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Encyclopedia > Default judgment
Civil Procedure
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Default judgment is a binding judgment in favor of the plaintiff when the defendant has not responded to a summons or has failed to appear before a court. Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a civil action). These rules govern how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or... The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ... The Civil Procedure Rules 1998 came into force in England & Wales on 26 April 1999, largely replacing and significantly overhauling the previous Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. ... Civil procedure doctrines are rules developed by case law as opposed to being set down in codes or legislation, which, together with Court Rules / Codes, define the steps that a person involved in a civil lawsuit can, may, or can not take. ... In law, jurisdiction refers to the aspect of a any unique legal authority as being localized within boundaries. ... Subject matter jurisdiction is a legal term used in civil procedure to indicate that a case must be entered in the proper court of law based on the nature of the claim. ... Personal jurisdiction, jurisdiction of (or over) the person, or jurisdiction in personam is the power of a court to require a party (usually the defendant) or a witness to come before the court. ... Proper venue is one requirement for a court to be able to hear a case. ... In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ... Service of process is the term given to legal notice of a court or administrative bodys exercise of its jurisdiction over individuals who are the subject of proceedings or actions brought before such court, body or other tribunal. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ... In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint. ... In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. ... An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. ... The reply is a response by plaintiff to defedants answer. ... In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for... In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of evidence and help to determine in advance what facts will be presented at any trial in the case. ... Summary judgment in U.S. legal practice is a judgment awarded by the court prior to trial, based upon the courts finding that: (1) there are no issues of material fact requiring a trial for their resolution, and (2) in applying the law to the undisputed facts, one party... Voluntary dismissal is when a law suit is terminated by request of the plaintiff (the party originally bringing the suit to court). ... Involuntary dismissal is the termination of a court case despite the plaintiffs objection. ... A settlement is a contract that is one possible result when parties sue (or contemplate so doing) each other in civil courts, usually seeking money as reparations for the alleged wrongdoing of the defendants. ... In legal parlance, a trial is an event in which parties to a dispute present information (in the form of evidence) in a formal setting, usually a court, before a judge, jury, or other designated finder of fact, in order to achieve a resolution to their dispute. ... A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ... In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. ... A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ... Judgment as a matter of law(JMOL) is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. ... Renewed judgment as a matter of law (JMOL) is the partner of judgment as a matter of law in American Federal courts. ... Judgment notwithstanding the verdict, or J.N.O.V. for short (English Judgment + Latin Non Obstante Veredicto) is the practice in American courts whereby the presiding judge in a civil case may overrule the decision of a jury and reverse or amend their verdict. ... In law, a motion to set aside judgment is an application to overturn or set aside a courts judgment, verdict or other final ruling in a case. ... It has been suggested that this article or section be merged with Trial de novo. ... In law, a Judicial remedy is the means by which a court, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order. ... An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority. ... A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ... A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... A summons is a legal document issued by a court addressed to a defendant in a legal proceeding. ... A court is an official, public forum which a sovereign establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. ...


In a civil trial involving damages, a default judgment will enter the amount of damages plead in the original complaint. If proof of damages is required, the court may schedule another hearing on that issue. Civil law has at least three meanings. ... In law, damages refers either to the harm suffered by a plaintiff in a civil action, or to the money paid or awarded to the plaintiff in compensation for such harm. ... In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... Look up Proof on Wiktionary, the free dictionary The word proof can mean: Shit and wanker originally, a test assessing the validity or quality of something. ... Hearing is the following: Hearing is the sense by which sound is perceived. ...


A defendant can have a default judgment vacated, or set aside, by filing a motion, after the judgement is entered, by showing of a proper excuse. A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... In law, a motion to set aside judgment is an application to overturn or set aside a courts judgment, verdict or other final ruling in a case. ...

Contents


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 (together with other documents, known as Particulars of Claim and a Response Pack) are served on the Defendant. Service of process is the term given to legal notice of a court or administrative bodys exercise of its jurisdiction over individuals who are the subject of proceedings or actions brought before such court, body or other tribunal. ...


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 (which is sufficient for routine cases), 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 Defence.


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 The Civil Procedure Rules 1998 came into force in England & Wales on 26 April 1999, largely replacing and significantly overhauling the previous Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. ...


Effect of Judgment

The judgment is binding and failure to comply with it means that enforcement action could be taken. For the band, see The Police. ...


The Defendant's name is also entered onto a register (although if they pay within a month it will be removed) 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 favours 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 Texan and US law being similar, although of course the English Court has no jurisdication to determine that point.


Varying Default Judgment

If a Defendant accepts the judgment, and the amount, but can't pay, the Defendant should apply to Vary the judgment. A process is gone through whereby the Defendant states how soon they can afford to pay the debt (usually monthly installments) and the Claimant can either accept this, or request another amount. The court's staff will suggest a figure and ultimately a District Judge (N.B. In England and Wales a District Judge is one of the lowest levels of 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 (which it usually can't).


Setting aside Defeault Judgment

There are three grounds for cancelling 'setting aside' 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' (motion). Evidence has to be shown to the procedural judge. This used to 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 (perhaps they were on a long vacation, or in hospital).
  • The Claimant entered judgment when they were not entitled so to do. For example, perhaps a Defence 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 (in 2005) been dropped.

In the last circumstance of the above, the Defendant can get the judgment cancelled as of right. Otherwise, the Defendant needs to show what their Defence 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 effected 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 defence, 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 defence 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 defence 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.


See also

External Links
  • Civil Procedure Rules

 
 

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