Rule Change To Clarify Default Judgment Can't Be Entered If Acknowledgement Of Service Or Defence Filed Before Judgment

There have been a number of conflicting first instance decisions on the proper interpretation of CPR 12.3, which sets out the conditions for obtaining judgment in default of an acknowledgement of service or a defence.

In summary, CPR 12.3 provides that the claimant may obtain judgment in default only if the defendant has not filed an acknowledgment of service or defence (as the case may be) and the relevant time for doing so has expired. The cases have identified three possible interpretations of this provision, ie that default judgment may be obtained only if no acknowledgement of service or defence has been filed:

1. at the time of entering default judgment;
2. at the time of filing the application for default judgment; or