Default judgment — overviewWhen default judgment will be ordered

A default judgment is a judgment made where there is no trial because a defendant has either failed to file an acknowledgment of service or has failed to file a defence or a claimant has failed to serve a defence to counterclaim.

In certain circumstances the court will not order a default judgment, for example, Part 8 claims, arbitration proceedings and possession claims. The Civil Procedure Rules specify that certain conditions must be fulfilled before a party can apply for judgment in default. The rules also set out when the court's permission is required for a judgment in default.

Procedure for default judgment

A default judgment may be obtained either by application on notice (court's permission is required) or by request (court permission not required). The Civil Procedure Rules set out the criteria to determine which route should be followed. The evidence which has to be produced to the court is the same; in certain circumstances additional evidence must also be adduced. To grant a judgment in default, a court has to be satisfied as to a number of issues which include that the particulars of claim have been served.

Where a default judgment is made pursuant to an application then normally only fixed costs are recovered.

Setting aside judgment in default

A defendant must act as soon as possible to make an application to set aside a judgment in default. The documents required to make the application and the procedure to follow is set out in the Civil Procedure Rules. There are certain circumstances in which the court must set aside a judgment in default, for example, where the court is satisfied that the defendant was not served with the claim form. In other circumstances the court has a discretion whether to set aside a judgment, for example, where the defendant has a real prospect of defending the claim. The court may impose conditions when setting aside a default judgment, for example, a payment into court.