Default Judgement International

EU & Other Convention Cases

Where the summons has been issued out of the jurisdiction under the Judgements Regulation or the Lugano Convention, the claimant is not entitled to enter a judgement except with leave of Court. An application for leave to enter judgement must  be made on notice and supported by an affidavit setting out the deponent’s belief:

• that the claim is one to which the Regulation, Convention etc. apply;
• that no other Court has exclusive jurisdiction thereunder;
• that the summons or notice of the summons were served out of the jurisdiction in due and proper form.  He must give the grounds of belief in each case.

In case of default of appearance by a defendant to an originating summons, where required for that the claim in question, the claimant shall

• in the case of a plenary summons, deliver a statement of claim by filing the same in the Central Office;
• in the case of a special summons file a grounding affidavit in the Central Office; and
• in the case of a personal injuries summons, a summary summons or other originating document, file an affidavit in the Central Office verifying the facts relied on and may thereupon apply to the court for a judgement in default of appearance.

Procedure I

In the case of a plenary summons, the plaintiff must deliver a statement of claim in the central office.  In the case of a special summons, a grounding affidavit is required.  In the case of personal injury summons, summary summons and other summons file an affidavit verifying the fact.

The plaintiff may then make an application to the court for a final judgment.  This must be made by notice to the defendant.  An affidavit must be given supporting the applicant\’s belief that the claim is subject to the EU Regulations,  that the court has jurisdiction and that no other court has jurisdiction.

A Service Regulation judgment may not be given until it is established that the documents have been served by a method prescribed by the internal of the state in which the defendant was served or the document was actually delivered to the defendant or his residence by another method provided by the Service Regulation.

Before an application may be made for judgment in default of appearance the plaintiff must file a statement of claim or other grounding documents with an affidavit verifying the facts in which they are based.  The leave or consent of the court is required. Affidavits must prove the service and proper jurisdiction.

The court may consent to enter judgment where there is no certificate of service of delivery from the other state\’s agency subject to conditions. The document must have been transmitted by one of the means permissible under the EU service regulations. A period of time not less than six months as considered adequate by the court has elapsed. No certification of any kind has been received from the agency even though a reasonable effort has been made to obtain it through competent authorities in that state.

Appealing

There is provision for a grant of extension of time for appealing a judgment obtained in default under the international rules.  An application to extend the time for appealing any judgment obtained in default of appearance shall be made by motion on notice and shall be grounded upon the affidavit of, or on behalf of, the moving party and the Court may, if satisfied that:

• the application was made within a reasonable time after the defendant had knowledge of the judgment; and
• the defendant, without any fault on his part, did not have knowledge of the originating document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal it; and
• the defendant has disclosed a prima facie defence to the action on the merits, extend the time for appealing same, on such terms and conditions as appear just.

No such application to set aside a judgment obtained in default of appearance shall be entertained if not made within a time that the Court shall deem to be reasonable.  No application to extend the time for appealing the judgment shall be entertained in respect of judgments concerning status or capacity of persons.

Hague Convention

Similar provisions apply under the Hague convention.  A judgment in default of appearance is only given if the document is served by a method prescribed by the internal law of the state to which it is addressed or provided the summons and notice of summons were actually delivered to the defendant or to his residence by another method provided by the convention.

Service or delivery must have been undertaken in sufficient time to enable the defendant to defend.  Proof of compliance with these requirements may be by way of certificate of service from the authority of the state concerned.

The Convention requires that the authority of the state concerned complete a certificate of service stating the document has been served specifying the method place and date of service to the person to whom the document was delivered.  The certificate of service from the authority or from its agents must be sent to the person who sought the request. The certificate is presumptive evidence of its contents.

Hague Convention; Consent to Enter

The court may give consent to enter judgement if no certificate of service has been received from the latter country provided the document was transmitted by one of the methods allowed by the Convention period of time is not less than six months considered adequate has elapsed since transmission and no certificate has been received and every reasonable effort has been made to obtain it through authorities of the state concerned.

An application for a judgment in default of appearances is by application to court based on affidavit.  It must verify the plaintiff\’s claim and steps taken in the proceedings.  It must affirm certain matters required under the rules.

Hague Convention; Setting Aside

There are provisions to set aside a judgment obtained in default or to extend the time for appealing it.  This is made by application to the court on affidavit.  It must be shown the application is made within a reasonable time after the defendant became aware of the judgment, that the defendant by default did not acknowledge service of the document in sufficient time to defend or have knowledge of the judgment in sufficient time to appeal and the defendant has a prima facie case to defend the action.

In such an application the judgment may be set aside or the time for appeal may be extended on such terms as the court sees fit to designate.