Akenhead J's guidance to practitioners seeking to enforce adjudicators' decisions where the defendant did not participate in court enforcement proceedings actively or at all

Technology and Construction Court
Akenhead J
12 November 2009

When it became clear that it was likely that a defendant is not going to participate in court for any or no reason, a claimant should consider carefully the desirability of proceeding by way of obtaining a judgment in default. The fact that the time for the lodging of the acknowledgment of service was abridged to five days (or such other period as the court might order) did not mean that a claimant could not obtain judgment in default of the filing of the acknowledgment of service when that abridged time had elapsed. Once it was clear that there has been service of the claim form and the other documents called for by the TCC's order, there was no procedural reason why judgment in default should not be obtained. Whilst if an acknowledgment of service was lodged before any judgment in default was obtained, matters might have to proceed along the usual course, the TCC would encourage claimants and those advising them to apply administratively for judgment in default, where the acknowledgement was not served within any abridged time. If there was a good reason why the acknowledgment of service had not been filed, a defendant was protected by such rights as it had to apply to the court to have the judgment in default set aside. The main reasons for the desirability of entering judgment in default were to do with costs and court listing insofar as there should be in many cases a significant saving of costs to a claimant, which had to be in a claimant's interest, particularly where a defendant was in financial difficulties. Also there would be a saving in the court's time because it would then be possible for other matters to be listed for the time when the summary judgment application hearing had been listed once that date was vacated following a judgment in default. Where it became clear, that the defendant was unlikely to participate in any hearing, regardless of whether it had filed an acknowledgement of service, a claimant could also save time and money by applying on notice to the defendant to bring forward the hearing on the basis that less time might be needed, costs would be reduced, court time would be saved and the claimant would get its judgment quicker.