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Have you or your Company recently received a County Court Judgment that has been entered in Default? Do you have a Defence to the Claim? Can this Judgment be set aside? What do you do now? – firstly, you MUST act promptly.
Once proceedings have been issued, the general rule is that you have 14 days after service of the Particulars of claim to file an Acknowledgement of Service form and if this is filed you have 28 days after service to file your Defence.
If you have failed to file an Acknowledgement of Service or a Defence, a Claimant is entitled to enter Judgment against you in default.
The court must set aside a Judgment entered in default if the Judgment was wrongly entered either because the time for filing your Acknowledgment of Service or Defence has not expired or you have already satisfied the whole of the claim before the Judgment was entered (CPR 13.2). You therefore need to check whether the Claimant has complied with the Court rules before entering Judgment because, if not, the default Judgment may be irregular and may have to be set aside.
In Gulf International Bank BSC v Ekttitab Holding Company KSCC and another [2010] EWHC B30 (Comm.] the Court considered an application to set aside a judgment entered in default on the basis that the Claimant had breached Court rules. The Claimant had failed to file a Certificate of service and serve the Defendant with a Response Pack.
The Court decided that where a Judgment had been entered by default, this Judgment can and will be set aside where it is found that the Claimant has not complied with the Court rules relating to notice and certificate of service in relation to the Claim Form and response pack which must be served with the particulars of claim.
Where a claimant serves the claim form, he must within 21 days of service of the particulars of claim, file a certificate of service. The Claimant may not obtain Judgment in default unless they have filed a certificate of service. Mr Justice Simon stated in his Judgment that the words in the rules are clear and mandatory. The Claimant must file a certificate within 21 days and may not obtain Judgment in default if there is a failure to do so.
The Civil Procedure Rules require that when the Particulars of Claim or a claim form are served: 'They must be accompanied by – (a) a form for defending the claim; (b) a form for admitting the claim; and (c) a form for acknowledging service.' In this case, no Response pack was enclosed. Mr Justice Simon stated that compliance with this rule is mandatory.
The Response pack highlights the procedural steps, which must be taken to prevent Judgment being obtained in default. The Claimant obtained a Judgment in the absence of an acknowledgement of service and it was that very form which should have been included with the papers, which were served, but was not.If a Defendant is not provided with the very form, which tells them how to avoid a default Judgment being entered against them, then the Claimant is clearly in breach of his duty.
The first thing to determine therefore is whether the Claim form has been validly served and also, has the Claimant complied with the court rules on service.
Even if the Claimant has complied with the Court rules, the Court still can exercise their discretion and may set aside or vary a Judgment entered by default if you have a ‘real prospect of successfully defending the claim’ or ‘there is some other good reason why Judgment should be set aside or varied or you should be allowed to defend the claim (CPR Part 13.3).
The Court, in exercising their discretion, must consider whether the application to set aside the Judgment aside has been made promptly and therefore, you should always act quickly if you are faced with a Judgment in Default.
If you or your Company has had a County Court Judgment entered against you in default, Pearson Hinchliffe’s Commercial Litigation Team can help you weigh up your options. Contact solicitor, Laura Pracy, using the details provided below.
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