We have reviewed the Commercial Court Guide references in this Quick Guide following the publication of the 8th edition of the Admiralty and Commercial Court Guide and have made no changes.
Default judgment is judgment by administrative act rather than by trial. It is a tactical weapon which a claimant can use for the early determination of a claim where a defendant fails to file an acknowledgement of service or a defence within the time limits prescribed by the court rules.
Different time periods apply for acknowledging service and serving a defence in the Commercial Court and if the claim is issued for service outside the jurisdiction (see Practice note, Default judgment: an overview, Relevant time limits for acknowledgement of service and defence (www.practicallaw.com/5-203-1177) and for the rules in the Commercial Court see CPR 58.8 and for the rules for service out of the jurisdiction, see CPR 6.35).
Default judgment does not apply to certain claims (CPR 12.2 and CPR 12.3, PD 12 para 1.3) and the procedure is modified for certain claims (see Practice note, Default judgment: an overview, Where the usual procedure for default judgment is modified (www.practicallaw.com/5-203-1177)).
A defendant cannot obtain a default judgment on a counterclaim against a claimant on the basis of failure to acknowledge service as CPR 10 does not apply to counterclaims.
Special rules apply if a defendant is a child, patient or state.
If a claimant serves the Claim Form, default judgment cannot be entered until a certificate of service is filed.
Default judgment will not be granted where a summary judgment or strike out application is pending.
Note the rules for when default judgment can be obtained against defendants sued in the alternative and those sued jointly or jointly and severally (see Practice note, Default judgment: an overview, Default judgment where there are two or more defendants (www.practicallaw.com/5-203-1177)).
CPR 12 governs default judgment generally.
CPR 20 governs default judgment for counterclaims and additional claims
CPR 58.8 contains the rules for default judgment in the Commercial Court.
Except in the Commercial Court, the claimant must serve particulars of claim before entering default judgment. The time for the defendant's response depends on the timing of service of the particulars of claim.
Except in the Commercial Court, a defendant must either file an acknowledgement of service or file and serve a defence within 14 days of service of the particulars of claim. If a defendant files an acknowledgement of service, then 28 days after service of the particulars of claim the defendant must file and serve a defence.
In the Commercial Court:
The defendant MUST serve an acknowledgement of service (PD 58.5.1).
If a defendant does not lodge an acknowledgement of service the claimant does not need to serve particulars of claim before entering default judgment (CPR 58.8 and PD 6).
Form N225 (www.practicallaw.com/2-372-0996) if the claim is for a specific amount of money or for delivery up where the defendant is given the alternative of paying a specific amount.
Form N227 (www.practicallaw.com/0-372-0997) if the claim is for a sum of money to be determined by the court.
No fee required.
Lodge request with the court.
Court will deal with the request on paper.
If requirements are made out, judgment will be entered (see Practice note, Default judgment: an overview: What will the court require in order for a request or an application for default judgment to succeed? (www.practicallaw.com/5-203-1177))
Form N244 (www.practicallaw.com/8-205-6543). See also Default judgment: application notice for default judgment (www.practicallaw.com/4-205-4310) and Default judgment: application notice: drafting note (www.practicallaw.com/8-205-3988) and Default judgment: order (www.practicallaw.com/8-205-4308) and Default judgment: order: drafting note (www.practicallaw.com/2-205-3991).
Form N244CC (www.practicallaw.com/9-205-6547) in Commercial Court.
Fee: see High Court fees: a quick guide (www.practicallaw.com/3-205-8040) for the latest court fees.
Notice of application must be given to the defendant (as soon as practicable after it is filed or at least three clear days before the hearing) unless the defendant has failed to lodge an acknowledgement of service or an exception underCPR 12.11(4) applies.
At the court hearing, if requirements are made out, judgment will be entered (see Practice note, Default judgment: an overview: What will the court require in order for a request or an application for default judgment to succeed? (www.practicallaw.com/5-203-1177)).
If you are the claimant or acting for the claimant, ensure that you calculate and diarise dates of service correctly (see Practice note, Service of the claim form and other documents: an overview (www.practicallaw.com/3-382-5813)). Before making an application for default judgment, ensure that service of the claim form was in accordance with the CPR.
The courts do not encourage tactical applications for default judgment. If you are the claimant or acting for the claimant, compare any tactical advantage you may gain by entering default judgment, with the alternative course of action of contacting the defendant to see if the default can be dealt with in accordance with the overriding objective. (For further information see Practice note, Setting aside a default judgment: What can a claimant do before and after a default judgment is set aside? (www.practicallaw.com/1-203-1179)).
If you are the defendant or acting for the defendant, diarise and review time periods for the acknowledgement of service and defence and ensure that you keep to them. If necessary, ask your opponent for more time and for confirmation that they will not enter default judgment. If a default judgment is entered against you or your client, act promptly to have it set aside. (For further information see Practice note, How can a defendant avoid a default judgment? (www.practicallaw.com/5-204-1402)).
If you would have to enforce a default judgment in a foreign jurisdiction, check that this is possible and, if not, consider the alternatives (see Practice note, Default judgment: an overview: Is a claimant obliged to obtain a default judgment in circumstances where it can be obtained? (www.practicallaw.com/5-203-1177)).