DEFAULT JUDGMENT CAN BE OBTAINED WHEN ACKNOWLEDGMENT OF SERVICE IS SERVED LATE
NB THIS DECISION HAS SINCE BEEN OVERTURNED BY A CHANGE IN THE RULES, SEE THE POST HERE.
A claimant can enter judgment in default of acknowledgement of service. What is the position if the acknowledgment of service is served late. This point was considered by Phillips J in Almond -v- Medgolf Properties (QBC Comm 19/5/2015). *
The claimant applied for summary judgment in default of acknowledgement of service. After the application was made the defendant served acknowledgment of service on the claimant but did not file a copy at court. The defendant argued that it was entitled to serve the acknowledgment late.
- The position had to be be judged at the date that the application for default judgment was made.
- It would make a nonsense of procedure if a defendant could avoid default judgment by acknowledging service any time before judgment was entered.
- Further an acknowledgment of service had not, in fact, been filed. Providing a copy to a party was not sufficient to prevent judgment being entered.
- The history, and absence of explanation for the delay, meant that there was no basis whatsoever for granting the defendant an extension of time.
* Reported on Lawtel. This post is based on the Lawtel summary,.
12.3— Conditions to be satisfied
(1) The claimant may obtain judgment in default of an acknowledgment of service only if–
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.