13 Judgment without trial

Question 1

r9.1(2): Responding to claim form

Answer 1

(2) Where the defendant receives a claim form which states that particulars of claim are to follow, he need not respond to the claim until the particulars of claim have been served on him.

Question 2

r7.4: When PoC are served

Answer 2

(1) Particulars of claim must –
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.

(2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form.

(3) Where the claimant serves particulars of claim separately from the claim form in accordance with paragraph (1)(b), the claimant must, within 7 days of service on the defendant, file a copy of the particulars except where –
(a) paragraph 5.2(4) of Practice Direction 7C applies; or
(b) paragraph 6.4 of Practice Direction 7E applies.

(Part 16 sets out what the particulars of claim must include)
(Part 22 requires particulars of claim to be verified by a statement of truth)

Question 3

r10.3(1): Period for filing AoS

Answer 3

(1) The general rule is that the period for filing an acknowledgment of service is –
(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and
(b) in any other case, 14 days after service of the claim form.

(2) The general rule is subject to the following rules
(a) rule 6.35 (how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction);
(b) rule 6.12(3) (requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and
(c) rule 6.37(5) (requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).

Question 4

r14.2: Period for making an admission

Answer 4

(1) The period for returning an admission under rule 14.4 or for filing it under rules 14.5, 14.6 or 14.7 is
(a) where the defendant is served with a claim form which states that particulars of claim will follow, 14 days after service of the particulars; and
(b) in any other case, 14 days after service of the claim form.

(2) Paragraph (1) is subject to the following rules–
(a) rule 6.35 (which specifies how the period for filing or returning an admission is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33); and
(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule).

(3) A defendant may return an admission under rule 14.4 or file it under rules 14.5, 14.6 or 14.7 after the end of the period for returning or filing it specified in paragraph (1) if the claimant has not obtained default judgment under Part 12.
(4) If he does so, this Part shall apply as if he had made the admission within that period

Question 5

r15.4: Period for filing defence

Answer 5

(1) The general rule is that the period for filing a defence is –
(a) 14 days after service of the particulars of claim; or
(b) if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.

(2) The general rule is subject to the following rules
(a) rule 6.35 (which specifies how the period for filing a defence is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);
(b) rule 11 (which provides that, where the defendant makes an application disputing the court’s jurisdiction, the defendant need not file a defence before the hearing);
(c) rule 24.4(2) (which provides that, if the claimant applies for summary judgment before the defendant has filed a defence, the defendant need not file a defence before the summary judgment hearing); and
(d) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule).

Question 6

PD15 para 1.3: Form for defence

Answer 6

Form N9B (specified amount) or N9D (unspecified amount or non-money claims) may be used for the purpose of defence and is included in the response pack served on the defendant with the particulars of claim.

Question 7

r9.2: Responding to PoC

Answer 7

When particulars of claim are served on a defendant, the defendant may –
(a) file or serve an admission in accordance with Part 14;
(b) file a defence in accordance with Part 15,
(or do both, if he admits only part of the claim); or
(c) file an acknowledgment of service in accordance with Part 10.

Question 8

PD16 para 10.7: What piece of information D to a claim must provided in the AoS, etc

Answer 8

Where a defendant to a claim or counterclaim is an individual, he must provide his date of birth (if known) in the acknowledgment of service, admission, defence, defence and counterclaim, reply or other response.

Question 9

PD10 para 5.3: If 2 or more Ds acknowledge service through same representative at same time

Answer 9

If two or more defendants to a claim acknowledge service of a claim through the same legal representative at the same time, only one acknowledgment of service need be used.

Question 10

r10.4: Notice to C that D filed AoS

Answer 10

On receipt of an acknowledgment of service, the court must notify the claimant in writing.

Question 11

r15.5: Agreement to extend filing of defence

Answer 11

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.
(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

Question 12

r11(1)/(4): Application to dispute court’s jurisdiction

Answer 12

(1) A defendant who wishes to –
(a) dispute the court’s jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

(4) An application under this rule must –
(a) be made within 14 days after filing an acknowledgment of service; and
(b) be supported by evidence.

Question 13

r11(6): Order if court doesn’t have jurisdiction

Answer 13

An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including –

(a) setting aside the claim form;
(b) setting aside service of the claim form;
(c) discharging any order made before the claim was commenced or before the claim form was served; and
(d) staying the proceedings.

Question 14

r11(7): If court doesn’t rule court has no jurisdiction

Answer 14

If on an application under this rule the court does not make a declaration –

(a) the acknowledgment of service shall cease to have effect;
(b) the defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct; and
(c) the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.

Question 15

r3.5A: Automatic transfer

Answer 15

(a) a claimant files a request for judgment which includes an amount of money to be decided by the court in accordance with rule 3.5; and
(b) the claim is a designated money claim,
the court will transfer the claim to the preferred court upon receipt of the request for judgment.

Question 16

r12.5A: Automatic transfer: default judgment

Answer 16

If –
(a) a claimant files a request for judgment which includes an amount of money to be decided by the court in accordance with rules 12.4 and 12.5; and
(b) the claim is a designated money claim,
the court will transfer the claim to the preferred court upon receipt of the request for judgment.

Question 17

r14.7A: Automatic transfer

Answer 17

If –
(a) a claimant files a request for judgment for an amount of money to be decided by the court in accordance with rule 14.6 or 14.7; and

(b) the claim is a designated money claim,

the court will transfer the claim to the preferred court.

Question 18

14.12(2A): Automatic transfer to determine time/rate of payment

Answer 18

Where the judge is to determine the time and rate of payment at a hearing, the proceedings will be transferred automatically to the preferred court if –

(a) the only claim is for a specified amount of money;
(b) the claim is a designated money claim;
(c) the defendant is not an individual; and
(d) the claim has not been transferred to another court.

Question 19

14.13(3A): Automatic transfer for re-detrermination of application

Answer 19

Where an application for re-determination is made, the proceedings will be transferred to the preferred court if –

(a) the only claim (apart from a claim for interest or costs) is for a specified amount of money;
(b) the claim is a designated money claim;
(c) the defendant is not an individual; and
(d) the claim has not been transferred to another court.

Question 20

26.2A: automatic transfer of designated money claims

Answer 20

(1) This rule applies where the claim is a designated money claim.
(2) If at any time before the service of a notice by the court under rule 26.3(1A) a proper officer considers that the claim should be referred to a judge for directions, the proper officer may transfer the proceedings to the preferred court or the defendant’s home court as appropriate.
(3) Subject to paragraph (5), if the defendant is an individual and the claim is for a specified sum of money, the court will, at the relevant time, transfer the claim to the defendant’s home court (save that where there are two or more defendants, one or more of whom are individuals, the court will transfer the claim to the home court of the defendant who first files his defence).
(4) Subject to paragraph (5), in any other claim to which this rule applies, the court will, at the relevant time, transfer the claim to the preferred court.
(5) If a defendant under paragraph (3) or a claimant under paragraph (4) has specified a court other than the preferred court on their directions questionnaire, the court will transfer the claim to that court.

(6) The relevant time for the purposes of this rule is when –
(a) all parties have filed their directions questionnaires;
(b) any stay ordered by the court or period to attempt settlement through mediation has expired; or
(c) if the claim falls within Practice Direction 7D –
(i) the defence is filed; or
(ii) enforcement of a default judgment other than by a warrant of execution is requested,
whichever occurs first.

Question 21

r26.2: automatic transfer, generally

Answer 21

This rule applies where rule 26.2A does not apply.

(1) This rule applies to proceedings where –
(a) the claim is for a specified amount of money;
(b) the claim was commenced in a court which is not the defendant’s home court;
(c) the claim has not been transferred to another defendant’s home court; and
(d) the defendant is an individual.

(2) This rule does not apply where the claim was commenced in a specialist list.
(3) Where this rule applies, the court will transfer the proceedings to the defendant’s home court when a defence is filed, unless paragraph (4) applies.
(4) Where the claimant notifies the court under rule 15.10 or rule 14.5 that he wishes the proceedings to continue, the court will transfer the proceedings to the defendant’s home court when it receives that notification from the claimant.

(5) Where –
(a) the claim is against two or more defendants with different home courts; and
(b) the defendant whose defence is filed first is an individual,
proceedings are to be transferred under this rule to the home court of that defendant.

(6) The time when a claim is automatically transferred under this rule may be varied by a practice direction in respect of claims issued by the Production Centre.

Question 22

r1.4: Court’s duty to manage costs

Answer 22

(1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

Question 23

r60.4: Where to issue TCC claims

Answer 23

A TCC claim must be issued in –

(a) the High Court in London;
(b) a district registry of the High Court; or
(c) a county court specified in Practice Direction 60.

Question 24

PD60 para 3.2: Heading for TCC claims

Answer 24

The claim form must be marked in the top right hand corner ‘Technology and Construction Court’ below the words ‘The High Court, Queen’s Bench Division’ or ‘The _____ County Court’.

Question 25

PD60 para 8.1: Timing of CMC in TCC

Answer 25

The court will fix a case management conference within 14 days of the earliest of these events –

(1) the filing of an acknowledgment of service;
(2) the filing of a defence; or
(3) the date of an order transferring the claim to a TCC.

Question 26

r61.3: Admiralty Court: Claim in rem

Answer 26

(1) This rule applies to claims in rem.
(2) A claim in rem is started by the issue of an in rem claim form as set out in Practice Direction 61.

(3) Subject to rule 61.4, the particulars of claim must –
(a) be contained in or served with the claim form; or
(b) be served on the defendant by the claimant within 75 days after service of the claim form.

(4) An acknowledgment of service must be filed within 14 days after service of the claim form.

(5) The claim form must be served –
(a) in accordance with Practice Direction 61; and
(b) within 12 months after the date of issue and rules 7.5 and 7.6 are modified accordingly.

(6) If a claim form has been issued (whether served or not), any person who wishes to defend the claim may file an acknowledgment of service.

Question 27

61.9(1): Admiralty Court: judgment in default (in rem)

Answer 27

(1) In a claim in rem (other than a collision claim) the claimant may obtain judgment in default of –
(a) an acknowledgment of service only if –
(i) the defendant has not filed an acknowledgment of service; and
(ii) the time for doing so set out in rule 61.3(4) has expired; and
(b) defence only if –
(i) a defence has not been filed; and
(ii) the relevant time limit for doing so has expired.

Question 28

58.5: Commercial Court: Claim form and PoC

Answer 28

(1) If, in a Part 7 claim, particulars of claim are not contained in or served with the claim form –
(a) the claim form must state that, if an acknowledgment of service is filed which indicates an intention to defend the claim, particulars of claim will follow;
(b) when the claim form is served, it must be accompanied by the documents specified in rule 7.8(1);
(c) the claimant must serve particulars of claim within 28 days of the filing of an acknowledgment of service which indicates an intention to defend; and
(d) rule 7.4(2) does not apply.

(2) A statement of value is not required to be included in the claim form.

(3) If the claimant is claiming interest, he must –
(a) include a statement to that effect; and
(b) give the details set out in rule 16.4(2),
in both the claim form and the particulars of claim.

Question 29

58.6: Commercial Court: AoS

Answer 29

(1) A defendant must file an acknowledgment of service in every case.
(2) Unless paragraph (3) applies, the period for filing an acknowledgment of service is 14 days after service of the claim form.
(3) Where the claim form is served out of the jurisdiction, or on the agent of a defendant who is overseas, the time periods provided by rules 6.12(3), 6.35 and 6.37(5) apply after service of the claim form.

Question 30

58.8: Commercial Court: Default judgment

Answer 30

(1) If, in a Part 7 claim in the commercial list, a defendant fails to file an acknowledgment of service, the claimant need not serve particulars of claim before he may obtain or apply for default judgment in accordance with Part 12.
(2) Rule 12.6(1) applies with the modification that paragraph (a) shall be read as if it referred to the claim form instead of the particulars of claim.

Question 31

r12.3: Conditions for default judgment

Answer 31

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.

(2) Judgment in default of defence may be obtained only –
(a) where an acknowledgement of service has been filed but a defence has not been filed;
(b) in a counterclaim made under rule 20.4, where a defence has not been filed,
and, in either case, the relevant time limit for doing so has expired.

(3) The claimant may not obtain a default judgment if –
(a) the defendant has applied –
(i) to have the claimant’s statement of case struck out under rule 3.4; or
(ii) for summary judgment under Part 24,
and, in either case, that application has not been disposed of;
(b) the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment;
(c)
(i) the claimant is seeking judgment on a claim for money; and
(ii) the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all of the money claimed) together with a request for time to pay; or

(d) notice has been given under rule 82.21 of a person’s intention to make an application for a declaration under section 6 of the Justice and Security Act 2013 in relation to the proceedings, and that application has not been disposed of.

Question 32

59.5: Mercantile Court: AoS

Answer 32

(1) A defendant must file an acknowledgment of service in every case.
(2) Unless paragraph (3) applies, the period for filing an acknowledgment of service is 14 days after service of the claim form.
(3) Where the claim form is served out of the jurisdiction, or on the agent of a defendant who is overseas, the time periods provided by rules 6.12(3), 6.35 and 6.37(5) apply after service of the claim form.

Question 33

r59.7: Mercantile Court: Default judgment

Answer 33

(1) Part 12 applies to mercantile claims, except that rules 12.10 and 12.11 apply as modified by paragraphs (2) and (3) of this rule.
(2) If, in a Part 7 claim –
(a) the claim form has been served but no particulars of claim have been served; and
(b) the defendant has failed to file an acknowledgment of service,
the claimant must make an application if he wishes to obtain a default judgment.
(3) The application may be made without notice, but the court may direct it to be served on the defendant.

Question 34

r12.2: Claims where default judgment can’t be obtained

Answer 34

A claimant may not obtain a default judgment –

(a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 19741;
(b) where he uses the procedure set out in Part 8 (alternative procedure for claims); or
(c) in any other case where a practice direction provides that the claimant may not obtain default judgment.

Question 35

PD12 para 1.1-1.3: When default judgment can be used

Answer 35

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.

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

Question 36

14.4: Admission of the whole claim for specified amount of money

Answer 36

(1) This rule applies where –
(a) the only remedy which the claimant is seeking is the payment of a specified amount of money; and
(b) the defendant admits the whole of the claim.

(2) The defendant may admit the claim by returning to the claimant an admission in the relevant practice form.

(3) The claimant may obtain judgment by filing a request in the relevant practice form and, if he does so –
(a) if the defendant has not requested time to pay, the procedure in paragraphs (4) to (6) will apply;
(b) if the defendant has requested time to pay, the procedure in rule 14.9 will apply.

(4) The claimant may specify in his request for judgment–
(a) the date by which the whole of the judgment debt is to be paid; or
(b) the times and rate at which it is to be paid by instalments.

(5) On receipt of the request for judgment the court will enter judgment.

(6) Judgment will be for the
amount of the claim (less any payments made) and costs –
(a) to be paid by the date or at the rate specified in the request for judgment; or
(b) if none is specified, immediately.

(Rule 14.14 deals with the circumstances in which judgment under this rule may include interest)

Question 37

14.7: Admission of liability in unspecified amount claim

Answer 37

(1) This rule applies where –
(a) the only remedy which the claimant is seeking is the payment of money;
(b) the amount of the claim is not specified; and
(c) the defendant –
(i) admits liability; and
(ii) offers to pay a specified amount of money in satisfaction of the claim.

(2) The defendant may admit the claim by filing an admission in the relevant practice form.
(3) On receipt of the admission, the court will serve a notice on the claimant requiring him to return the notice stating whether or not he accepts the amount in satisfaction of the claim.
(4) If the claimant does not file the notice within 14 days after it is served on him, the claim is stayed until he files the notice.

(5) If the claimant accepts the offer he may obtain judgment by filing a request in the relevant practice form and if he does so–
(a) if the defendant has not requested time to pay, the procedure in paragraphs (6) to (8) will apply;
(b) if the defendant has requested time to pay, the procedure in rule 14.9 will apply.

(6) The claimant may specify in his request for judgment–
(a) the date by which the whole of the judgment debt is to be paid; or
(b) the times and rate at which it is to be paid by instalments.

(7) On receipt of the request for judgment, the court will enter judgment.

(8) Judgment will be for the amount offered by the defendant (less any payments made) and costs –
(a) to be paid on the date or at the rate specified in the request for judgment; or
(b) if none is specified, immediately.

(9) If the claimant does not accept the amount offered by the defendant, he may obtain judgment by filing a request in the relevant practice form.
(10) Judgment under paragraph (9) will be for an amount to be decided by the court and costs.

Question 38

r6.17(1)/(2): Notice and certificate of service of claim form (general)

Answer 38

(1) Where the court serves a claim form, the court will send to the claimant a notice which will include the date on which the claim form is deemed served under rule 6.14.

(2) Where the claimant serves the claim form, the claimant –
(a) must file a certificate of service within 21 days of service of the particulars of claim, unless all the defendants to the proceedings have filed acknowledgments of service within that time; and
(b) may not obtain judgment in default under Part 12 unless a certificate of service has been filed.

Question 39

PD12 para 4.1: default judgment: general rule on evidence required

Answer 39

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.

Question 40

r12.10: Default judgment through an application

Answer 40

The claimant must make an application in accordance with Part 23 where –

(a) the claim is –
(i) a claim against a child or protected party; or
(ii) a claim in tort by one spouse or civil partner against the other.
(b) the claimant wishes to obtain a default judgment where the defendant has failed to file an acknowledgment of service –
(i) against a defendant who has been served with the claim out of the jurisdiction under rule 6.32(1), 6.33(1) or 6.33(2); (service where permission of the court is not required under the Civil Jurisdiction and Judgments Act 19824);
(ii) against a defendant domiciled in Scotland or Northern Ireland or in any other Convention territory or Member State;
(iii) against a State;
(iv) against a diplomatic agent who enjoys immunity from civil jurisdiction by virtue of the Diplomatic Privileges Act 19645; or
(v) against persons or organisations who enjoy immunity from civil jurisdiction pursuant to the provisions of the International Organisations Acts 1968 and 19816.

Question 41

PD12 para 4.3: Default judgment on party outside jurisdiction

Answer 41

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 Lugano Convention 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 the Lugano Convention 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 to the Act, Article 26 of the Lugano Convention, paragraph 15 of Schedule 4 to the Act, or Article 26 of the Judgments Regulation.

Question 42

PD12 para 4.5: Form of evidence for default judgment against /party out of jurisdiction or a State

Answer 42

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

Question 43

PD12 para 4.2: Default judgment against protected party

Answer 43

On an application against a child or protected party:

(1) a litigation friend 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.

Question 44

r12.9: Procedure for default judgment, costs only

Answer 44

(1) Where a claimant wishes to obtain a default judgment for costs only –
(a) if the claim is for fixed costs, he may obtain it by filing a request in the relevant practice form;
(b) if the claim is for any other type of costs, he must make an application in accordance with Part 23.
(2) Where an application is made under this rule for costs only, judgment shall be for an amount to be decided by the court.
(Part 45 sets out when a claimant is entitled to fixed costs)

Question 45

PD12 para 4.6: Evidence for default judgment for delivery up of goods

Answer 45

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.

Question 46

r12.11: Supplementary provisions for default judgment

Answer 46

(1) Where the claimant makes an application for a default judgment, judgment shall be such judgment as it appears to the court that the claimant is entitled to on his statement of case.
(2) Any evidence relied on by the claimant in support of his application need not be served on a party who has failed to file an acknowledgment of service.
(3) An application for a default judgment on a claim against a child or protected party or a claim in tort between spouses or civil partners must be supported by evidence.

(4) An application for a default judgment may be made without notice if –
(a) the claim under the Civil Jurisdiction and Judgments Act 1982 or the Lugano Convention or the Judgments Regulation, was served in accordance with rules 6.32(1), 6.33(1) or 6.33(2) as appropriate;
(b) the defendant has failed to file an acknowledgment of service; and
(c) notice does not need to be given under any other provision of these Rules.

(5) Where an application is made against a State for a default judgment where the defendant has failed to file an acknowledgment of service –
(a) the application may be made without notice, but the court hearing the application may direct that a copy of the application notice be served on the State;
(b) if the court –
(i) grants the application; or
(ii) directs that a copy of the application notice be served on the State,
the judgment or application notice (and the evidence in support) may be served out of the jurisdiction without any further order;
(c) where paragraph (5)(b) permits a judgment or an application notice to be served out of the jurisdiction, the procedure for serving the judgment or the application notice is the same as for serving a claim form under Section III of Part 6 except where an alternative method of service has been agreed under section 12(6) of the State Immunity Act 19787.

(6) For the purposes of this rule and rule 12.10 –
(a) ‘domicile’ is to be determined –
(i) in relation to a Convention territory, in accordance with sections 41 to 46 of the Civil Jurisdiction and Judgments Act 1982;
(ii) in relation to a Member State, in accordance with the Judgments Regulation and paragraphs 9 to 12 of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001;
(b) ‘Convention territory’ means the territory or territories of any Contracting State…;
(c) ‘State’ has the meaning given by section 14 of the State Immunity Act 1978;
(d) ‘Diplomatic agent’ has the meaning given by Article 1(e) of Schedule 1 to the Diplomatic Privileges Act 1964; and
(e) ‘the Judgments Regulation’ means Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ….
(f) ‘the Lugano Convention’ means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation, the Kingdom of Denmark…

Question 47

PD12 para 5.1: Notice requirement for default judgment

Answer 47

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

Question 48

r12.5: Nature of judgment through a request

Answer 48

(1) Where the claim is for a specified sum of money, the claimant may specify in a request filed under rule 12.4(1) –
(a) the date by which the whole of the judgment debt is to be paid; or
(b) the times and rate at which it is to be paid by instalments.

(2) Except where paragraph (4) applies, a default judgment on a claim for a specified amount of money obtained on the filing of a request, will be judgment for the amount of the claim (less any payments made) and costs –
(a) to be paid by the date or at the rate specified in the request for judgment; or
(b) if none is specified, immediately.
(Interest may be included in a default judgment obtained by filing a request if the conditions set out in Rule 12.6 are satisfied)

(3) Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for an amount to be decided by the court and costs.

(4) Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be judgment requiring the defendant to –
(a) deliver the goods or (if he does not do so) pay the value of the goods as decided by the court (less any payments made); and
(b) pay costs.

(5) The claimant’s right to enter judgment requiring the defendant to deliver goods is subject to rule 40.14 (judgment in favour of certain part owners relating to the detention of goods).

Question 49

PD26 para 12.2: Directions in a relevant order (including default judgment)

Answer 49

(1) When the court makes a relevant order it will give directions, which may include –
(a) listing the claim for a disposal hearing;
(b) allocating or re-allocating the claim (but see paragraph 12.3);
c) directing the parties to file directions questionnaires by a specified date; and
(d) staying the claim while the parties try to settle the case by alternative dispute resolution or other means.
(2) Directions may specify the level or type of judge before whom a hearing or a further hearing will take place and the nature and purpose of that hearing.
(3) Where the parties apply for a relevant order by consent, they should if possible file with their draft consent order agreed directions for the court’s approval.

Question 50

r12.7: procedure for deciding amount or value in default judgment

Answer 50

(1) This rule applies where the claimant obtains a default judgment on the filing of a request under rule 12.4(1) and judgment is for –
(a) an amount of money to be decided by the court;
(b) the value of goods to be decided by the court; or
(c) an amount of interest to be decided by the court.

(2) Where the court enters judgment it will –
(a) give any directions it considers appropriate; and
(b) if it considers it appropriate, allocate the case.

Question 51

PD26 para 12.4: Disposal hearings

Answer 51

(1) A disposal hearing is a hearing –
(a) which will not normally last longer than 30 minutes, and
(b) at which the court will not normally hear oral evidence.

(2) At a disposal hearing the court may –
(a) decide the amount payable under or in consequence of the relevant order and give judgment for that amount; or
(b) give directions as to the future conduct of the proceedings.

(3) If the claim has been allocated to the small claims track, or the court decides at the disposal hearing to allocate it to that track, the court may treat the disposal hearing as a final hearing in accordance with Part 27.
(4) Rule 32.6 applies to evidence at a disposal hearing unless the court directs otherwise.
(5) Except where the claim has been allocated to the small claims track, the court will not exercise its power under sub-paragraph (2)(a) unless any written evidence on which the claimant relies has been served on the defendant at least 3 days before the disposal hearing.

Question 52

12.4: Procedure for obtaining default judgment

Answer 52

(1) Subject to paragraph (2), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for –
(a) a specified amount of money;
(b) an amount of money to be decided by the court;
(c) delivery of goods where the claim form gives the defendant the alternative of paying their value; or
(d) any combination of these remedies.

(2) The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment –
(a) on a claim which consists of or includes a claim for any other remedy; or
(b) where rule 12.9 or rule 12.10 so provides,
and where the defendant is an individual, the claimant must provide the defendant’s date of birth (if known) in Part C of the application notice.

(3) Where a claimant –
(a) claims any other remedy in his claim form in addition to those specified in paragraph (1); but
(b) abandons that claim in his request for judgment,
he may still obtain a default judgment by filing a request under paragraph (1).

(4) In civil proceedings against the Crown, as defined in rule 66.1(2), a request for a default judgment must be considered by a Master or district judge, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown in accordance with section 18 of the Crown Proceedings Act 1947 and rule 6.10.

Question 53

r32.6: Evidence in proceedings other than trial

Answer 53

(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.
(2) At hearings other than the trial, a party may, rely on the matters set out in –
(a) his statement of case; or
(b) his application notice, if the statement of case or application notice is verified by a statement of truth.

Question 54

PD26 para 12.6: judge jurisdiction to decide amount payable under relevant order (including default judgments)

Answer 54

Unless the court otherwise directs, a Master or a district judge may decide the amount payable under a relevant order irrespective of the financial value of the claim and of the track to which the claim may have been allocated.

Question 55

r13.2: Cases Court MUST set aside judgment

Answer 55

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
(c) the whole of the claim was satisfied before judgment was entered.

Question 56

r13.3: Cases where the court MAY set aside judgment

Answer 56

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order)
(Article 19(4) of the Service Regulation (which has the same meaning as in rule 6.31(e)) applies to applications to appeal a judgment in default when the time limit for appealing has expired.)

Question 57

Thorn plc v MacDonald principles

Answer 57

• while length of delay in making application must be taken into account, any pre-action delay is irrelevant
• any failure by D to provide a good explanation for the delay is a factor to be taken into account but is not always a reason to refuse to set aside
• primary considerations are whether there’s a defence with a real prospect of success and that justice should be done (see below for discussion of ‘real prospect of success’)
• prejudice (or absence thereof) to the claimant

Question 58

r6.14: Deemed service

Answer 58

A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).

Question 59

r3.1(3): Conditions when making an order

Answer 59

When the court makes an order, it may –

(a) make it subject to conditions, including a condition to pay a sum of money into court; and
(b) specify the consequence of failure to comply with the order or a condition.

Question 60

r15.11: If claim not defended/admitted

Answer 60

(1) Where –
(a) at least 6 months have expired since the end of the period for filing a defence specified in rule 15.4;
(b) no defendant has served or filed an admission or filed a defence or counterclaim; and
(c) the claimant has not entered or applied for judgment under Part 12 (default judgment), or Part 24 (summary judgment),
the claim shall be stayed.

(2) Where a claim is stayed under this rule any party may apply for the stay to be lifted.

Question 61

PD15 para 3.4: if defence delayed

Answer 61

The application should be made in accordance with Part 23 and should give the reason for the applicant’s delay in proceeding with or responding to the claim.

Question 62

PD26 para 12.1: definitions, including relevant order

Answer 62

(1) In the following paragraphs –
(a) a ‘relevant order’ means a judgment or order of the court which requires the amount of money to be paid by one party to another to be decided by the court; and
(b) a ‘disposal hearing’ means a hearing in accordance with paragraph 12.4.

(2) A relevant order may have been obtained:
(a) by a judgment in default under Part 12;
(b) by a judgment on an admission under Part 14;
(c) on the striking out of a statement of case under Part 3;
(d) on a summary judgment application under Part 24;
(e) on the determination of a preliminary issue or on a trial as to liability; or
(f) at trial.

(3) A relevant order includes any order for the amount of a debt, damages or interest to be decided by the court (including an order for the taking of an account or the making of an inquiry as to any sum due, and any similar order), but does not include an order for the assessment of costs.

Question 63

PD26 para 12.3: allocation regarding a relevant order

Answer 63

(1) If, when the court makes a relevant order –
(a) the claim has not previously been allocated to a track; and
(b) the financial value of the claim (determined in accordance with Part 26) is such that the claim would, if defended be allocated to the small claims track,
the court will normally allocate it to that track.

(2) Where paragraph (1)(b) does not apply, the court will not normally allocate the claim to a track (other than the small claims track) unless –
(a) the amount payable appears to be genuinely disputed on substantial grounds; or
(b) the dispute is not suitable to be dealt with at a disposal hearing.

Question 64

PD3A para 1.7: No real prospect of success shown without trial

Answer 64

A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

Question 65

r24.4: Procedure for summary judgment

Answer 65

(1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed –
(a) an acknowledgement of service; or
(b) a defence,
unless –
(i) the court gives permission; or
(ii) a practice direction provides otherwise.

(1A) In civil proceedings against the Crown, as defined in rule 66.1(2), a claimant may not apply for summary judgment until after expiry of the period for filing a defence specified in rule 15.4.

(2) If a claimant applies for summary judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing.

(3) Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days’ notice of –
(a) the date fixed for the hearing; and
(b) the issues which it is proposed that the court will decide at the hearing.

(4) A practice direction may provide for a different period of notice to be given.

Question 66

PD26 para 5.1-5.5 (especially 5.3): When to make summary judgment application

Answer 66

5.1 Part of the court’s duty of active case management is the summary disposal of issues which do not need full investigation and trial (rule 1.4(2)(c)),

5.2 The court’s powers to make orders to dispose of issues in that way include:
(a) under rule 3.4, striking out a statement of case, or part of a statement of case, and
(b) under Part 24, giving summary judgment where a claimant or a defendant has no reasonable prospect of success.
The court may use these powers on an application or on its own initiative. Practice Direction 24 contains further information.

5. 3
   (1) A party intending to make such an application should do so before or when filing his directions questionnaire.
   (2) Where a party makes an application for such an order before a claim has been allocated to a track the court will not normally allocate the claim before the hearing of the application.
   (3) Where a party files an directions questionnaire stating that he intends to make such an application but has not done so, the judge will usually direct that an allocation hearing is listed.
   (4) The application may be heard at that allocation hearing if the application notice has been issued and served in sufficient time.
6. 4
   (1) This paragraph applies where the court proposes to make such an order of its own initiative.
   (2) The court will not allocate the claim to a track but instead it will either:
   (a) fix a hearing, giving the parties at least 14 days’ notice of the date of the hearing and of the issues which it is proposed that the court will decide, or
   (b) make an order directing a party to take the steps described in the order within a stated time and specifying the consequence of not taking those steps.
7. 5 Where the court decides at the hearing of an application or a hearing fixed under paragraph 5.4(2)(a) that the claim (or part of the claim) is to continue it may:
   (1) treat that hearing as an allocation hearing, allocate the claim and give case management directions, or
   (2) give other directions.

Question 67

PD23A para 2.7: General rule about when application should be made

Answer 67

Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

Question 68

r24.3: types of proceedings for summary judgment

Answer 68

(1) The court may give summary judgment against a claimant in any type of proceedings.
(2) The court may give summary judgment against a defendant in any type of proceedings except –
(a) proceedings for possession of residential premises against –
(i) a mortgagor; or
(ii) a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 19772 or the Housing Act 19883 and;
(b) proceedings for an admiralty claim in rem.

Question 69

r25.3: How to apply for interim remedy

Answer 69

(1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) An application for an interim remedy must be supported by evidence, unless the court orders otherwise.
(3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given.

(Part 3 lists general powers of the court)
(Part 23 contains general rules about making an application)

Question 70

r24.5: evidence for summary judgment hearing

Answer 70

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –
(a) file the written evidence; and
(b) serve copies on every other party to the application,
at least 7 days before the summary judgment hearing.

(2) If the applicant wishes to rely on written evidence in reply, he must –
(a) file the written evidence; and
(b) serve a copy on the respondent,
at least 3 days before the summary judgment hearing.

(3) Where a summary judgment hearing is fixed by the court of its own initiative –
(a) any party who wishes to rely on written evidence at the hearing must –
(i) file the written evidence; and
(ii) unless the court orders otherwise, serve copies on every other party to the proceedings,
at least 7 days before the date of the hearing;
(b) any party who wishes to rely on written evidence at the hearing in reply to any other party’s written evidence must –
(i) file the written evidence in reply; and
(ii) unless the court orders otherwise serve copies on every other party to the proceedings,
at least 3 days before the date of the hearing.

(4) This rule does not require written evidence –
(a) to be filed if it has already been filed; or
(b) to be served on a party on whom it has already been served.

Question 71

PD24 para 2(2)-(6): Procedure for making an application for summary judgment

Answer 71

(2) The application notice must include a statement that it is an application for summary judgment made under Part 24.

(3) The application notice or the evidence contained or referred to in it or served with it must –
(a) identify concisely any point of law or provision in a document on which the applicant relies, and/or
(b) state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates,
and in either case state that the applicant knows of no other reason why the disposal of the claim or issue should await trial.

(4) Unless the application notice itself contains all the evidence (if any) on which the applicant relies, the application notice should identify the written evidence on which the applicant relies. This does not affect the applicant’s right to file further evidence under rule 24.5(2).
(5) The application notice should draw the attention of the respondent to rule 24.5(1).
(6) Where the claimant has failed to comply with Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol, an action for summary judgment will not normally be entertained before the defence has been filed or, alternatively, the time for doing so has expired.

Question 72

PD24 para 5.1 and 5.2: Orders the court may make in relation to summary judgment

Answer 72

The orders the court may make on an application under Part 24 include:

(1) judgment on the claim,
(2) the striking out or dismissal of the claim,
(3) the dismissal of the application,
(4) a conditional order.

5. 2 A conditional order is an order which requires a party:
   (1) to pay a sum of money into court, or
   (2) to take a specified step in relation to his claim or defence, as the case may be, and provides that that party’s claim will be dismissed or his statement of case will be struck out if he does not comply.

Question 73

r24.2: Grounds for summary judgment

Answer 73

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

(Rule 3.4 makes provision for the court to strike out a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)

Question 74

PD24 para 4: Court approach to summary judgment

Answer 74

Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order, as described below.

Question 75

PD24 para 10: Summary judgment case management

Answer 75

Where the court dismisses the application or makes an order that does not completely dispose of the claim, the court will give case management directions as to the future conduct of the case.

Question 76

r24.6: Court power when determining summary judgment

Answer 76

When the court determines a summary judgment application it may –

(a) give directions as to the filing and service of a defence;
(b) give further directions about the management of the case.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order)

Question 77

PD24 para 7.1-7.3: Specific performance - summary judgment

Answer 77

7.1
(1) If a remedy sought by a claimant in his claim form includes a claim –
(a) for specific performance of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or charge of any property, or for the grant or assignment of a lease or tenancy of any property, with or without an alternative claim for damages, or
(b) for rescission of such an agreement, or
(c) for the forfeiture or return of any deposit made under such an agreement,
the claimant may apply under Part 24 for judgment.
(2) The claimant may do so at any time after the claim form has been served, whether or not the defendant has acknowledged service of the claim form, whether or not the time for acknowledging service has expired and whether or not any particulars of claim have been served.

7. 2 The application notice by which an application under paragraph 7.1 is made must have attached to it the text of the order sought by the claimant.
8. 3 The application notice and a copy of every affidavit or witness statement in support and of any exhibit referred to therein must be served on the defendant not less than 4 days before the hearing of the application. (Note – Rule 24.5 cannot apply.)