Order 19 Default of Pleadings

Default in service of statement of claim (O.19, r.1)

Where the plaintiff is required by these rules to serve a statement of claim on a defendant and he fails to
serve it on him, the defendant may, after the expiration of the period fixed by or under these rules for
service of the statement of claim, apply to the Court for an order to dismiss the action, and the Court
may by order dismiss the action or make such other order on such terms as it thinks just.

Default by plaintiff in serving statement of claim

If the plaintiff makes default in serving his statement of claim, the defendant cannot enter judgment,
but must apply under this rule to dismiss the action. If there is a failure to serve the statement of claim
within the time specified, the court has a discretion to dismiss the action for want of prosecution, and
may disregard the fact that the statement of claim has been served before the hearing of the summons
to dismiss which will no longer by itself cure the default (Clough v. Clough [1968] 1 W.L.R. 525;
[1968] 1 All E.R. 1179, CA).

Expiration of period for service

If the statement of claim is not already indorsed on the writ, it must be served either with the writ or at
any time after service but before 14 days after notice of intention to defend (see O.18, r.1), subject to
any consent or order extending the time (see O.3, r.5) or to any subsequent order directing service of
statement of claim. Accordingly, the plaintiff makes default in service of a statement of claim if he
fails to serve it within 14 days from the date of the defendant's notice of intention to defend, or if the
time has been extended by order or by consent within such extended time.

19/1/3

Application to dismiss

The application to dismiss is made by summons to a master at chambers. No affidavit is necessary.

Where there are several defendants, it is desirable that, before applying to dismiss, the solicitor of the
party about to apply should write to the solicitor of the opposite party, and ask him if he is going on,
and how the pleadings stand, or perhaps he should write to the solicitor for the other parties to make his
inquiries rather than alerting the plaintiff's solicitor. Otherwise the party applying may find that there
has been an agreement with some other party as to time which may prevent his applying (Ambroise v.
Evelyn (1879) 11 Ch.D. 759 at 761).

An application to dismiss the action is not a proceeding within O.3, r.6, which in certain cases requires
a month's notice of intention to proceed (Warnock v. Mann [1896] 2 I.R. 630).

An application to dismiss may be made even though the plaintiff has been ordered to give security for
costs and proceedings have been stayed while he does so, and the defendant has not abandoned the
order (La Grange v. McAndrew (1879) 4 Q.B.D. 210; Silver v. Silver and Grenfell [1924] P. 163 at
170).

19/1/4

Death or bankruptcy of plaintiff

When the plaintiff became bankrupt, the summons was ordered to be served on his trustees (Wright v.
Swindon Ry (1876) 4 Ch.D. 164). Where the sole plaintiff died, the court appointed a person to
represent his estate so that the defendant might have some one to apply against for dismissal (Wingrove
v. Thompson (1879) 11 Ch.D. 419).

19/1/5

Discretion of the court

The power to dismiss is discretionary (Gilder v. Morrison (1882) 30 W.R. 815). Where the service was
out of time owing to a mistake of the plaintiff's solicitor's clerk, an extension will be granted
(Canadian Oil Works Corp. v. Hay (1878) 38 L.T. 549). The court will always relieve against the
consequences of a "slip in the office" if it can, provided the mistake is an honest one.

As a general rule, the master will not, at all events on the first application, make an order dismissing the
action without giving the plaintiff an opportunity to serve a statement of claim (Eaton v. Storer (1882)
22 Ch.D. 91, CA, per Jessel M.R. at 92; Higginbottom v. Aynsley (1876) 3 Ch.D. 288). This, however,
is subject to the overriding discretion of the court to dismiss the action for want of prosecution where
the plaintiff has been guilty of inordinate and inexcusable delay to the prejudice of the defendant (see
Clough v. Clough [1968] 1 W.L.R. 525; [1968] 1 All E.R. 1179, CA).

19/1/6

Order to dismiss

The order should be precise in its terms. If its operation depends upon a certain event, the date of that
event should be capable of being ascertained with precision (Albacan v. Innous [1936] 2 All E.R. 834;
Kaye v. Levinson [1950] 1 All E.R. 594; and see O.42, r.2(1)). Where such an order is not complied
with, the court nevertheless retains the power to extend the time within which such act should be
complied with (Samuels v. Linzi Dresses Ltd [1981] Q.B. 115; [1980] 1 All E.R. 803, CA, not
following Script Phonography v. Gregg (1890) 59 L.J.Ch. 406; Whistler v. Hancock (1878) 3 Q.B.D.
83). See para. 3/5/5, "Unless or conditional order to extend time". Moreover, if time for compliance
with the order is expressly made to run from service of the order, it takes effect, notwithstanding that
the order has not been drawn up or served on the plaintiff (Script Phonography v. Gregg (above)).

There is jurisdiction to enlarge the time fixed by the conditional order to dismiss (Carter v. Stubbs
(1880) 6 Q.B.D. 116, CA; Burke v. Rooney (1879) 4 C.P.D. 226). This is frequently done in proper
cases, the costs being usually awarded to the defendant in any event.

19/1/7
Effect of order to dismiss

An order to dismiss an action for a reason which goes to the foundation of the whole cause of action,
and which is the result of a determination, after hearing the parties, of the whole or a fundamental part
of the whole claim, and the effect of which is finally to determine the rights of the parties, is final for all
purposes (Bozson v. Altrincham UDC [1903] 1 K.B. 547, CA, following Shubrook v. Tufnell (1882) 9
Q.B.D. 621, CA, and overruling Salaman v. Warner [1891] 1 Q.B. 734) but Shubrook v. Tufnell was
not followed in Cogstad v. Newsum [1921] 2 A.C. 528. The effect of a judgment of dismissal under
O.35, r.1, where the case is called on for trial and the plaintiff does not appear, is "the same as if the
action had been dismissed on the merits" (per Esher M.R., Armour v. Bate [1891] 2 Q.B. 233 at 235).

On the other hand, an order for dismissal with costs, for default of pleading or compliance with an
order of the court, and whether by consent or otherwise, is no bar to the commencement of a fresh
action, unless the order contains some express provision to the contrary (Magnus v. National Bank of
Scotland (1888) 57 L.J.Ch. 902; Pople v. Evans [1969] 2 Ch. 255; [1968] 2 All E.R. 743; per Lord
Denning M.R. in Hart v. Hall & Pickles Ltd [1969] 1 Q.B. 405 at 411; [1968] 3 All E.R. 291 at 293).

Default of defence: claim for liquidated demand (O.19, r.2)

19/2
2.--(1) Where the plaintiff's claim against a defendant is for a liquidated demand only, then, if that
defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period
fixed by or under these rules for service of the defence, enter final judgment against that defendant for
a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with
the action against the other defendants, if any. (See App. A, Form 39.)

(2) Order 13, rule 1(2) shall apply for the purposes of this rule as it applies for the purposes of that rule.

19/2/1

Default of defence, generally

It has been said that the basis upon which default judgment can be obtained, in circumstances where no
defence is filed, is that of implied admission, i.e. the court will assume that the Statement of Claim has
been impliedly admitted. This has also been said to explain the reason why, in an application for
judgment in default of defence, the court will only consider the Statement of Claim without admitting
any evidence (Wu Ka v. Wu Kuo Cheng & Another, unreported, HCA No. 1851 of 2003, July 25, 2003,
[2003] H.K.E.C. 1100).

19/2/2

Default of defence to a liquidated claim

Where the claim is for a liquidated demand only, including a claim for interest (para. (2)), the plaintiff
may enter final judgment against the defendant who is in default of serving his defence for the amount
claimed and costs without application to or leave of the court and he can enter interlocutory judgment
for interest to be assessed.
Notwithstanding the reference to "the writ" in para. (1), this provision has been held not to be restricted
to actions commenced by writ (Smolar v. Prosport Management Ltd & Another, unreported, HCA No.
7744 of 2000, August 17, 2001, [2001] H.K.E.C. 1021).

If before judgment is entered, the defendant serves a defence, even though it be out of time, judgment
in default cannot be entered (Gill v. Woodfin (1884) 25 Ch.D. 707, CA; Gibbings v. Strong (1884) 26
Ch.D. 66, CA).

The power to enter judgment in default under this rule applies to a case where the defence has been
struck out, as, for instance, for breach of an order to produce documents (Haigh v. Haigh (1885) 31
Ch.D. 478).

If the defendant makes default in serving a defence, all the allegations in the statement of claim are
admitted (Cribb v. Freyberger [1919] W.N. 22, CA).

19/2/3

Expiration of period for service of defence

There are three fixtures of time for the service of the defence, failure to comply with any of which
places the defendant in default of defence:

(1) Where the writ is indorsed with a statement of claim, and the defendant has given notice of
intention to defend, he must serve his defence within 14 days from the time limited for giving notice of
intention to defend, unless the plaintiff has in the meantime issued a summons under O.14 or the time
has been extended by an order under O.3, r.5 or by consent.

(2) Where the plaintiff has applied under O.14, and leave to defend has been given, the defendant must
serve his defence within 14 days from the date of the order giving leave to defend unless such order
specifies some other time (O.18, r.2(2)).

(3) Where the statement of claim is served after notice of intention to defend has been given, the
defendant must serve his defence within 14 days from the service of statement of claim, whichever
shall be the later, unless such time is extended by order or consent.

If an amended statement of claim is served before defence, the plaintiff cannot proceed in default of
defence until after time fixed by O.20, r.3(2) has expired, see Vellacott v. Thompson [1890] W.N. 158.

If an amended statement of claim is served after the defence and the defendant does not serve an
amended defence, he does not thereby place himself in default, for he is presumed to rely on his
original pleading see O.20, r.3(6).

19/2/4

Entering judgment after expiration of requisite period

Care must be taken not to enter judgment until the due time has expired, or the defendant will be
entitled ex debito justitiae to have it set aside (Anlaby v. Praetorius (1888) 20 Q.B.D. 764 at 771).
Where the last day for defence falls on Sunday, judgment entered on Monday is premature and will be
set aside (Louis v. Guardians, etc. (1888) 32 S.J. 187. See O.3, r.4, and Chambon v. Heighway (1890)
54 J.P. 520).

In order to ensure that a judgment in default of the service of his defence by the defendant is not
entered prematurely, the following indorsement must first be signed and dated by the solicitor for the
plaintiff, or by the plaintiff if he is acting in person, on the back of the court copy of the judgment
which he tenders for entry against the defendant for default of service of his defence:

"I/We, Solicitor for the plaintiff, certify that the time for service of the defence by the defendant
prescribed by the Rules of Court or extended by order of the Court or by the consent of the parties has
expired and that the defendant is in default in serving his defence within such time. Dated and
signed ."

The Hong Kong courts follow the English practice in this regard notwithstanding that there is no
corresponding practice direction in Hong Kong.

In addition, two clear days notice must be given of the intention to enter judgment, see O.19, r.8A.

The issue of a summons by the defendant seeking an extension of time will not prevent the plaintiff
from entering default judgment, although the court may, where appropriate, nevertheless exercise its
discretion to grant the defendant additional time within which to serve its defence (Schindler Lifts
(H.K.) Ltd v. Ocean Joy Investments Ltd, unreported, HCCT No. 81 of 2001, January 11, 2002, and Ng
Ngon Kwan v. Hideaki Minami & Another, unreported, DCCJ No. 7989 of 2001, November 15, 2001,
[2002] H.K.E.C. 31).

19/2/5

Not exceeding the sum claimed

Care must also be taken to enter judgment only for the amount of what is actually due at the time where
judgment is entered, otherwise the defendant is entitled ex debito justitiae to have it set aside (Hughes
v. Justin [1894] 1 Q.B. 667, CA; Muir v. Jenks [1913] 2 K.B. 412, CA). But an error in entering
judgment arising from an accidental slip or omission may be corrected (Armitage v. Parsons [1908] 2
K.B. 410, CA).

As to the practice of amending judgment entered in default of defence, see n. "Amendment of

judgment in default entered for too much", para. 13/1/3.

19/2/6

Enter final judgment

For form of judgment, see App. A, No. 39, The Supreme Court Practice 1999, Vol. 2, Section 1. But
the costs of the plaintiff may, in a proper case, be disallowed (see Cromwell Property Investment Co.
Ltd v. Hucks (1939) 83 S.J. 621).

19/2/7

Judgment for interest

By para. (2), the comparable provision in O.13, r.1(2) applies, so that a claim which includes a claim
for interest remains a claim for a liquidated demand, see "Claim for interest", para. 13/1/4.

19/2/8

"Costs"

See O.62.

19/2/9

Costs where debt paid after acknowledgment of service

If after acknowledgment of service, and before serving a defence, the defendant pays the debt but
refuses or fails to pay any costs, the plaintiff may enter judgment in default of defence for the costs
alone, merely reciting the fact that the debt has been paid. Where the action is of such a kind that this
cannot be done without an order, the plaintiff may apply to a master for an order for the costs.

19/2/10

Proceed against the other defendants

Under s.5 of the Civil Liability (Contribution) Ordinance (Cap. 377), a judgment against one of two or
more persons jointly liable to the plaintiff, whether in contract, tort or otherwise, does not operate as a
bar to an action or the continuance of an action against the other or others. Judgment may be taken
against one in default of acknowledgment of service or notice of intention to defend; against another
under O.14; and against a third under this rule, without prejudice to prosecuting the action further
against the remainder (Weall v. James (1893) 68 L.T. 515, CA, and Walton v. Topakyan & Co.t (1905)
53 W.R. 657, CA, decided on similar words in O.14, r.5, and see Goldrei, Foucard & Son v. Sinclair
[1918] 1 K.B. 180, CA, there cited). And if a judgment is obtained by consent against any one of the
joint contractors such judgment cannot be pleaded as a bar to further proceedings against the others
(see s.5 of Cap. 377).

But where two defendants are sued on a claim on which the plaintiff has a right of action alternatively,
but not jointly, a judgment against one of them is equivalent to an election to sue that one, and a bar to
further proceedings against the other (Morel Bros. v. Westmorland, Earl of [1903] 1 K.B. 64, CA;
Moore v. Flanagan [1920] 1 K.B. 919, CA; and see Sullivan v. Sullivan [1912] 2 Ir.R. 116); and a
judgment entered against one of two defendants alternatively liable cannot be set aside by order to
enable the plaintiff to obtain judgment against the other (Cross & Co. v. Matthews (1904) 91 L.T. 459).

See more fully O.14, r.8 n. "Law as to joint contractors", para. 14/8/2.
Default of defence: claim for unliquidated damages (O.19, r.3)

19/3
3. Where the plaintiff's claim against a defendant is for unliquidated damages only, then, if that
defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period
fixed by or under these rules for service of the defence, enter interlocutory judgment against that
defendant for damages to be assessed and costs, and proceed with the action against the other
defendants, if any. (See App. A, Form 40.)

19/3/1

Default of defence to a claim for damages

Compare O.13, r.2, and see the note under that rule.

Form of interlocutory judgment, App. A, No. 40.

19/3/2

Assessment of damages

Unless some other mode of assessment is ordered, the damages will be assessed by a master (O.37, r.1).
The hearing of the assessment is in public (Hesz v. Sotheby [1960] 1 W.L.R. 285). In Admiralty they
are assessed by the Registrar (see O.37, r.1 and O.75, r.41).

Default of defence: claim in detinue (O.19, r.4)

19/4
4.--(1) Where the plaintiff's claim against a defendant relates to the detention of goods only, then, if
that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the
period fixed by or under these rules for the service of the defence and subject to Order 42, rule 1A,--

(a)at his option enter either--

(i)interlocutory judgment against that defendant for delivery of the goods or their value to be assessed
and costs, or

(ii)interlocutory judgment for the value of the goods to be assessed and costs, or

(b)apply by summons for judgment against that defendant for delivery of the goods without giving him
the alternative of paying their assessed value,

and in any case proceed with the action against the other defendants, if any. (See App. A, Form 41)

(2) A summons under paragraph (1)(b) must be supported by affidavit and, notwithstanding Order 65,
rule 9, the summons and a copy of the affidavit must be served on the defendant against whom
judgment is sought.
19/4/1

Default of defence to claim for detention of goods

Compare O.13, r.3, and see notes under that rule which are applicable except that that rule is dealing
with default of notice of intention to defend and not with default in service of defence.

19/4/2

Assessment of value

The normal practice is for the value of the goods to be assessed by a master.

19/4/3

Time of assessment

Normally the assessment against the defendant in default should be made at the time of the trial against
the non-defaulting defendant, though in a proper case the damages will be assessed at once by a master.
See O.37, and see also Goldrei, Foucard & Son v. Sinclair and Russian Chamber of Commerce in
London [1918] 1 K.B. 180.

Default of defence: claim for possession of land (O.19, r.5)

19/5
5.--(1) Where the plaintiff's claim against a defendant is for possession of land only, then, if that
defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period
fixed by or under these rules for service of the defence, and on producing a certificate by his solicitor,
or (if he sues in person) an affidavit, stating that he is not claiming any relief in the action of the nature
specified in Order 88, rule 1, enter judgment for possession of the land as against that defendant and for
costs, and proceed with the action against the other defendants, if any. (See App. A, Form 42)

(5) Where there is more than one defendant, judgment entered under this rule shall not be enforced
against any defendant unless and until judgment for possession of the land has been entered against all
the defendants.

19/5/1

Default of defence to claim to possession of land

Compare O.13, r.4, and see notes under that rule.

Where there is a claim for mesne profits, the practice as to the amount of mesne profits for which
judgment in default may be entered under this rule is the same as in the case of judgment in default of
acknowledgment of service or notice of intention to defend, see notes under O.13, r.4.
Where the defendant after acknowledgment of service satisfies the claim by delivering up possession,
and paying the rent and mesne profits claimed, but refuses or fails to pay any costs, the plaintiff, when
default of defence exists, may enter judgment in default for the costs alone, merely reciting the fact that
the claim has been satisfied. If from the nature of the action this cannot conveniently be done, the
plaintiff may apply to the practice master for an order for his costs.

Default of defence: mixed claims (O.19, r.6)

19/6
6. Where the plaintiff makes against a defendant two or more of the claims mentioned in rules 2 to 5,
and no other claim, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may,
after the expiration of the period fixed by or under these rules for service of the defence, enter against
that defendant such judgment in respect of any such claim as he would be entitled to enter under those
rules if that were the only claim made, and proceed with the action against the other defendants, if any.

19/6/1

Effect of rule

Compare O.13, r.5, and see notes under that rule.

Default of defence: other claims (O.19, r.7)

19/7
7.--(1) Where the plaintiff makes against a defendant or defendants a claim of a description not
mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one)
fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed
by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing
of the application the Court shall give such judgment as the plaintiff appears entitled to on his
statement of claim.

(2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one
defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff
may--

(a)if his claim against the defendant in default is severable from his claim against the other defendants,
apply under that paragraph for judgment against that defendant, and proceed with the action against the
other defendants; or

(b)set down the action on motion for judgment against the defendant at the time when the action is set
down for trial, or is set down on motion for judgment, against the other defendants.

(3) An application under paragraph (1) must be by summons or motion.

19/7/1

Default of defence to other claims

This rule applies, and applies only, where the defendant or plaintiff being required to serve a defence
either to a statement of claim or to a counterclaim makes default, and consequently this rule applies
only where a statement of claim or counterclaim has been served: see Wilmot v. Young (1881) 44 L.T.
331.

This rule applies only as between plaintiff and defendant and not to third party proceedings, see O.16,
r.5.

In cases in which this rule applies, the default in serving a defence cannot be followed by judgment
without an order, for which the plaintiff must apply by summons or motion.

The plaintiff is, however, entitled without notice to abandon every relief or remedy sought which falls
outside the description of claims under rr.2-6 and enter a default judgment for his claims within those
rules (Morley London Developments Ltd v. Rightside Properties Ltd (1973) 117 S.J. 876, CA).

19/7/2

Default of notice of intention to defend and of defence

By the combined effect of O.13, r.6, and this rule, this rule applies to cases in which the defendant is in
default of notice of intention to defend as well as of defence. If the statement of claim is not indorsed
on or served with the writ, it must first be served on the defendant, even though in default of
acknowledgment of service, before the plaintiff can proceed under this rule.

The court will not give judgment under this rule in any case, except where a statement of claim has
been served. Neither consent of parties nor order for directions can dispense with this necessity
(Fowler v. White (1901) 45 S.J. 723). There is no power to dispense with service of a statement of
claim where the plaintiff is proceeding in default of notice of intention to defend and defence under
O.13, r.6, and this rule. Even where there are several defendants and some give notice of intention to
defend and one does not, and the master gives directions that the action be set down on motion for
judgment against all the defendants without pleadings, the court is still powerless to give judgment
under this rule against the defendant who has failed to give notice of intention to defend unless a
statement of claim has been served upon him under O.13, r.6 (Re Norman [1900] W.N. 159).

If the plaintiff's claim on the writ is of such a kind that he could have entered judgment in default of
notice of intention to defend, but voluntarily serves a statement of claim in default of acknowledgment
of service under O.13, r.6, he may enter judgment in default of defence under one or other of the
preceding rules of this Order. It is also open to him to move or to apply by summons for judgment
hereunder. But the court acting hereunder will not in such a case give relief beyond that claimed by the
writ, and the plaintiff will not be allowed more costs than he would have been entitled to if he had
entered judgment in default of notice of intention to defend under O.13, unless so ordered by the court.

19/7/3

Default of defence

Where the defendant has given notice of intention to defend but has made default of defence in a case
within this rule, the plaintiff may apply by summons or motion for judgment.

Where the defence is struck out for non-compliance with an order, the defendant is in default, and the
plaintiff is entitled at the same time to take such steps as the rules prescribe to obtain judgment in
default of defence (Re Hartley (1891) 91 L.T.J. 229).

Similarly, where the defendant withdraws his defence, the plaintiff is entitled to proceed by summons
or motion for judgment under this rule (Cooper-Dean v. Badham [1908] W.N. 100).

19/7/4

Defence served after default

A defence served after expiration of the prescribed time but before judgment has been given cannot be
disregarded, and will generally prevent the plaintiff from entering judgment, even though it is not
served until after the plaintiff has served his summons or notice of motion for judgment under this rule,
but the defendant may be ordered to pay the costs occasioned by his delay (Gill v. Woodfin (1884) 25
Ch.D. 707, CA; Gibbings v. Strong (1884) 26 Ch.D. 66, CA; cf.Graves v. Terry (1882) 9 Q.B.D. 170).
In such a case, the court will have regard to the contents of the defence served out of time, and deal
with the case in such a manner that justice can be done (Gibbings v. Strong; Montagu v. Land
Corporation, etc. (1884) 56 L.T. 730). This is the position even when a draft defence consisting of bare
denials of the plaintiff's case is handed to the court, without leave and out of time, upon the hearing of
a plaintiff's motion for judgment and a defendant's cross summons for time to file its defence (see
California Insurance Co. Ltd & Others v. Choung Suk Wah & Others, unreported, HCA No. 172 of
2002, September 19, 2002, [2002] H.K.E.C. 1184). The court may give judgment, but suspend it for a
period, directing notice to be given to the defendant's solicitor (Butterworth v. Smallwood [1924] W.N.
82).

19/7/5

Default of defence to counterclaim

Default by the plaintiff in serving his defence to counterclaim entitles the defendant to apply by
summons or motion for judgment on the counterclaim. See r.8, and see Higgins v. Scott (1888) 21
Q.B.D. 10; Roberts v. Booth [1893] 1 Ch. 52.

19/7/6

Default by one of several defendants

Where there are several defendants, some of whom give notice of intention to defend and serve
defences, and some of whom are in default of notice of intention to defend and defence, and the
plaintiff proceeds to trial against some and on motion for judgment against others, he should enter the
action, and the motion for judgment to come on for hearing at the same time. If he desires to move for
judgment on admissions against those who have pleaded, the proper course is to move at the same time
for judgment in default against the others. See Bridson v. Smith (1876) 24 W.R. 392; Parsons v. Harris
(1887) 6 Ch.D. 694; National & Provincial Bank v. Evans (1881) 30 W.R. 177.
Where one of several defendants makes default and the cause of action against him is severable, it is
not necessary to serve the notice of motion on the other defendants (Macmillan v. Australasian
Territories (1897) 76 L.T. 182, following Cooke v. Gilbert [1892] W.N. 111 at 128).

In an infringement action against two defendants, it was held that the plaintiffs were entitled to
judgment on motion against the defendant, who was in default of pleading, without waiting for the trial
of the action against the other who had pleaded (Weinberg v. Balkan, etc., Ltd (1923) 40 R.P.C. 399).

19/7/7

Right to proceed to trial

The rule is merely permissive, and in cases where the plaintiff cannot obtain on summons or motion for
judgment all the relief he seeks, he is entitled to proceed to trial, notwithstanding the default in serving
a defence or the fact that the defence served is withdrawn (Grant v. Knaresborough UDC [1928] Ch.
310). As the close of pleadings requires the service of a defence, it is doubtful if the plaintiff can issue
a summons for directions under O.25 where there is default in serving a defence (see, however, Nagy v.
Co-operative Press Ltd [1949] 2 K.B. 188, CA) but nevertheless, the court has power to give directions
for trial (Austin v. Wildig [1969] 1 W.L.R. 67; [1969] 1 All E.R. 99 n.).

On the other hand, where the plaintiff proceeds to trial when he could have entered judgment in default
of defence for all that he was entitled to, he will not be allowed more costs than he would have
recovered if he had so entered judgment unless the court otherwise orders.

Where a default judgment obtainable under O.13 or O.19 might not be enforceable abroad against
known assets of the defendant, the court should permit the plaintiff to proceed to the trial of the action
(Berliner Bank v. Karageogis [1996] 1 Lloyd's Rep. 426).

19/7/8

Application for judgment by summons

The application for judgment in default of defence under this rule should be made by summons to a
master. This practice is more convenient and tends to be cheaper than applying by motion for judgment,
and this is the proper practice in all such applications, except where the plaintiff is seeking an
injunction (which is outside a master's jurisdiction under O.32, r.11(1)(d)) for thereby much saving in
time and costs will be effected.

The summons must be served on the defendant (O.65, r.5). Two clear days' notice is necessary (O.32,
r.3).

19/7/9

Application for judgment by motion

When setting down a motion for judgment under this rule, the following documents should be filed:
(1)Affidavit of service to prove good service of all the required documents.

(2)Unless the statement of claim was served with or indorsed on the writ, an affidavit of service
thereof.

The notice of motion must be served on the defendant (see O.65, r.5); two clear days' notice is
necessary (O.32, r.3).

19/7/10

Application for judgment by motion

The date for hearing the motion is written on the notice of motion. The notice of motion must be served
on the defendant (see O.65, r.5) and two clear days' notice is necessary (O.32, r.3).

19/7/11

Proof of plaintiff's case

The court cannot receive any evidence in cases hereunder, but must give judgment according to the
pleadings alone (Smith v. Buchan (1888) 58 L.T. 710; Young v. Thomas [1892] 2 Ch. 135, CA). It is
therefore not necessary on the hearing of the summons or motion for judgment to prove the case by
evidence (Webster v. Vincent (1898) 77 L.T. 167). The costs of any affidavits in support of the claim
will be disallowed (Jones v. Harris (1887) 55 L.T. 884). This, however, does not apply where the
defendant is an infant or a patient, nor in any action in which the plaintiff is claiming any relief of the
nature or kind specified in O.88, r.1.

In actions for rectification of an instrument, oral evidence is in practice required and therefore such
actions should be ordered to be set down accordingly.

19/7/12

Minor and patient defendants

The procedure prescribed by this rule applies, with slight variation, to minors and patients, as well as to
persons of full capacity. The only difference is that a guardian ad litem must, in case of no
acknowledgment of service, be appointed under O.80, r.6, and that, as no admissions can be implied
against a person under disability from his default of acknowledging service or defence (see O.80, r.8),
the plaintiff must prove his case by affidavit evidence (Re Fitzwater (1882) 52 L.J.Ch. 83; Gardner v.
Tapling (1885) 33 W.R. 473). This practice was followed in Cheek v. Cheek (1910) 45 L.J.N.C. 222. It
seems that the affidavit may be dispensed with where the interests of the party under disability are
otherwise safeguarded (Ripley v. Sawyer (1886) 31 Ch.D. 494).

If judgment in default is entered against a minor or a patient without knowledge of minority or

disability, the court must still set it aside, as O.80, r.6, renders irregular all proceedings in default
against a minor or a patient until after the terms of that rule have been complied with (Leaver v. Torres
(1899) 43 S.J. 778).

19/7/13

Discretion of the court

Although para. (1) of the rule is expressed in mandatory terms, the rule is not mandatory but
discretionary, and the court retains its discretionary power whether to give judgment or to extend a
party's time to plead when it is just to do so (Wallersteiner v. Moir [1974] 1 W.L.R. 991; [1974] 3 All
E.R. 217, CA). It may, for instance, where there are matters affecting other parties waiting to be
decided, order the motion to stand over until trial (Verney v. Thomas (1888) 36 W.R. 398) or to stand
over generally (Jenney v. Mackintosh (1886) 61 L.T. 108). It may give an interlocutory judgment, and
refer the case to a master to ascertain what amount the plaintiff is entitled to (Charles v. Shepherd
[1892] 2 Q.B. 622). This includes discretion over the costs; see "Costs", para. 19/7/19.

19/7/14

Statement of claim must show right to relief

The statement of claim (or counterclaim) must, on motion or summons hereunder, show a case for the
order the applicant seeks to obtain.

On the other hand, it is not the practice of the court to make a declaration of right in default of defence,
or on admissions or by consent but where such relief is to be granted without trial or evidence, the right
course for the court is not to make a declaration but to state on what footing the relief is to be granted
(Wallersteiner v. Moir [1974] 1 W.L.R. 991; [1974] 3 All E.R. 217; per Buckley and Scarman L.JJ.).
The court's power to grant judgment under O.19, r.7 is discretionary. The court's task (in exercising its
discretion) is to see whether the plaintiff appears to be entitled to judgment on his Statement of Claim.
The court does not need to be satisfied by evidence adduced by the plaintiff to prove his case (China
Construction Realty Ltd v. Sino Business Services Proprietary Ltd & Others, unreported, HCA No.
1294 of 2005, [2006] H.K.E.C. 601).

The principle that a declaration will not be granted when giving judgment by consent or without trial,
e.g. where judgment is obtained in default of defence or notice of intention to defend, is a rule of
practice and not of law and will give way to the paramount duty of the court to do the fullest justice to
the plaintiff to which he is entitled (Patten v. Burke Publishing Co. Ltd [1991] 1 W.L.R. 541; [1991] 2
All E.R. 821.)

In a patent action, particulars of breaches may be considered as part of the statement of claim for the
purposes of this rule (United Telephone Co. v. Smith (1890) 61 L.T. 617; Kin Ming Holdings
International Ltd v. Lam Moon Yuen, unreported, HCA No. 2350 of 2005, [2006] H.K.E.C. 269 and
John Robert Lees & Another v. Dragon Investment Co. II LLC, unreported, HCA No. 1180 of 2003,
[2006] H.K.E.C. 214).

Where the writ claimed account, foreclosure, sale, against mortgagor and second mortgagees, but the
statement of claim claimed personal payment by mortgagor, judgment for personal payment was
refused (Gee v. Bell (1887) 35 Ch.D. 160; Law v. Philby (1887) 35 W.R. 401 at 450). So, where writ
claimed specific performance only, and the statement of claim added an alternative claim for rescission
and forfeiture, the court refused to go beyond the claim on the writ (Kingdon v. Kirk, 37 Ch.D. 141).

19/7/15

Specific performance

If the action is for specific performance, the court will not make a declaration of lien, which is not
claimed by the statement of claim (Tacon v. National Standard Land Mortgage & Investment Co.
(1887) 56 L.T. 165) and in such action the property must be specifically described in statement of
claim (Smith v. Buchan (1888) 58 L.T. 710). As to minutes of judgment in a vendor's action, see
Cooper v. Morgan [1909] 1 Ch. 261.

19/7/16

Debenture-holders' action

A declaration of charge on the asset may as a general rule be included in the judgment (Marwick v.
Lord Thurlow [1895] 1 Ch. 776; Parkinson v. Wainwright (1895) 64 L.J.Ch. 493) but in the case of a
company insolvent and in winding up, the court may require the consent of the Official Receiver and
liquidator to be put on record (Marwick v. Lord Thurlow (above)).

19/7/17

Injunction

In an action for damages for libel and for injunction, defendant made default of notice of intention to
defend and defence. The plaintiffs abandoned their claim for damages and on motion under this rule
the court granted the injunction (Dykes v. Thomson [1909] W.N. 104).

19/7/18

Foreclosure

For form of judgment, see Biddulph v. Billiter Street Offices Co. (1895) 72 L.T. 834; Farrer v. Lacy
(1886) 31 Ch.D. 42, CA. As to period for redemption, see Mutual Life Assurance v. Langley (1886) 26
Ch.D. 686; Platt v. Mendel (1884) 27 Ch.D. 246; Green v. Biggs (1885) 52 L.T. 680.

19/7/19

Costs

On the summons or motion for judgment, the court retains its discretion over the costs (Young v.
Thomas [1892] 2 Ch. 134, in which case judgment was given for the plaintiff without costs of action).
This power over the costs applies also to costs reserved, e.g. of application for interim injunction
(Beckley v. Colley (1904) 48 S.J. 261).
Where judgment is obtained against some defendants on motion hereunder and against some after trial
of the action, the order should provide as to costs that the defendants be jointly liable for the costs
common to all, but, for further costs, only severally for such additional costs as are attributable to each
defendant separately as having been occasioned by him (Dansk Rekylriffel Syndikat, etc. v. Snell [1908]
2 Ch. 127).

19/7/20

Declaration

It is not the normal practice of the court to make a declaration without a trial, particularly where the
declaration is that the defendant in default of defence has acted fraudulently (Wallersteiner v. Moir (No.
1) [1974] 1 W.L.R. 991). However, this is only a rule of practice and should only be followed when the
plaintiff can obtain the fullest justice to which it is entitled without the declaration he seeks (Lam Shing
Shou v. Lam Hon Man & Others [2002] 1 H.K.L.R.D. D3; Lai Wai Kuen v. Wong Shau Kwong,
unreported, HCA No. 3424 of 2003, November 12, 2004). This rule of practice does permit limited
exceptions (Kin Ming Holdings International Ltd v. Lam Moon Yuen, unreported, HCA 2350 of 2005,
[2006] H.K.E.C. 269 and John Robert Lees & Another v. Dragon Investment Co. II LLC, unreported,
HCA No. 1180 of 2003, [2006] H.K.E.C. 214).

Default of defence to counterclaim (O.19, r.8)

19/8
8. A defendant who counterclaims against a plaintiff shall be treated for the purposes of rules 2 to 7 as
if he were a plaintiff who had made against a defendant the claim made in the counterclaim and,
accordingly, where the plaintiff or any other party against whom the counterclaim is made fails to
serve a defence to counterclaim, those rules shall apply as if the counterclaim were a statement of
claim, the defence to counterclaim a defence and the parties making the counterclaim and against
whom it is made were plaintiffs and defendants respectively, and as if references to the period fixed by
or under these rules for service of the defence were references to the period so fixed for service of the
defence to counterclaim.

19/8/1

Effect of rule

If the claim made in the counterclaim comes within rr.2 to 6 of this Order, i.e. a claim for (1) a
liquidated demand only, or (2) unliquidated damages, or (3) detention of goods only, or (4) recovery of
land only, or (5) any combination of such claims, and the plaintiff defaults in serving defence to
counterclaim, the defendant may proceed to enter judgment in default of defence without the need for
any application to the court.

On the other hand, if the claim made in the counterclaim does not fall within rr.2 to 6 of this Order, and
the plaintiff makes default in serving his defence to counterclaim, the defendant must apply by
summons or motion for judgment under r.7.

Notice of intention to enter judgment (O.19, r.8A)

19/8A
8A.--(1) No party shall enter judgment under the provisions of this Order against a party who has filed
an acknowledgment of service giving notice of intention to defend, or on a counterclaim, unless--

(a)after such acknowledgment of service or counterclaim has been filed, and not less than 2 clear days
before entering judgment, the party intending to enter judgment has served notice in writing of his
intention to do so on the party against whom judgment is sought or, if that party is legally represented,
on his solicitor;

(b)evidence of such service by way of affidavit has been filed in the Court.

(2) This rule shall not apply where--

(a)the Court has made an order prescribing or extending the time for service of defence or defence to
counterclaim; or

(b)the party against whom it is sought to enter judgment does not have a solicitor of record in the
proceedings and has failed to state an address within the jurisdiction in the proceedings at which he can
be served.

(L.N. 223 of 1995)

19/8A/1

HISTORY OF RULE

This rule codifies a voluntary practice supervised by the Law Society of Hong Kong whereby, unless a
firm of solicitors "contracted out" of the operation of the practice, it was deemed to have undertaken
not to enter judgment in default of defence against a legally represented defendant (or plaintiff in the
case of a counterclaim) without first giving 48 hours' written notice of intention to do so.

19/8A/2

Exceptions to the application of the rule

The rule does not apply where no notice of intention to defend the proceedings has been filed. It only
applies where such notice has been filed. There are two exceptions to the application of the rule where
notice of intention to defend has been filed, provided for by para. 2. First, it does not apply once the
court has made an order prescribing or extending time for service of the defence or defence to
counterclaim as the case may be. Such an order will usually be made on the hearing of a time summons
under O.3, r.5 (see the notes thereto). (The rule does however continue to apply notwithstanding an
extension of time where that extension of time is not the subject of an order of the court but is an
extension by agreement between the parties.) Secondly, if the party concerned, against whom it is
intended to enter judgment, (i) does not have a solicitor on the record in the proceedings and (ii) has not
stated a Hong Kong address or any address at all in the acknowledgment of service form at which they
can be served.
19/8A/3

Timing of service of notice under this rule

The notice must be served at least two clear days before judgment can be entered. However, it is not
necessary to wait until time for filing and serving the defence or defence to counterclaim, as the case
may be, has expired and the party concerned is in default. The notice can be given at any time after the
party concerned has filed the acknowledgment of service form. See Ho Yuen Tsan & Others v. Hop
Wing Transportation Co. Ltd [1997] H.K.L.R.D. 46; [1996] 4 H.K.C. 259.

Setting aside judgment (O.19, r.9)

19/9
9. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance
of this Order.

19/9/1

Effect of rule

The wording of this rule is wide enough to authorise the court, in its discretion, to set aside one part of
the default judgment and to grant a general stay of execution on another part (National Westminster
Bank plc v. Humphrey (1984) 128 S.J. 81, CA).

For the practice and cases on setting aside a judgment in default of notice of intention to defend, which
are equally applicable under this rule, see O.13, r.9, and notes thereunder. In Admiralty actions in rem,
O.75, r.21(9) corresponds to this rule.

Where an order is made that a defence be struck out and judgment be entered accordingly, the
judgment so entered is a judgment in default of defence and like any other such judgment can be set
aside or varied under this rule (Bains v. Patel, The Times, May 20, 1983, CA).

On making conditions for setting aside a regular default judgment, the court's discretion is a broad one
(Copytron (Hong Kong) Ltd v. Lee Chin Leong, unreported, HCA No. 1345 of 2003, January 20, 2006,
[2006] H.K.E.C. 206 and April 13, 2006, [2006] H.K.E.C. 715).