Default judgment refused

[steve70]

An elderly friend of mine is owed some money, about £8000. We issued a claim form and didn't get a defence or acknowledgement of service by the deadline.

I allowed a couple of weeks to pass and rang the court to double check if they had received anything - nothing.

I applied for Default Judgment.

A few days later it was sent back to me saying it was returned because a defence had been filed and shortly afterwards the Defendant emailed me to say he had admitted the claim - I asked him to send to me what he had sent to the court (he didn't).

Then the Court sent me an Allocation Questionnaire and a standard letter saying that a Part Admission and Defence has been filed and is enclosed - except they crossed out the references to a Defence being filed/enclosed. The Part Admission form does require the Defendant to include a Defence for the part he is not admitting. He admitted 50% of the debt. He also asked for time to pay, but didn't complete most of the form about income etc.

I've read CPR12 as best I can. My understanding is that since no Defence has been filed/served then I am entitled to Default Judgment. The exception would be under 12.3(3)(c)(ii) if the Defendant has filed a FULL admission (or paid up etc).

The allocation fee is about £220 - but I really don't see why this case needs to be allocated now. It seems wrong to do so in the absence of a Defence. Strangely the questionnaire is dated correctly (a couple of days before I received it) but the deadline is backdated to a month earlier.

So my questions are:
1) Am I entitled to Default Judgment, and if so how can I avoid just getting my request returned?
2) Would be it be sensible to fill in the allocation questionnaire? If so, since the amount in "dispute" is now £4000 could I save costs by requesting small claims track and pay the lower fee?
3) Is there any other order I could request - eg Summary Judgment, an application that the defendant be ordered to enter a defence etc.

As I think there is a real chance we won't be able to enforce any judgment, I really want to keep my friend's costs to a minimum. He also finds it quite stressful.

Thanks for any ideas.

[Guest]

Re: Default judgment refused

The danger in pressing ahead for any kind of judgment, in particular a judgment in default, is that it will be very easy to have set aside.

If, as you suggest, there is little real chance of enforcing a judgment and in the interests of keeping your friend's costs to a minimum, why not simply drop it altogether?

Alternatively, have you pursued any other methods of debt collection?

[strangewayofsavin]

Re: Default judgment refused

A few days later it was sent back to me saying it was returned because a defence had been filed and shortly afterwards the Defendant emailed me to say he had admitted the claim - I asked him to send to me what he had sent to the court (he didn't).
.

I would suggest you find out exactly what the defendant admitted to, before you proceed on their behalf, and what repayment plan they agreed too.
So:
1) depends on the acknowledgment of debt
2) yes and yes (dependant on the amount acknowledged by the defendant).
3) not really if their has been debt acknowledgement (but someone else more knowledgeable will be along shortly).

[steve70]

Re: Default judgment refused

Thanks for the replies

The danger in pressing ahead for any kind of judgment, in particular a judgment in default, is that it will be very easy to have set aside.

If, as you suggest, there is little real chance of enforcing a judgment and in the interests of keeping your friend's costs to a minimum, why not simply drop it altogether?

Alternatively, have you pursued any other methods of debt collection?

I feel the Defendant wouldn't set aside. I believe he just isn't really engaged with the litigation - had he wished to play a procedural game he would deny service or at least not admit half the debt.

Whilst I think there is a real chance of not getting our money, the amount involved is too big for my friend to accept (yet) he won't get it. So it's in part an emotional decision, but also I think it is too early to say we can't get it.

I'm not sure what methods you had in mind, but after a few months of a friendly approach the guy become uncommunicative. Incidentally, he has always said to my friend, including in writing, that he owes the money.

I would suggest you find out exactly what the defendant admitted to, before you proceed on their behalf, and what repayment plan they agreed too.
So:
1) depends on the acknowledgment of debt
2) yes and yes (dependant on the amount acknowledged by the defendant).
3) not really if their has been debt acknowledgement (but someone else more knowledgeable will be along shortly).

On N9C, the defendant admitted to exactly 50% of the debt and wrote that on the form (about £4000). He offered to pay £10 a month, but left most of the questions about his means blank.

I "feel" that technically I'm entitled to enter judgment for the amount he admitted, and apply for default judgment for the remainder (as it is undefended). I just feel the court were wrong to send the allocation questionnaire in the absence of a defence. As I say, with the questionnaire they sent me an "N152 Notice that a Defence/Counterclaim has been filed" - but then hand crossed out the bit where it says a Defence has been filed.

[strangewayofsavin]

Re: Default judgment refused

Thanks for the replies



IOn N9C, the defendant admitted to exactly 50% of the debt and wrote that on the form (about £4000). He offered to pay £10 a month, but left most of the questions about his means blank.

.

Then Cets advice should be taken, cut your loses and do not increase the debt with court costs, debt acknowledgement is paramount, and the only way to reduce the debt, is by counter claim, and this will cost more than it will save, put it down to bad experiance.

[righty]

Re: Default judgment refused

Threaten Bankruptcy Tell 'em you'll issue a Statutory Demand

[CleverClogs]

Re: Default judgment refused

Alternatively, have you pursued any other methods of debt collection?

Such as assigning it to specialists such as MacKenzie Hall?