PRACTICE DIRECTION – DEFAULT JUDGMENT

This Practice Direction supplements CPR Part 12

Contents of this Practice Direction
Title	Number
Default Judgment
Obtaining default judgment
Default Judgment by Request	Para. 3.1
Evidence	Para. 4.1
General	Para. 5.1

Default Judgment

1.1

A default judgment is judgment without a trial where a defendant has failed to file either:

(1) an acknowledgment of service, or

(2) a defence.

For this purpose a defence includes any document purporting to be a defence.

(See Part 10 and the practice direction which supplements it for information about the acknowledgment of service, and Parts 15 and 16 and the practice directions which supplement them for information about the defence and what it should contain.)

1.2

A claimant may not obtain a default judgment under Part 12 (notwithstanding that no acknowledgment of service or defence has been filed) if:

(1) the procedure set out in Part 8 (Alternative Procedure for Claims) is being used, or

(2) the claim is for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974^Acts, or

Para 1.2(3) and (4) deleted w/e from 1 March 2002.

1.3

Other rules and practice directions provide that default judgment under Part 12 cannot be obtained in particular types of proceedings. Examples are:

(1)   admiralty proceedings;

(2)   arbitration proceedings;

(3)   contentious probate proceedings;

(4)   claims for provisional damages;

(5)   possession claims.

Para 1.3 amended w/e from 1 March 2002.

Obtaining default judgment


2.1	Rules 12.4(1) and 12.9(1) describe the claims in respect of which a default judgment may be obtained by filing a request in the appropriate practice form.

2.2

A default judgment on:

(1) the claims referred to in rules 12.9(1)(b) and 12.10, and

(2) claims other than those described in rule 12.4(1),

can only be obtained if an application for default judgment is made and cannot be obtained by filing a request.

2.3

The following are some of the types of claim which require an application for a default judgment:

(1)   against children and protected parties¹,

(2)   for costs (other than fixed costs) only²,

(3)   by one spouse or civil partner against the other³ on a claim in tort⁴,

(4)   for delivery up of goods where the defendant will not be allowed the alternative of paying their value; and

(5)   Omitted.

(6)   against persons or organisations who enjoy immunity from civil jurisdiction under the provisions of the International Organisations Acts 1968 and 1981.

Para 2.3 of PD12 amended w/e from 1 October 2005,
Text substituted in paragraph 2.3(1) w/e from 1 October 2007.

Default Judgment by Request

3.1

Requests for default judgment;

(1) in respect of a claim for a specified amount of money or for the delivery of goods where the defendant will be given the alternative of paying a specified sum representing their value, or for fixed costs only, must be in Form N205A or N225, and

(2) in respect of a claim where an amount of money (including an amount representing the value of goods) is to be decided by the court, must be in Form N205B or N227.


3.2	The forms require the claimant to provide the date of birth (if known) of the defendant where the defendant is an individual.

New Para 3.2 of PD12 added w/e from 6 April 2006. (Note that the DCA site says 6 April 2005: this is thought to be a typo).

Evidence

4.1

Both on a request and on an application for default judgment the court must be satisfied that:

(1)   the particulars of claim have been served on the defendant (a certificate of service on the court file will be sufficient evidence),

(2)   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,

(3)   the defendant has not satisfied the claim, and

(4)   the defendant has not returned an admission to the claimant under rule 14.4 or filed an admission with the court under rule 14.6.

This Paragraph is referred to in: Comm Ct Guide - Pt B (B10.0).

4.2

On an application against a child or protected party⁵:

(1)   a litigation friend⁶ to act on behalf of the child or protected party must be appointed by the court before judgment can be obtained, and

(2)   the claimant must satisfy the court by evidence that he is entitled to the judgment claimed.

Text substituted in paragraph 4.2 w/e from 1 October 2007.
4.3

On an application where the defendant was served with the claim either:

(1) outside the jurisdiction⁷ without leave under the Civil Jurisdiction and Judgments Act 1982, or the Judgments Regulation, or

(2) within the jurisdiction but when domiciled⁸ in Scotland or Northern Ireland or in any other Convention territory⁹ or Member State,

and the defendant has not acknowledged service, the evidence must establish that:

(a)   the claim is one that the court has power to hear and decide,

(b)   no other court has exclusive jurisdiction under the Act or Judgments Regulation to hear and decide the claim, and

(c)   the claim has been properly served in accordance with Article 20 of Schedule 1 or 3C to the Act, paragraph 15 of Schedule 4 to the Act, or Article 26 of the Judgments Regulation.

Para 4.3 text replaced w/e from 1 March 2002,
Paragraph 4.3(2)(c) replaced w/e from 30 June 2004,
Text substituted in paragraph 4.3(2) w/e from 1 October 2008.
4.4

On an application against a State¹⁰ the evidence must:

(1)   set out the grounds of the application,

(2)   establish the facts proving that the State is excepted from the immunity conferred by section 1 of the State Immunity Act 1978,

(3)   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

(4)   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 40.8 for when default judgment against a State takes effect.)

Paragraph 14.4 substituted w/e from 15 October 2001.
4.5

Evidence in support of an application referred to in paragraphs 4.3 and 4.4 above must be by affidavit.
4.6
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.

General


5.1	On all applications to which this practice direction applies, other than those referred to in paragraphs 4.3 and 4.4 above¹¹, notice should be given in accordance with Part 23.


5.2	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’.

Footnotes

1. See rule 12.10(i).

2. See rule 12.9(b).

3. See rule 12.10(ii).

4. Tort may be defined as an act or a failure to do an act which causes harm or damage to another person and which gives the other person a right to claim compensation without having to rely on a contract with the person who caused the harm or damage.

5. As defined in rule 21.1(2).

6. As defined in the practice direction which supplements Part 21.

7. As defined in rule 2.3.

8. As determined in accordance with the provisions of ss.41 to 46 of the Civil Jurisdictions and Judgments Act 1982^Acts.

9. Means the territory of a Contracting State as defined in s.1(3) of the Civil Jurisdiction and Judgments Act 1982^Acts.

10. As defined in s.14 of the State Immunity Act 1978^Acts.

11. See rule 12.11(4) and (5).


(1)	a litigation friend⁶ to act on behalf of the child or protected party must be appointed by the court before judgment can be obtained, and


(2)	the claimant must satisfy the court by evidence that he is entitled to the judgment claimed.


(1)	outside the jurisdiction⁷ without leave under the Civil Jurisdiction and Judgments Act 1982, or the Judgments Regulation, or


(2)	within the jurisdiction but when domiciled⁸ in Scotland or Northern Ireland or in any other Convention territory⁹ or Member State,


(2)	establish the facts proving that the State is excepted from the immunity conferred by section 1 of the State Immunity Act 1978,


(3)	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


(4)	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.


4.6	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.