Default judgment is a binding judgment in favor of either party based on some failure
to take action by the other party.
Most often, it is a judgment in favor of a plaintiff when the defendant has not responded
to a summons or has failed to appear before a court of law.
The failure to take action is the default.
The default judgment is the relief requested in the party's original petition.
Default can be compared to a forfeit victory in sports.
In a civil trial involving damages, a default judgment will enter the amount of damages
pleaded in the original complaint.
If proof of damages is required, the court may schedule another hearing on that issue.
A party can have a default judgment vacated, or set aside, by filing a motion, after the
judgment is entered, by showing of a proper excuse.
Specific jurisdictions England and Wales
How judgment arises In England and Wales, a Claimant starts a
case by issuing a Claim Form.
This either states a monetary figure on it, together with fixed costs and court fees;
alternatively if the amount cannot be determined, it will be for an amount 'to be assessed'.
A Claimant may not wish to recover money at all, in which case the Claim Form states this.
The Claim Form are served on the Defendant.
If the Defendant fails to reply within 14 days of service, the Claimant can apply for
Judgment in Default, either by simply requesting the court's administrative staff enter judgment
filing a request for judgment, or by making a formal application to the Procedural Judge.
The judgment is known as Judgment in Default of Acknowledgment of Service.
If the Defendant did acknowledge to the court that the papers were served within the 14
day period, then the Defendant is given 28 days to take a further step.
If the Defendant fails to do so, again judgment can be entered as above; this time formally
known as Judgment in Default of Defense.
If money is claimed, the Claimant can choose how their judgment will be phrased.
Almost always there will be a request that the money claimed, the court fee, and interest
at 8% on the money from when the Claim Form was issued up until date of judgment, and
if legally represented a fixed contribution to legal costs, be ordered to be paid immediately.
However, the Claimant could simply request the Defendant be ordered to pay at a later
date or in installments.
If money is claimed but the amount is not fixed, a Disposal Hearing is listed to determine
the amount of money.
If any other remedy is claimed, the Claimant would have had to apply to the procedural
judge for the Judgment in Default, and therefore the Judge will determine what happens next.
Judgments in Default are covered by Part 12 of the Civil Procedure Rules 1998
Effect of judgment The judgment is binding and failure to comply
with it means that enforcement action could be taken.
The Defendant's name is also entered onto a register which is open to everyone, and
is particularly used to vet the credit-worthiness of people.
In the case of Masters -v- Leaver[1999]EWCA Civ 2016 [1] it was held that a judgment in
default means just that - it is a judgment obtained due to default.
It does not mean that the court has agreed with what was claimed, or favors one or other
case.
Therefore if the issue arises again, the Defendant is not prevented from arguing the facts again.
That case also refers to Texas and US law being similar, although of course the English
Court has no jurisdiction to determine that point.
Varying default judgment If a Defendant accepts the judgment, and the
amount, but is unable to pay, the Defendant may apply to Vary the judgment.
A process is gone through whereby the Defendant states how soon they can afford to pay the
debt and the Claimant can either accept this, or request another amount.
The court's staff will suggest a figure and ultimately a District Judge will make a decision.
The decision is binding, even if it means the Claimant is out of their money for a considerable
amount of time, and even if interest cannot be charged on the outstanding sum.
Setting aside default judgment There are three grounds for canceling the
Default judgment.
The documents were not served correctly.
The Defendant has to show that the documents were not served, which obviously would explain
why the Claimant had ability to enter judgment.
This has to be done by way of an 'Application on Notice'.
Evidence has to be shown to the procedural judge.
This used to be called setting aside an 'irregular judgment'
There is some good reason why judgment in default should be set aside.
This covers any situation but is commonly used when service was effected properly, but
still did not come to the attention of the Defendant.
Many jurisdictions also require the defendant to proffer a meritorious defense before vacating
the default judgment.
The Claimant entered judgment when they were not entitled so to do.
For example, perhaps a Defense was filed in time, but the Claimant still attempts to enter
judgment.
The court staff usually check for things like this, but occasionally things slip through
the net.
It used to be the obligation of the Claimant to apply to set aside their own judgment in
these circumstances, but this obligation has recently been dropped.
In the last circumstance of the above, the Defendant can get the judgment canceled as
of right.
Otherwise, the Defendant needs to show what their Defense will be, and if the court thinks
that the defendant is effectively 'stalling for time' they will not get the judgment set
aside.
Practice In practice an application to set aside Default
Judgment is almost always granted.
This fact is seized upon by so-called 'credit repair' companies.
A person whose credit record is adversely affected by a registered judgment pays a credit
repair company who advises them how to apply to have it set aside.
This is usually of little effect: the judgment will be re-entered very quickly if there is
no actual defense, and there are usually other records which affect a person's credit rating,
not just the judgment.
Pragmatic reasons why judgments are set aside are mainly because on balance, it is seen
as better to give a person who may have a good defense extra time, and avoid a potentially
devastating judgment, and thereby keep a claimant out of their money for a further two to four
weeks, than give the claimant the benefit.
However the court can, and often does, order conditions to be satisfied, such as a draft
defense being filed first, money paid into court, or similar conditions.
Setting aside Judgment in Default is covered by Part 13 of the Civil Procedure Rules.
United States In the United States the law relating to a
default judgment depends upon the jurisdiction within which the civil action was filed.
State courts, United States Federal Courts, Tribal Courts and many Administrative Agencies
have their own laws and local procedural rules relating to the granting and setting aside
of a default judgment.
The Federal Rules of Civil Procedure are the basis for many procedures in default.
Federal Rule 37(b)(iii) states that a balky plaintiff can be found in default and have
his case dismissed if the plaintiff repeatedly fails to comply with things like court orders
and discovery requests.
Entry of default Typically, the plaintiff must show that service
of process was effected on the defendant.
This is typically achieved by the filing of an affidavit of service, which gives enough
information to allow the court to confirm that valid service has been accomplished.
Typically the affidavit states, under oath or penalty of perjury, that service was effected
on a named defendant, briefly describes how it was effected, names the person who made
service, and gives the place and date service was effected.
Once the requisite time to respond to the complaint has passed, the defendant is "in
default"; this may be automatic, or it may require the court clerk to enter the default.
Some defaults do not take effect until a set period of time after the clerk acts.
The clerk may have to give the defendant notice of his default, affording a chance to have
the default vacated.
The entry of a default typically prevents the defaulted defendant from litigating his
case or presenting evidence, and may excuse the other parties from giving him notice of
further proceedings.
Relief from default A defaulted defendant may move the court from
relief from his default, but usually must do so promptly and must provide "good cause"
for his failure to answer the complaint in time.
Often, part of the procedure for relief from default involves the defendant filing an answer
to the complaint.
The defendant relieved from default may also be required to pay any extra costs and fees
incurred by the plaintiff as a result of the delay in the defendant's filing his answer.
Default judgment Often, a certain additional time is required
before a default judgment is permissible, and there may need to be additional notice
to the defendant.
Some states do not allow a default judgment to be entered against some defendants while
other defendants are actively litigating the same case; this is an application of the "one
final judgment" rule.
Others will allow "several judgment", at least under some circumstances.
United States law significantly restricts default judgments against members of the military
services.
The law requires that before a default judgment may be entered, the plaintiff must make a
certification as to the military service status of the defendant whose default is sought.
This certification may be made in the complaint, in a document filed with the proof of service,
or later.
Depending on the circumstances, other requirements may also apply.
Some jurisdictions allow a clerk of court to enter default judgment in certain simple
cases.
These typically involve no exercise of judgment or discretion.
Otherwise, a default judgment must be issued by a judge, who may require the plaintiff
to present proof of his claims.
Relief from default judgment A defendant who has had a default judgment
entered against him may move for an order vacating the judgment.
Such a defendant must show "good cause" for his not having responded to the complaint.
However, "good cause" is rather easy to meet, compared to other instances where "good cause"
might be required.
For example, mere "excusable neglect" is, at least at the federal level, a sufficient
reason to vacate default judgments.
There are often time limits and other requirements.
A court entertaining a motion to vacate a default judgment often considers the reasons
presented the defendant's failure to respond.
The court must weigh these factors in light of two competing considerations: the general
preference for cases to be decided "on the merits", and the important need for "finality
in litigation."
Notes
See also Judgment
European Enforcement Order External links
Civil Procedure Rules in the UK Lawsuit Updates: Town of Southampton in Default