The Perils Of Serving Your Defence Late

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Legal advice from Luke Patel of Blacks Solicitors

In court proceedings there is a mechanism to prevent a Defendant from simply ignoring a claim. This is known as ‘Default Judgment’ and it allows the Claimant to obtain judgment if the Defendant fails to defend the claim. This happens in a surprisingly large number of cases and represents the easiest path to obtaining a judgment from the Claimant’s point of view.

In practice there are two points at which the Claimant can apply for Default Judgment. Upon receipt of the Claim Form the Defendant has (usually) 14 days in which to file an Acknowledgement of Service (“the Acknowledgment”). If the Acknowledgement is filed, the Defendant then has a further 14 days, 28 in total, to file a Defence. The Claimant can apply for judgment in default of the Acknowledgement or in default of the Defence.

The recent case of McDonald v D&F Contracts Limited examined the issues of timing in the granting of Default Judgments. In that case the claim was served by the McDonalds on 19 September 2017 with the deadline for the service of the Acknowledgement by 10 October (an additional 7 days over the usual 14 was because D&F was a Scottish company and therefore constituted as being “abroad” and so had an extended period to respond). D&F did not file the Acknowledgement but subsequently filed a Defence on 31 October. The McDonalds’ application for judgment in default of the Acknowledgement reached the Court on 01 November. The Court initially refused to grant Default Judgment because a Defence had been filed; the McDonalds challenged this.

The decision the Judge arrived at confirmed what seems to be the majority of past decisions, in confirming the strength of the Default Judgment mechanism. Without an application for an extension, a late Acknowledgement of Service or Defence does not prevent Default Judgment being granted. Slow Defendants are therefore left in the undesirable position of having to apply to set aside that judgment and prove why they should be permitted to defend the claim despite their default.

This decision was made against the backdrop of a claim that might give many judges pause for thought. The claim was for around £800,000 and brought by homeowners against a construction company and the Judge was concerned by the lack of details or the legal merits of the claim. There also appeared to have been previous adjudication proceedings which had found against the McDonalds but which they were now seeking their costs. Faced with this remarkable claim, however, the Defendant had filed a (late) Defence of only a few lines and had not appeared at the hearing, with the result that there was nobody present to oppose the Claimants’ challenge and stave off the Default Judgment.

This case illustrates the need for Defendants to act quickly when served with a Claim Form or face the risk of losing their opportunity to defend the claim and instead find judgment being entered against them without any judicial examination of the Claimant’s case. If you are involved in any proceedings and require assistance then Blacks Solicitors can help. Please contact Luke Patel on 0113 227 9316 or email him at “LPatel@LawBlacks.com”.