Civil Procedure Rules (CPR)
The Civil Procedure Rules (CPR) govern the conduct of all cases which commenced after 26 April 1999 in the Court of Appeal, High Court of Justice and County Courts in England and Wales.
The rules require cases to be dealt with justly and in a costly and time effective manner. Under the provisions of CPR, once the Claimant has issued a claim and commenced court proceedings, the Defendant must respond within a specified period. Failure to respond may result in default judgment being ordered. The CPR requires an acknowledgement to be filed within 14 days of deemed service of proceedings, and a defence to be filed and served 14 days thereafter.
In 2020, the Civil Procedure (Amendment) Rules 2020 came into force, resulting in changes in the approach to the timings by which judgment is made, and bringing greater clarity to the process.
CPR 12.3 (The old provision)
CPR 12.3 sets out the conditions which need to be satisfied for a claimant to obtain judgment in default of filing an acknowledgement of service or the service or filing of a defence.
There have been several conflicting decisions on whether default judgment can be granted in circumstances where an acknowledgement of service is filed late.
- In Unilever plc v Pak Supermarket [2016] EWHC 3846 (IPEC), the High Court refused to grant default judgment where an acknowledgement had been filed late but before the application for default judgment was issued.
- In McDonald & McDonald v D&F Contracts Ltd [2018] EWHC 1600 (TCC), the High Court granted default judgment where a defence was filed late, but before the application for default judgment was issued.
- In Cunico Resources NV v Daskalakis [2018] EWHC 3382 (Comm), the High Court reached an opposite conclusion and dismissed an application for judgment in default on the basis that the defendant’s acknowledgment of service, while late, had been filed shortly before the application for default judgment.
Three possible interpretations of CPR 12.3 were identified, namely that the court is only allowed to grant default judgment where:
- at the time of judgment, there was no acknowledgment of service and the time for acknowledging service had expired.
- at the time of filing the request for default judgment, there was no acknowledgment of service and the time for acknowledging service had expired.
- a timely acknowledgment of service had not been filed, irrespective of any acknowledgment of service filed later.
The different interpretations of CPR 12.3 and conflicting case law have created uncertainties amongst practitioners as to whether a claimant can obtain judgment in default where the defendant has filed the acknowledgment of service late.
Amendments to CPR 12.3
The interpretation of CPR 12.3 has now been clarified, and the changes came into force on 6 April 2020.
The amendments to CPR 12.3 are set out in the Civil Procedure (Amendment) Rules 2020, SI 2020/82, r 3.
CPR 12.3(1) now provides as follows:
“(1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which 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.”
CPR 12.3 has been amended to include the words ‘at the date that judgment is entered’.
Effect of the amendments to the Civil Procedure Rules
The main effect of the amendments to CPR 12.3 is that in the circumstances where an acknowledgment of service has been filed late, but before the court enters judgment, the court will be precluded from entering judgment in default. If there is a delay between the date on which a request for judgment is made and the date on which judgment is entered, during which either an acknowledgment of service or a defence is filed, judgment in default may not be entered against the defendant.
In addition, in order for the court to establish whether default judgment was correctly entered or not, the court will need to consider the date on which the acknowledgment of service or defence was filed. Default judgments will be set aside on mandatory grounds under CPR 13.2 if the defendant’s response to the claim precedes the entry of judgment.
Conclusion
The amended provision provides clarity to a wide range of practitioners, especially those who routinely issue claims using Part 7. Different procedures apply for part 8 claims.
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