NEW RULES ON ENTERING A DEFAULT JUDGMENT WHERE ACKNOWLEDGMENT OF SERVICE OR DEFENCE IS FILED LATE

We have looked several times at the cases (sometimes conflicting cases) about whether a defence can be filed late.  In some cases it has been held that a claimant faced with a late defence can enter default judgment even when the defence has been filed before the application for judgment. Some clarity arrives with the The Civil Procedure (Amendment) Rules 2020 which come into force on the 6th April 2020.  However the key date is the position on the date on which judgment is entered, not the date judgment is applied for.

THE RULES

The amendments themselves need to be read in context. The rules state:

Amendment of Part 12

3.  In rule 12.3—
(a)in paragraph (1), after “if” insert “at the date on which judgment is entered”; and
(b)in paragraph (2)—
(i)in sub-paragraph (a), after “but” insert “at the date on which judgment is entered”; and
(ii)in sub-paragraph (b), after “where” insert “at the date on which judgment is entered”.

READ IN FULL

Inserting those amendments into the existing rule.

(1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date that judgment is entered
(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.
(2) Judgment in default of defence may be obtained only –
(a) where an acknowledgement of service has been filed but at the date on which  judgment has been entered a defence has not been filed;
(b) in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed,
and, in either case, the relevant time limit for doing so has expired

NOTE: “THE DATE ON WHICH JUDGMENT HAS BEEN ENTERED”

The key date here is the date of entry of judgment not  the date on which judgment is applied for.  As practitioners know there can be a major difference between those two dates, much depending on the administrative efficiency of the court.