceed as if a party had appeared.
Obtaining Judgement
The method of obtaining a judgment in default of appearance depends on the type of summons involved and the matters at issue. Where a judgment is sought in default of appearance proof of service by an affidavit of service is required.
In the case of a claim for liquidated damages by a summary summons, and n application can be made through the court offices without a court application for judgment in default. The sum claimed is proved by an affidavit of debt which is filed in the central office of the High Court.
Where some defendants appear and others do not appear it is possible to seek a judgment against those who do not appear. If a plenary summons also includes a claim for a liquidated sum, the plaintiff may seek judgment for the liquidated sum together with interests and costs against defendants who have failed to appear. It may proceed in accordance with the other appropriate procedures against the other defendants.
There are special procedures for cases where there is a default of appearance in relation to recovery of land, goods, certain other types of claims.
Consumer Credit
Leave of the Master of the High Court for summary judgment under the Consumer Credit Act. This is to protect consumer debtors.The Master may refuse to give consent and place the summons in the court list for hearing.
The procedure also applies to hire purchase claims and claims by a moneylender. It also applies to actions for debt arising from hire purchase or credit sale agreement or guarantees relating to those sums.
Uncertain Sum
In the case of unliquidated damages, their amount and extent must be assessed by the court. The plaintiff may bring a motion for judgment in default of appearance against the defendant or against the defendants who have not appeared where there are multiple defendants. Notice of motion should seek an order granting judgment upon the terms claimed as the court considers the plaintiff to be entitled or an order that compensation is to be assessed by a court at a date to be fixed either by a judge or judge and jury the jury cases involved.
Proof of service and certification of no entry must be given in latter case by the plaintiff’s solicitor. The motion itself must be served on the defendant. It should be personally served. If the defendant appears it is likely that the court will grant an extension of time to file an appearance but may award costs for the additional steps. If this has not occurred the court may proceed to give judgment provided it is satisfied as to the service of summons. It would require proof of the matters in the statement of claim.
In the case of unliquidated or unspecified damages, the court may order that the matter be referred to the judge for assessment. Where some defendants appear and some do not the compensation or damages will be awarded at the time of the principal proceedings with the other defendants who have appeared.
Setting Aside Default Judgement
Where a judgment is entered in default of appearance an application may be made to set aside or vary the judgment on such terms as may be thought fit. The court may set aside the judgment on the basis that there was an irregularity in the proceedings or procedure where there appears to be a good defence and the interests of justice require that the defendants should be given the opportunity to defend the proceedings. In the latter case, the court may impose terms such as a requirement to pay costs.
In order to succeed in setting aside a judgment, it is necessary to show the judgment the defendant has a defence that has a reasonable prospect of success. Generally, it is necessary to show some element of irregularity or defect in the judgment. This may happen for example when judgment proceedings are served at the registered office or former registered office.
The court may impose terms when setting aside a judgment. If part of a judged case claim is not seriously contested it may require payment of this amount. It may require that should be taken to ensure that assets are not removed as if there had been a judgment made. It may require payment of the entire judgment into court.
Default of Pleadings
Where an order is made in proceedings in default of the defendant entering a defence, an application may be made to the court to set it aside. The application will not suspend the original order. The application to set aside must be based on valid grounds, such as failure to follow the prescribed procedure, surprise, misrepresentation or fraud. The court has the discretion in relation to whether to set the order aside.
If the application is based on failure to comply with the rules, then the order will be readily set aside. Similarly, where the defendant has been properly served under the rules but has not had actual notice of the proceedings, the order is more likely to be set aside. In contrast, if the defendant has had noticed of the proceedings, they will be set aside, only if there is a justifiable reason. The applicant must give the court a reasonable and justifiable explanation as to how and why he failed to appear and defend the proceedings.
The defendant must show he has a good defence. It must be a good and bona fide defence, with a real prospect of success.
If an order is granted setting aside the order obtained in default, then the court may make such order as to costs as are appropriate. It may grant extensions of time and make such orders as are appropriate for the further conduct of the proceeding.