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Introduction
- Default judgment is one of the most powerful procedural tools at a litigant’s disposal, enabling judgment to be obtained without a trial and generally without any examination of the merits. Yet it remains a common source of avoidable error.
- Its obvious attraction and apparent simplicity can lead trigger-happy parties to overlook the conditions governing its use. A Claimant must establish proper service of the proceedings, expiry of the relevant period, that no Defence or anything intended to be a Defence has been filed, and that default judgment is available for the relief claimed.
- Those conditions matter. A default judgment entered when the requirements of CPR Part 12 are not satisfied must be set aside under CPR 13.2. Even a regularly entered default judgment may be set aside under CPR 13.3. A party who obtains default judgment without first checking the position may therefore achieve little more than delay and an unattractive argument about costs.
- This article provides a practical guide to obtaining default judgment under CPR Part 12 and to setting it aside under CPR Part 13.
Obtaining default judgment
The conditions under CPR 12.3
5. Judgment in default of an Acknowledgment of Service may be obtained only if, at the date judgment is entered:
5.1 the Defendant has filed neither an Acknowledgment of Service nor a Defence to the claim, or any part of it; and
5.2 the relevant time for doing so has expired.
6. Judgment in default of a Defence may be obtained where an Acknowledgment of Service has been filed but, at the date judgment is entered, no Defence has been filed and the relevant period has expired. It may also be obtained on a counterclaim where no Defence to Counterclaim has been filed within the relevant period, there being no requirement for an Acknowledgment of Service in response to a counterclaim: CPR 12.3(2)(b) and CPR 20.4(3).
7. Crucially, the relevant date is the date judgment is entered; not the date on which it is requested or the date on which the Court decides to grant it. In Galliani v Sartori [2023] EWHC 3306 (Comm), the Acknowledgment of Service was filed after the Court had decided to grant default judgment, but before the Order was sealed. Judgment hadtherefore not yet been properly entered for the purposes of CPR 12.3, and had to be set aside. For those acting for Defendants, the message is clear: if judgment has not yet been entered, file the Acknowledgment of Service or Defence immediately. The fact that the deadline has passed, or that judgment has already been requested, may not prevent a late filing from defeating the request.
8. For the purposes of default judgment, the question is whether a Defence or “any document intended to be a defence” has been filed: CPR 12.1. Its quality is therefore beside the point. If such a document falls short of the requirements of CPR 16.5 or discloses no viable defence, the Claimant should instead consider applying to strike it out and/or for summary judgment.
Calculating the deadline
9. The general time limits will be familiar:
9.1 under CPR 10.3, an Acknowledgment of Service must be filed within 14 days after service of the Claim Form or, where the Claim Form states that Particulars of Claim are to follow, within 14 days of service of the Particulars of Claim;
9.2 under CPR 15.4, a Defence must be filed within 14 days after service of the Particulars of Claim; and
9.3 if an Acknowledgment of Service is filed, the Defence must be filed within 28 days after service of the Particulars of Claim.
10. These are only the general rules. Different timing provisions apply in some specialist Courts and where the claim is served outside the jurisdiction. The parties may agree an extension of up to 28 days for filing the Defence under CPR 15.5 and the Court may also extend time under its general case-management powers. The relevantdeadline must therefore be reviewed in each case.
11. Where a Defendant has filed an Acknowledgment of Service indicating an intention to dispute jurisdiction and has made the appropriate application under Part 11, the Defendant is not required to file a Defence before that challenge is determined. Default judgment will not be available in the meantime.
12. There is a further trap where the proceedings have been left dormant. CPR 15.11 provides for a stay where six months have passed since the end of the period for filing a Defence and the other conditions in that rule are met. Claimants must then apply to lift the stay before seeking default judgment.
Cases where default judgment is unavailable
13. CPR 12.2 excludes default judgment:
13.1 on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974;
13.2 where the Part 8 procedure is used; and
13.3 where another rule or practice direction says that default judgment may not be obtained.
14. CPR 12.3(3) separately prevents default judgment where:
14.1 the Defendant has made an undetermined application for strike out or summary judgment;
14.2 the whole claim, including costs, has been satisfied;
14.3 in a money claim, the Defendant has admitted liability for the whole amount and requested time to pay; or
14.4 notice has been given of the application identified in CPR 12.3(3)(d), and that application remains unresolved.
15. Practitioners should note that the ordinary Part 12 procedure is excluded or modified in some specialist proceedings including possession claims, contentious probate claims, and claims for provisional damages. In addition, Part 12 applies to counterclaims but not to other additional claims which are subject to the special provisions in Part 20. Where the claim is anything other than an ordinary Part 7 claim, the relevant provisions should therefore be consulted.
Request or application?
16. Choosing the wrong procedure can have serious consequences. A request for default judgment is ordinarily dealt with administratively by a Court officer; whereas an application requires a Judge to consider the Claimant’s entitlement to the relief sought. A Claimant who follows an incorrect route risks delay, additional costs, and a judgment which may later be set aside.
17. A Claimant may ordinarily obtain judgment by filing a request where the claim is for:
17.1 a specified amount of money;
17.2 an amount of money to be decided by the Court;
17.3 delivery of goods where the Defendant is given the alternative of paying their value; or
17.4 a combination of those remedies.
18. Forms N205A or N225 are used for a specified amount or delivery of goods where the Defendant is given the alternative of paying their value. Forms N205B or N227 are used where the amount is to be decided by the Court. No fee is payable for the request itself. Where the Claimant rather than the Court served the Claim Form, CPR 6.17(2)(b) requires a certificate of service to be filed before default judgment may be obtained.
19. By contrast, a Part 23 application is required where the claim consists of or includes some other remedy, or where judgment is sought for costs other than fixed costs alone: CPR 12.4(3) and CPR 12.10. An application is also required in the particular cases identified in CPR 12.11, which include claims against children or protected parties, claims in tort between spouses or civil partners, and certain claims involving service out of the jurisdiction.
20. The application should be made on Form N244 and accompanied by evidence addressing service, expiry of the relevant period, the absence of any Acknowledgment of Service or Defence, and the relief claimed. A draft Order should also be provided. Subject to the exceptions in CPR 12.12, such documents should generally be served as soon as practicable and at least three days before the Court deals with the application.
21. A request for default judgment is made without notice. Conversely, where a Part 23 application is required, the Application Notice and supporting evidence must generally be served under CPR 23.7, subject to the exceptions in CPR 12.12. In particular, supporting evidence need not be served on a Defendant who has failed to file an Acknowledgment of Service: CPR 12.12(2).
22. Whether judgment is sought by request or application, the Court must be satisfied that the Particulars of Claim were served. A certificate of service on the Court file is sufficient: CPR 12.12(6)(a).
Consideration by the Court
23. Even if all the requirements are met, it is important to remember that the Claimant is not necessarily entitled to every Order sought. In Ras Al Khaimah Investment Authority v Azima [2023] EWHC 2108 (Ch), drawing upon Lux Locations Ltd v Zhang [2023] UKPC 3, the Court recognised that it retained a discretion not to enter default judgment where the result would be unjust. That consideration is particularly important where non-monetary relief may affect the rights of the Defendant.
24. Where the claim is for both money judgment and another remedy, CPR 12.4(4) allows the Claimant to abandon the latter and obtain judgment by request for the former. That course should not, however, be taken lightly: an express abandonment of the other remedy may prevent the Claimant from pursuing that relief while the default judgment remains in place: Pincus v Johal and another [2024] EWHC 502 (Ch).
The effect of judgment
25. The Court will consider whether the claim is genuinely for a specified amount or alternatively for an amount to be assessed. Merely estimating a figure on a claim for damages does not necessarily make it a specified money claim: Edward v Okeke [2023] EWHC 2932 (KB).
26. Default judgment for a specified amount will ordinarily be for the amount claimed, less payments received, together with costs and any interest which satisfies CPR 12.7. The Claimant may, when requesting default judgment, specify a date for payment or payment by instalments, but if neither is specified, the sum is payable immediately: CPR 12.5(1) and (2).
27. Where the amount is to be assessed, default judgment determines liability but not quantum. The Claimant must still prove the amounts recoverable. The Court may give directions for a disposal or assessment hearing: CPR 12.8. The Defendant may then raise matters going to quantum, including questions of causation, provided that they are not inconsistent with the judgment on liability: Lunnun v Singh [1999] CPLR 587 and Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB).
28. Particular care is needed where there are several Defendants. Under CPR 12.9, the Court must consider whether the claim against the defaulting Defendant can properly be dealt with separately. That may not be possible where liability is alleged jointly, in the alternative, or through a common allegation such as conspiracy. Before seeking judgment against one Defendant, practitioners should therefore consider whether doing so could prejudice remaining claims against others, together with any practical consequences, including the prospects of enforcement.
Setting aside default judgment
CPR 13.2: was judgment wrongly entered?
29. Whenever instructed to set aside default judgment, the first question is whether it was properly entered. Check service, calculate the deadline for the Acknowledgment of Service and Defence, and establish precisely what was filed when judgment was entered.
30. Under CPR 13.2, the Court must set aside judgment if a condition in CPR 12.3 was not satisfied, or if the whole claim had been satisfied before judgment was entered. The merits of the proposed Defence are irrelevant. The application should instead identify expressly which condition was not met and the evidence which establishes that fact.
31. Invalid service must be distinguished from valid service which did not in fact come to the Defendant’s attention. In Akram v Adam [2004] EWCA Civ 1601, service in accordance with the CPR remained effective despite actual non-receipt. That scenario falls to be considered under CPR 13.3 rather than CPR 13.2.
32. Nor does every procedural defect make the judgment irregular. For example, a failure to provide the response pack may be relevant under CPR 13.3, but does not, without more, mean that the conditions in CPR 12.3 were not satisfied: Rajval Construction Ltd v Bestville Properties Ltd [2010] EWCA Civ 1621.
33. Delay does not remove the right to mandatory relief under CPR 13.2. Even so, an irregular judgment remains effective unless and until it is set aside. The application should therefore be made promptly. However, issuing the application does not itself stay enforcement, and so any request for a stay should be sought as part of the same Application Notice.
CPR 13.3: discretionary relief
34. Where judgment was regularly entered, the Court may set it aside or vary it if:
34.1 the Defendant has a real prospect of successfully defending the claim; or
34.2 there is some other good reason why judgment should be set aside or varied, or why the Defendant should be allowed to defend.
35. An arguable Defence is not enough. The Defendant must show a real, rather than fanciful, prospect of successfully defending the claim. The test is essentially the same as that applied on summary judgment. Providing a properly pleaded draft Defence, compliant with CPR 16.5, is often central to meeting that threshold. A mere outline of the intended case in a witness statement is unlikely to suffice.
36. “Some other good reason” is a separate ground. It may include actual non-receipt despite technically valid service, procedural unfairness, or even conduct by the Claimant which materially contributed to the default. For instance, in S T Shipping & Transport Inc v Vyzantio Shipping Ltd [2004] EWHC 3067 (Comm), the Claimant’s lengthy silence of 18 months created an impression that the claim was not being pursued and was a relevant factor in the exercise of the Court’s discretion.
37. CPR 13.3(2) expressly requires the Court to take account of whether the application was made promptly. There is no fixed period which will invariably be treated as prompt. The essential question is whether the Defendant acted with all reasonable speed in the circumstances.
38. In FXF v English Karate Federation Ltd [2023] EWCA Civ 891, the Court of Appeal confirmed that an application under CPR 13.3 is an application for relief from sanctions to which the Denton approach applies. Accordingly, the Court will first consider the specific matters in CPR 13.3, including the merits and promptness. If that threshold is crossed, the Court will then apply Denton:
38.1 the seriousness and significance of the default;
38.2 whether there was good reason for the default; and
38.3 all the circumstances of the case, including the factors identified in CPR 3.9.
39 The Defendant’s evidence must therefore explain clearly and candidly what actually happened: how and when the proceedings were received; what went wrong; when the problem was discovered; what was done in response; and why any delay occurred. General references to oversight, administrative error, or pressures of work are unlikely to assist unless the underlying events are explained. The evidence should also address any particular prejudice to the Claimant if judgment is set aside.
Procedure and costs
40. The application is made on Form N244. It should state whether relief is sought under CPR 13.2, CPR 13.3, or both. An application under CPR 13.3 must be supported by evidence. It should include:
40.1 a witness statement dealing with service, default, and any delay;
40.2 a properly pleaded draft Defence;
40.3 the key supporting documents; and
40.4 a draft Order dealing with the setting aside, the revised deadline for filing and service of the Defence, any stay of enforcement, consequential directions, and costs.
41. Defendants should be advised that, where default judgment was entered as a result of their default, they can usually expect to be ordered to pay the costs occasioned by that default, even if the application succeeds.
Conclusion
42. For Claimants, default judgment can look like an easy procedural win. Often it is. It would be unwise, however, to treat it as a foregone conclusion. The proceedings must be reviewed with care. It is not enough that the Defendant appears to be in default. Service must be valid and proven, the relevant period must have expired, the default judgment regime must apply to the claim and the relief sought, and the correct procedure must be used.
43. For Defendants seeking to set aside default judgment, CPR 13.2 should be considered first. If judgment was wrongly entered, the Court has no discretion and must set it aside. If not, the Defendant must persuade the Court under CPR 13.3 that a regularly obtained judgment should nevertheless be disturbed. A successful application requires a real prospect of successfully defending the claim or some other good reason. It should be made promptly and supported by evidence which addresses the Denton principles.
44. Default judgment, and the jurisdiction to set it aside, are useful and powerful procedural remedies. Whichever side one is acting for, close attention to service, timing, procedure, and evidence will often prove determinative.
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
