If you’re the claimant in a business dispute, default judgment may be a tactical mechanism available to you for two reasons: it could result in the early determination of your claim, or it could prompt the defendant to apply to have the judgment set aside. On the flip side, you may be a defendant in receipt of a default judgment and be looking for some information as to what the process is all about. This article aims to provide you with a high-level overview of how default judgment works in straightforward claims involving you and one other party, and will cover the following topics in turn:
Important note: since the situation in relation to Brexit is still in a state of flux, the scope of this note does not cover default judgment in the context of jurisdictions outside of England & Wales.
Jump to:
- What is default judgment?
- Which parts of the CPR deal with default judgment?
- What are the time limits for acknowledgment of service and the defence?
- What should you be aware of if you are a defendant to proceedings?
- Specific scenarios within the context of defences & default judgment
- Are there any circumstances where default judgment cannot be obtained?
- What’s the procedure for applying for default judgment?
- How do you complete the request for default judgment form?
- How do you make an application?
- What does a claimant need to show to be successful on a request or application for summary judgment?
- Conditions for default judgment
- What if your application for default judgment is for the delivery up of goods?
- Types of default judgment and the associated orders available
- Can you claim interest on the judgment amount?
- What costs can you expect?
- What to expect from a disposal hearing
- Are you obliged to obtain default judgment if it is open to you to do so?
What is default judgment?
It’s quite often the case that, if you find yourself embroiled in court litigation, you will be keen to find a way to bring the claim to an end early. Making an application for default judgment is an administrative way in which this may be possible - in other words, a way of resolving the matter without the need for a full trial.
The key to identifying whether or not default judgment is available to you is to look at whether or not your opponent (the defendant, assuming you are the claimant) has failed to file either an acknowledgment of service or a defence (including a defence to counterclaim) within the time limits set out in the Civil Procedure Rules (CPR). If a defence has been filed, then this removes the avenue of possibility for applying specifically for default judgment – regardless of the quality of it.
Which parts of the CPR deal with default judgment?
CPR 12 governs default judgment generally.
CPR 20 deals with default judgment for counterclaims and additional claims.
What are the time limits for acknowledgment of service and the defence?
The time limits for acknowledging service and filing a defence are calculated by reference to service of the particulars of claim (the document setting out your case and specifying the facts you rely on). The time limit for filing a defence also depends on whether or not an acknowledgment of service is filed.
You can find the general rule on timings in CPR 15.4, which sets out that within 14 days after you have served your particulars of claim on the defendant, they must either file (lodge at court) an acknowledgment of service or a defence. If neither is filed after 14 days, default judgment can be entered.
The general rule for acknowledgements of service is that the period for filing is:
- Where your opponent is served with a claim form which states that the particulars of claim are to follow, 14 days after service of the particulars of claim.
- In any other case, 14 days after service of the claim form.
What should you be aware of if you are a defendant to proceedings?
If you are a defendant to proceedings, you should file a defence within 28 days after service of the particulars of claim, otherwise a default judgment can be entered against you. If you’re worried about meeting this deadline, it’s possible to agree an extension of time of up to 28 days with the claimant or apply to the court if this isn’t an option/agreement is refused.
Please note: It’s important to be aware that different rules apply in the Commercial Court: if a defendant fails to file an acknowledgment of service, the claimant doesn’t need to serve particulars of claim before applying for default judgment.
Specific scenarios within the context of defences & default judgment
It may be the case that the facts of your specific scenario do not fit the above prescribed time limits, which means that there will likely be an overlap with other parts of the CPR. If you’re unclear, then we would recommend that you seek legal advice as soon as possible so that you can receive advice tailored to your situation.
Are there any circumstances where default judgment cannot be obtained?
As with any means of dispute resolution, there are times when obtaining a particular type of relief is prohibited by the CPR. Below is a summary of the main circumstances in which that would be the case, and are mostly relevant if you are a claimant:
- A claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974.
- Where the procedure set out in CPR 8 ('Part 8' – an alternative procedure for claims) is being used.
- Where the defendant has a pending application for striking out the claim or for summary judgment.
- Where the defendant has satisfied the whole claim (including any claim for costs).
- Where (in cases where the claim is for money) the defendant has filed or served any admission to pay the full sum, along with a request for time to pay.
- Where the defendant has filed an acknowledgment of service and disputes the jurisdiction.
If you’re concerned about whether you are permitted to apply for default judgment, then the best thing to do is seek out some legal support.
What’s the procedure for applying for default judgment?
It’s important to highlight here that whilst default judgment is an administrative mechanism, it is not something that is dealt with automatically by the court. This means that a request must be filed, or an application must be made.
Certain factors as set out in the CPR will determine whether, as a claimant, you must make an application for default judgment, or if you may make a request for it. The table below should help you to establish which category your claim sits in:
| May file a request | Must make an application |
| The claim is for a specified amount of money | On a claim which consists of (or includes a claim for) any other remedy than money or delivery of goods (this would appear to include a claim for declaration). |
| An amount of money (damages) is to be decided by the court | Where CPR 12.9 or CPR 12.10 so provide (beyond the scope of this article). |
| Delivery up of goods where the claim form gives the defendant the alternative of paying a specified sum representing their value | |
| Any combination of the above remedies |
How do you complete the request for default judgment form?
A request for default judgment is made using a court form and once you have completed it, you should file it at court. Unlike most other types of procedural mechanisms, a fee is not payable for such a request. The form you choose will depend on the nature of your case, and can be determined as follows:
- Form N225: use this form in a claim for a specified amount of money, or if your claim is for the delivery of goods where a defendant will be given the alternative of paying a specified sum representing their value, or where the claim is for fixed costs only.
- Form N227: use this form in a claim where an amount of money (including an amount representing the value of goods) is to be decided by the court.
How do you make an application?
In relation to an application for default judgment, you should use Form N244 (the 'Application Notice') or in the Commercial Court, Form N244 (CC). You should attach a copy of the order you are seeking and pay the fee for the application.
In the application form, you should ensure that you put down all of the necessary information to satisfy the court that judgment should be entered. Content will be discussed in more detail shortly.
Within the Application Notice, you will see that there is a Part C: you must briefly set out your evidence in support of the application in this box, or attach it in another document – for example, a witness statement or affidavit.
The difference between a request for default judgment and an application is that notice always has to be given in the case of an application, but not a request.
What does a claimant need to show to be successful on a request or application for summary judgment?
Broadly speaking, the way the court treats default judgment will vary depending on whether you have made a request or an application:
- Request: A court officer will consider the application on paper and make a straightforward assessment of whether the relevant CPR criteria is fulfilled. If so, default judgment will be granted.
- Application: The court will list a hearing for the matter to be dealt with in court, giving both parties the opportunity to attend and make representations (in other words, the defendant will be able to respond to the evidence in your Application Notice in front of a judge). This sometimes involves a consideration of the merits of the claim, but only usually so far as it is set out in your statement of case.
Conditions for default judgment
There are some conditions which have to be met before the court will consider entering default judgment in your favour:
- The particulars of claim must have been served (note that the position is slightly different in the Commercial Court – see CPR 58.8). Filing a certificate of service at court will be sufficient to prove that this has been done.
- The court will check that no acknowledgment of service or defence has been lodged by the defendant to your claim.
- The court will also check that the defendant has not satisfied your claim, or filed an admission with a request for more time to pay.
- Lastly, there must not be any pending applications looming either for summary judgment or for the striking out of your claim.
What if your application for default judgment is for the delivery up of goods?
In this case (where the defendant will not be given the alternative of paying the value of the goods), it’s vital that your evidence addresses the following:
- You must have identified the goods in your application.
- You must state where you believe the goods are situated.
- Lastly, you must state why delivery up of the goods is sought.
Types of default judgment and the associated orders available
You will no doubt be wondering what types of orders the court can make if the application or request you have made is decided in your favour. This section will therefore take a look at the main outcomes you should be aware of.
Judgment: The court may enter judgment for an amount of money – either a specified amount or an amount to be determined – or a judgment for something else. A judgment for something other than money is effective immediately; likewise with a judgment for money, save for circumstances where you have claimed a particular sum in your request for default judgment and have indicated on the form that you are willing to accept payment by instalments (ensure that you specify the rate and timeframe that’s acceptable to you on the form if you decide to do this).
Default judgment for an unspecified sum: In this scenario, it will depend whether or not a hearing has taken place. If there was a hearing, then the judge should have given some directions as to how the unspecified sum will be determined. If there was not a hearing (in other words, if you made a request for default judgment as opposed to an application), the amount of the sum payable by the defendant will have to be proved. Usually, the court will then list the matter for a disposal hearing (more details on this will be set out a little further along below).
Can you claim interest on the judgment amount?
The default judgment on claims for specified or determined sums will include interest accrued up to the date on which the default judgment was entered, provided that:
- You set out full particulars of interest in your particulars of claim (including the percentage rate applied, the total interest claimed to the date of the calculation and the daily rate at which interest is to accrue after that date).
- Where you have claimed statutory interest, that the rate you are seeking is no higher than that payable on judgment debts at the date the claim form was issued.
- Your request (or application) for judgment sets out a calculation of the interest claimed between the date to which interest has been calculated in the claim form and the date of the request for judgment.
Otherwise, judgment will be entered for interest to be decided by the court.
What costs can you expect?
You should be aware that fixed costs are automatically awarded where your claim is for a specified sum of money (that is, not a claim for damages to be assessed) and you are successful in obtaining default judgment. However, you can sidestep this by applying for costs to be assessed. The reason that you can do this is because the fixed costs regime applies unless the court orders otherwise. All that being said, it is ultimately a matter for the court's discretion.
It’s important to highlight here that the amounts allowed by way of fixed costs are extremely low, whereas the costs you may incur in getting your claim to the stage of default judgment may be substantial. After you have issued proceedings, it is also possible to claim pre-action costs. Therefore, it’s sensible to consider applying for costs to be assessed when applying for default judgment.
Lastly, any evidence of the costs you have incurred should be collated, so that this can be presented and justified to the court.
What to expect from a disposal hearing
Disposal hearings generally consist of a short hearing (around 30 minutes or even shorter) before a judge. The judge might give further directions, or decide the amount payable there and then.
Notice of the disposal hearing (or contested hearing, if the judge decides it’s appropriate) should be served on the defendant. The court won’t proceed in the absence of the defendant unless it has seen evidence of service of such notice upon them. If you wish to have damages assessed at the first disposal hearing instead of obtaining directions, then you must serve written evidence on the defendant at least three clear days before the hearing.
When the court is assessing the amount payable by the defendant, the judge will listen to points on quantum raised by both you and your opponent.
Are you obliged to obtain default judgment if it is open to you to do so?
It is not mandatory to apply for default judgment, even if you are entitled to do so. However, as mentioned above, it could well bring you various tactical advantages – including the prospect of the dispute being resolved earlier than it otherwise would if it proceeded to a full trial.
