CIVIL LITIGATION

Chapter 10.5 – Particular types of application

 Applications to set aside a default judgment (Part 13)

 Mandatory grounds
 Rule 13.2 - court obliged to set aside a default judgment that was wrongly entered
before the defendant’s deadline for filing an acknowledgement of service or a defence
expired.
 Court also obliged to set aside a default judgment entered after the claim was paid in
full.
 Discretionary grounds
 Rule 13.3(1) gives court power to set aside or vary a default judgment where:
 (a) the defendant has a real prospect of successfully defending the claim; or
 (b) it appears to the court that there is some other good reason why—
 (i) the judgment should be set aside or varied; or
 (ii) the defendant should be allowed to defend the claim.
 Court will take account of promptness of defendant’s application as soon as he becomes
aware of the default judgment - overriding objective ensures that cases are dealt with
expeditiously and fairly - r 13.3(2) explicit requirement for the court to have regard to
whether the application was made promptly.
 The application to the court must be on notice and must be supported by evidence.
 Defendant should show a defence with real prospect of success to persuade the court to
exercise its discretion.
 If default judgment set aside, defendant pay within 14 days.
 Orders the court may make
 The court may set aside the (1) default judgment, (2) refuse the application or (3) make
a conditional order.
 Judgment is set aside - court gives directions for the future management of the case.
 Conditional order - defendant pays into court the amount of the claim or such
amount as he can reasonably afford.
 Costs
 If application granted on a mandatory ground - claimant at fault for entering judgment
when he should not have done so, and claimant ordered to pay the defendant’s costs.
 If discretionary ground of a good reason for the default then - neither side is at fault -
costs usually in the case.
 If discretionary ground of a defence with a real prospect of success at trial, the
defendant is at fault in failing to deal with the proceedings and normally has to pay the
claimant’s costs.
 If conditional order made due to a very late application then the defendant is normally
penalised by being ordered to pay the claimant’s costs.
 Applications for summary judgment (Part 24)
 Grounds for the application
 Rule 24.2 states that:
 The court may give summary judgment against a claimant or defendant on the
whole of the claim or on a particular issue if—
 (a) it considers that—
 (i) that claimant has no real prospect of succeeding on the claim or issue; or
 (ii) that defendant has no real prospect of successfully defending the claim or issue;
and
 (b) there is no other compelling reason why the case or issue should be disposed of
at trial.
 Either party can make an application for summary judgment.
 Para 1.3 of PD 24, the application may be based on:
 (1) a point of law (including a question of construction of a document),
 (2) the evidence which can reasonably be expected to be available at trial or the lack
of it, or
 (3) a combination of these
 Procedure
 Claimant may not apply for summary judgment until defendant filed an
acknowledgement of service or a defence, unless the court gives permission.
 The defendant may apply for summary judgment at any time.
 Both parties should apply without delay and usually prior to, or at the time of, filing of
allocation questionnaires.
 The respondent to the application must be given at least 14 days’ notice of the date
fixed for the hearing.
 A respondent who wishes to rely on written evidence must file and serve this at least 7
days before the hearing.
 An applicant who wishes to rely on written evidence in reply to the respondent’s
submissions must file and serve it at least 3 days before the hearing.
  The application notice must state
 that it is an application for summary judgment and
 para 2(3) of PD 24:
 (a) identify concisely any point of law or provision in a document on which the
applicant relies, and/or
 (b) state that it is made because the applicant believes that on the evidence the
respondent has no real prospect of succeeding on the claim or issue, or (as the
case may be) of successfully defending the claim or issue to which the
application relates,
 and in either case state that the applicant knows of no other reason why the
disposal of the claim or issue should await trial.
 If does not contain all the applicant’s evidence, it should identify the written
evidence (such as a witness statement or statement of case) the applicant intends to
rely on.
 inform the respondent of his right to file and serve written evidence in reply.
 Orders the court may make
 (1) judgment on the claim, (2) the striking out or dismissal of the claim, (3) the dismissal
of the application, (4) a conditional order.
 To grant summary judgment, the court will have to come to the conclusion that the
claim or defence has no real prospects of succeeding at trial.
 Court will grant judgment on the claim only if the claimant makes an application. It will
strike out the claim only on a defendant’s application.
 Defendant who wishes to oppose an application for summary judgment and also to
apply for an order striking out the claim must make his own application for summary
judgment.
 A conditional order is an order which requires a party:
 (1) to pay a sum of money into court, or
 (2) to take a specified step in relation to his claim or defence, as the case may be,
and provides that that party’s claim will be dismissed or his statement of case will be
struck out if he does not comply.
 Conditional order where it appears to the court possible that a claim or defence may
succeed but improbable that it will do so.
 Directions
 Court may:
 (a) give directions as to the filing and serving of a defence, if one has not already
been filed; and
 (b) give further directions.
 Costs
 Claimant successful in obtaining summary judgment for a specified sum, the court will
usually award fixed costs (Part 45).
 The fixed costs are £175 if the judgment exceeds £25 but does not exceed £5,000, and
£210 if the judgment exceeds £5,000.
 Successful claimant to ask for costs to be assessed if more than the fixed costs.
  Claimant of unspecified - claimant will have established liability but a later assessment of
the quantum of damages will be necessary. The court will normally award the claimant
his costs of making the application (claimant’s costs) and assess these.
 Successful defendant – award of his costs of the claim (including pre-action costs) and
will be subject to assessment.
 If a conditional order is made the claimant’s application has not been granted, but
equally the defendant has not got the application dismissed. Neither side can be said to
have won and so the usual order is costs in the case.

 Application for further information (Part 18)

 A party may request further information from another party to clarify any matter which is in
dispute, or give additional information in relation to any such matter.
 If the request is not met, the party can apply for an order from the court.
 Request must comply with para 1 of PD 18, at least 14 days have elapsed and the time
stated for a response has expired, the application notice need not be served on the other
party and the court may deal with the application without a hearing (PD 18, para 5.5(1
 Otherwise, the application notice must be served on the other party