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A default judgment


The law makes provisions to set aside or vary default judgment; but what is a default judgment?

Default judgment

A default judgment is a judgment that is given to a claimant because of the failure of the defendant named on the claim to acknowledge service or to defend the claim.{{more}}

Avoiding default judgment

To avoid having a default judgment served on you, you have to acknowledge service by filling out and filing the relevant document that is usually served with the claim form. After you have acknowledged service, the matter does not end there. Where you are the defendant, you would have 28 days after the service of the claim form, to file your defence. In your defence you would want to show that the claimant’s claim is not valid and you would want to give your side of the story. You can avoid all this trouble if you consider the claimant’s claim to be valid and you decide to satisfy the claim. You can contact the claimant or the claimant’s lawyer and have the matter settled. I believe that the claimant would have made many demands, oral and written, before taking this giant step to go to court.

I always encourage clients to settle matters, if possible, rather than go to court and I will tell you why in subsequent articles. If you have settled the claim for a specific sum of money in part, you would still need to make the time deadline for filing the acknowledgement of service and defence. More time is normally given to defendants overseas.

Extension of time

If there is a good reason the parties could agree to an extension of time, but you cannot exceed 56 days. The defendant has to file details of this agreement. If there is no consent from the claimant, the defendant can apply to the court for an extension of time to file a defence.

Part 12 of the Civil Procedure Rules (the Rules) provides for default judgment and it specifically indicates instances in which default judgment may not be obtained and these include a claim in probate proceedings, an admiralty claim in rem and a fixed date claim. The Rules make provision elsewhere for these. Under Rule 68.6 and 70.22 for the first and second example. For a fixed date claim, the very nature of this claim precludes default judgment.

When a fixed date claim is filed, a date is fixed for an appearance before the judge. So, the matter is immediately before the court and under the control of the judge. If there is no appearance, then the judge can make a decision whether to rule in favour of the claimant or not. On the other hand, the registrar issues the default judgment that we discussed above.

Continuing the case

Default judgment made by the registrar could be set aside or varied by a judge sitting in the High Court for some of the reasons mentioned above. The court has this power under Part 13 of the Rules. An application must be made to vary or set aside and there must be not only good reasons, but a “real prospect of succeeding.” The application must be accompanied by an affidavit and a copy of the defence that you expect to use. If your application is successful, then you would be allowed to file your defence at a specific date and the case would continue.

Ada Johnson is a solicitor and barrister-at-law.

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