Part 12 DEFAULT JUDGMENT
| Title | Number |
|---|---|
| Meaning of ‘default judgment’ | Rule 12.1 |
| Claims in which default judgment may not be obtained | Rule 12.2 |
| Conditions to be satisfied | Rule 12.3 |
| Procedure for obtaining default judgment | Rule 12.4 |
| Nature of judgment where default judgment obtained by filing a request | Rule 12.5 |
| County Court Money Claims | Rule 12.5A |
| Interest | Rule 12.6 |
| Procedure for deciding an amount or value | Rule 12.7 |
| Claim against more than one defendant | Rule 12.8 |
| Procedure for obtaining a default judgment for costs only | Rule 12.9 |
| Default judgment obtained by making an application | Rule 12.10 |
| Supplementary provisions where applications for default judgment are made | Rule 12.11 |
| Supplementary provisions where applications for default judgment are made | Rule 12.12 |
Meaning of ‘default judgment’
12.1
In these Rules, ‘default judgment’ means judgment without trial where a defendant—
(a) has failed to file an acknowledgment of service; or
(b) has failed to file a defence or any document intended to be a defence.
Claims in which default judgment may not be obtained
12.2
A claimant may not obtain a default judgment–
(a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974(a);;
(b) where they use the procedure set out in Part 8 (alternative procedure for claims); or
(c) in any other case where a rule or practice direction says that the claimant may not obtain default judgment.
Conditions to be satisfied
12.3
(1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered—
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.
(2) Judgment in default of defence (or any document intended to be a defence) may be obtained only—
(a) where an acknowledgement of service has been filed but, at the date on which judgment is entered, a defence has not been filed;
(b) in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed,
and, in either case, the relevant time limit for doing so has expired.
(Rule 20.4 makes general provision for a defendant’s counterclaim against a claimant, and rule 20.4(3) provides that Part 10 (acknowledgement of service) does not apply to a counterclaim made under that rule.)
(3) The claimant may not obtain a default judgment if at the time the court is considering the issue—
(a) the defendant has applied—
(i) to have the claimant’s statement of case struck out under rule 3.4; or
(ii) for summary judgment under Part 24,
and, in either case, that application has not been dealt with;
(b) the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment;
(c)
(i) the claimant is seeking judgment on a claim for money; and
(ii) the defendant has admitted liability to pay all the money claimed but has requested time to pay; or
(d) notice has been given under rule 82.21 of a person’s intention to make an application for a declaration under section 6 of the Justice and Security Act 2013(a) in relation to the proceedings, and that application has not been dealt with.
(Part 14 sets out the procedure where a defendant admits a money claim and asks for time to pay.)
(Rule 6.17 provides that, where the claim form is served by the claimant, the claimant may not obtain default judgment unless a certificate of service has been filed.)
Procedure for obtaining default judgment
12.4
(1) Subject to paragraph (3), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for—
(a) a specified amount of money (Form N205A or N225);
(b) an amount of money to be decided by the court (Form N205B or N227);
(c) delivery of goods where the claim form gives the defendant the alternative of paying their value (N205A, N225); or
(d) any combination of these remedies.
(2) Where the defendant is an individual, the claimant must provide the defendant’s date of birth (if known) where required in the form.
(3) The claimant must make an application in accordance with Part 23 if they wish to obtain a default judgment—
(a) on a claim which consists of or includes a claim for any other remedy; or
(b) where rule 12.10 or rule 12.11 says so,
and where the defendant is an individual, the claimant must provide the defendant’s date of birth (if known) in Part C of the application notice.
(4) Where a claimant—
(a) claims any other remedy in the claim form in addition to those specified in paragraph (1); but
(b) abandons that claim in their request for judgment,
they may still obtain a default judgment by filing a request under paragraph (1).
(5) In civil proceedings against the Crown, as defined in rule 66.1(2), a request for a default judgment must be considered by a Master or District Judge, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown in accordance with section 18 of the Crown Proceedings Act 1947(a) and rule 6.10.
Nature of judgment where default judgment obtained by filing a request
12.5
(1) Where the claim is for a specified sum of money, the claimant may specify in a request filed under rule 12.4(1)—
(a) the date by which the whole of the judgment debt is to be paid; or
(b) the times and rate at which it is to be paid by instalments.
(2) Except where paragraph (4) applies, a default judgment on a claim for a specified amount of money obtained on filing a request, will be judgment for the amount of the claim (less any payments made) and costs, to be paid—
(a) by the date or at the rate specified in the request for judgment; or
(b) if none is specified, immediately.
(Interest may be included in a default judgment obtained by filing a request if the conditions set out in rule 12.7 are satisfied.)
(3) Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for an amount to be decided by the court together with costs.
(4) Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be judgment requiring the defendant to—
(a) deliver the goods or (if they do not do so) pay the value of the goods as decided by the court (less any payments made); and
(b) pay costs.
(Rule 12.8 sets out the procedure for deciding the amount of a judgment or the value of the goods.)
(5) The claimant’s right to enter judgment requiring the defendant to deliver goods is subject to rule 40.14 (judgment in favour of certain part owners relating to the detention of goods).
County Court Money Claims
12.6
(1) If a claimant files a request for judgment in the County Court which includes an amount of money to be decided by the court in accordance with rules 12.4 and 12.5, the claim will be sent to the preferred hearing centre.
(2) If a claim is sent to a preferred hearing centre under paragraph (1), any further correspondence should be sent to, and any further requests should be made at, the hearing centre to which the claim was sent.
Interest
12.7
(1) A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if—
(a) the particulars of claim include the details required by rule 16.4;
(b) where interest is claimed under section 35A of the Supreme Court Act 1981 or section 69 of the County Courts Act 1984, the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
(c) the claimant’s request for judgment includes a calculation of interest from the date up to which interest was calculated in the claim form up to the date of the request for judgment.
(2) In any case where paragraph (1) does not apply, judgment will be for an amount of interest to be decided by the court.
(Rule 12.8 sets out the procedure for deciding the amount of interest.)
Procedure for deciding an amount or value
12.8
(1) This rule applies where the claimant obtains a default judgment on the filing of a request under rule 12.4(1) and judgment is for—
(a) an amount of money to be decided by the court;
(b) the value of goods to be decided by the court; or
(c) an amount of interest to be decided by the court.
(2) Where the court enters judgment it will –
(a) give any directions it considers appropriate; and
(b) if it considers it appropriate, allocate the case.
Claim against more than one defendant
12.9
(1) A claimant may obtain a default judgment on request under this Part 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) Where a claimant applies for a default judgment against one of two or more defendants—
(a) if the claim can be dealt with separately from the claim against the other defendants—
(i) the court may enter a default judgment against that defendant; and
(ii) the claimant may continue the proceedings against the other defendants;
(b) if the claim cannot be dealt with separately from the claim against the other defendants—
(i) the court will not enter default judgment against that defendant; and
(ii) the court must deal with the application at the same time as it deals with the claim against the other defendants.
(3) A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless—
(a) they have obtained a judgment for possession or delivery (whether or not obtained under this Part) against all the defendants to the claim; or
(b) the court gives permission.
Procedure for obtaining a default judgment for costs only
12.10
(1) Where a claimant wishes to obtain a default judgment for costs only—
(a) if the claim is for fixed costs, they may obtain it by filing a request in the relevant practice form;
(b) if the claim is for any other type of costs, they must make an application in accordance with Part 23.
(2) Where an application is made under this rule for costs only, judgment shall be for an amount to be decided by the court.
(Part 45 sets out when a claimant is entitled to fixed costs.
Default judgment obtained by making an application
12.11
(1)The claimant must make an application in accordance with Part 23 where—
(a) the claim is—
(i) claim against a child or protected party; or
(ii) claim in tort by one spouse or civil partner against the other;
(b) the claimant wishes to obtain a default judgment where the defendant has failed to file an acknowledgment of service—
(i) against a defendant who has been served with the claim out of the jurisdiction under rule 6.32(1) or 6.33(2B); (service where permission of the court is not required under the Civil Jurisdiction and Judgments Act 1982);
(ii) against a defendant domiciled in Scotland or Northern Ireland;
(iii) against a State;
(iv) against a diplomatic agent who enjoys immunity from civil jurisdiction by virtue of the Diplomatic Privileges Act 1964; or
(v) against persons or organisations who enjoy immunity from civil jurisdiction under the provisions of the International Organisations Acts 1968 and 1981.
Supplementary provisions where applications for default judgment are made
12.12
(1) Where the claimant makes an application for a default judgment, the court shall give such judgment as the claimant is entitled to on the statement of case.
(2) Any evidence relied on by the claimant in support of their application need not be served on a party who has failed to file an acknowledgment of service.
(3) An application for a default judgment on a claim against a child or protected party or a claim in tort between spouses or civil partners must be supported by evidence.
(4) On an application against a child or protected party, a litigation friend must be appointed by the court to act on behalf of the child or protected party before judgment can be obtained.
(5) An application for a default judgment may be made without notice if—
(a) the claim under the Civil Jurisdiction and Judgments Act 1982 or the 2005 Hague Convention or made in respect of a contract which provides that the court shall have jurisdiction to determine each claim made against the defendant to be served was served in accordance with rules 6.32(1) or 6.33(2B) as appropriate;
(b) the defendant has failed to file an acknowledgment of service; and
(c) notice does not need to be given under any other provision of these Rules.
(6) Both on a request and on an application for default judgment the court must be satisfied that—
(a) the particulars of claim have been served on the defendant (a certificate of service on the court file will be sufficient evidence);
(b) either the defendant has not filed an acknowledgment of service or has not filed a defence and that in either case the relevant period for doing so has expired;
(c) the defendant has not satisfied the claim; and
(d) the defendant has not admitted liability to pay all the money claimed and requested time to pay.
(c) where paragraph (5)(b) permits a judgment or an application notice to be served out of the jurisdiction, the procedure for serving the judgment or the application notice is the same as for serving a claim form under Section III of Part 6 except where an alternative method of service has been agreed under section 12(6) of the State Immunity Act 19787.
(Rule 23.1 defines ‘application notice’)
(7) On an application where the defendant was served with the claim either—
(a) outside the jurisdiction without leave under the Civil Jurisdiction and Judgments Act 1982, the 2005 Hague Convention, the Lugano Convention or the Judgments Regulation; or
(b) within the jurisdiction but when domiciled in Scotland or Northern Ireland or in any other Convention territory or Member State, and the defendant has not acknowledged service, the evidence must establish that—
(i) the claim is one that the court has power to hear and decide;
(ii) no other court has exclusive jurisdiction under the Act, the 2005 Hague Convention, the Lugano Convention or Judgments Regulation to hear and decide the claim; and
(iii) the claim has been properly served in accordance with Article 20 of Schedule 1 to the Civil Jurisdiction and Judgments Act, Article 9(c) of the 2005 Hague Convention, Article 26 of the Lugano Convention, paragraph 15 of Schedule 4 to the Act, or Article 26 of the Judgments Regulation.
(8) Where an application is made against a State for a default judgment where the defendant has failed to file an acknowledgment of service—
(a) the application may be made without notice, but the court hearing the application may direct that a copy of the application notice is served on the State;
(b) if the court—
(i) grants the application; or
(ii) directs that a copy of the application notice be served on the State,
the judgment or application notice (and the supporting evidence) may be served out of the jurisdiction without any further order;
(c) where paragraph (5)(b) permits a judgment or an application notice to be served out of the jurisdiction, the procedure for serving the judgment or the application notice is the same as for serving a claim form under Section III of Part 6 except where an alternative method of service has been agreed under section 12(6) of the State Immunity Act 1978.
(Rule 23.1 defines ‘application notice’.)
(9) On an application against a State, the evidence must be way of affidavit and must—
(a) set out the grounds of the application;
(b) establish the facts proving that the State is excepted from the immunity conferred by section 1 of the State Immunity Act 1978;
(c) establish that the claim was sent through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State or, where the State has agreed to another form of service, that the claim was served in the manner agreed; and
(d) establish that the time for acknowledging service (which is extended to two months by section 12(2) of the Act when the claim is sent through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State) has expired.
(See rule 40.10 for when default judgment against a State takes effect.)
(10) For the purposes of this rule and rule 12.11—
(a) ‘domicile’ is to be determined—
(b) ‘Convention territory’ means the territory or territories of any Contracting State, as defined by section 1(3) of the Civil Jurisdiction and Judgments Act 1982, to which the Brussels Conventions or Lugano Convention apply;
(c) ‘State’ has the meaning given by section 14 of the State Immunity Act 1978;
(d) ‘Diplomatic agent’ has the meaning given by Article 1(e) of Schedule 1 to the Diplomatic Privileges Act 1964;
(e) ‘the Judgments Regulation’ means Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as amended from time to time and as applied by the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; and
(f) ‘the Lugano Convention’ means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark and signed by the European Community on 30th October 2007; (g) ‘the 2005 Hague Convention’ means the Convention on Choice of Court Agreements concluded on 30th June 2005 at the Hague.
(11) Where default judgment is given on a claim for a sum of money expressed in a foreign currency, the judgment should be for the amount of the foreign currency with the addition of ‘or the Sterling equivalent at the time of payment’.
(12) On an application for judgment for delivery up of goods where the defendant will not be given the alternative of paying their value, the evidence must identify the goods and state where the claimant believes the goods to be situated and why their specific delivery up is sought.