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Default judgement
09/05/2006 The Star By BHAG SINGH
A READER wants to know what a default judgement is and whether it is as good
as an ordinary judgement.
The word default judgement when used in the context of the Courts and
decisions made by the Courts has a somewhat technical meaning. Its
implication can differ depending on different circumstances.
There can be a judgement obtained in default of appearance and a judgement
obtained in default of defence. The former refers to situations where the
Defendant has not responded to the Summons at all. The latter refers to
situations where the Defendant had initially responded but subsequently not
filed the Statement of Defence.
A feature of a judgement in default is that it is a technical victory
achieved without the court having an opportunity to make a decision based on
the actual merits of the claim.
Where a default judgement is pronounced, the decision which appears to be
made in favour of the plaintiff is so made by the court, not having before
it available evidence to suggest that the claim is in all ways justified.
In some ways it is akin to a victory on account of a technical walkover in a
football or hockey match where the opposite side does not turn up.
Default judgements, however, do not fall into the same category in terms of
frequency. Default judgements are a more common occurrence compared to
technical walkovers in deciding the winner. Nevertheless a default judgement
does end up in a victory and, sometimes, a final one.
A default judgement can be, and often is, sought to be set aside, and in
many cases successfully if the necessary conditions are met.
Usually a judgement in default can be set aside if an application is made
within a reasonable time or within the specified timeframe where and when
this is provided for. In order to do so the party that has had default
judgement entered against it must be able to show the court that it has a
good defence to a claim. It must show the court that there are good grounds
on which the claim can be successfully challenged. Also, it may be required
to give a good explanation why the party was absent or had failed to file
the necessary papers to prevent the occurrence of the default.
If these conditions are satisfied, then the default judgement may be set
aside. If this happens, then it would be as if the default judgement had
never been entered. Be that as it may, while a person may be able to set
aside a default judgement and be able to defend the action, unnecessary work
would have been done to set aside the default judgement. The responsibility
for this would be clearly attributable to the party that had allowed the
default judgement to be taken in the first place.
Such a party would therefore rightly be penalised by being made to pay all
the costs occasioned by the need to set aside the judgement even though such
a party is successful in doing so and later on succeeds in disputing the
entire claim.
What happens if a default judgement is obtained but no action is taken to
set it aside? In such an event, it stands as a good and valid judgement, and
can thereafter be enforced.
Can a person who has not applied to set aside the judgement raise an
objection on the basis that it is a default judgement in respect of which
enforcement proceedings are instituted?
At the stage when enforcement proceedings are already taken, it would not be
enough to say that the basis of such proceedings is a default judgement.
In such a situation, the only option would be to immediately apply for a
stay of the execution proceedings pending an application to set aside the
default judgement.
Applying to stay the enforcement proceedings means seeking the court’s
indulgence to have these proceedings postponed, allowing the application to
set aside the default judgement to be instituted. Whether such an indulgence
is granted is at the discretion of the court.
Even if the court allows the enforcement proceedings to be stayed, this is
no guarantee that the application to set aside the default judgement will
necessarily succeed. This is because even if there are merits in the
application to set aside the default judgement, the defendant will now be
confronted with an additional hurdle.
The defendant will also need to explain in a satisfactory manner why there
was no response to the initial service of the summons and will have to
further justify the inordinate delay in actually getting down to making the
application to set aside the judgement. In this regard, he may be considered
guilty of laches which would be a serious factor weighing against him.
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