Service of Process and Default Judgments
This domain tests the bridge between issuing a writ and obtaining judgment where the defendant does nothing. The examiner wants the modes of service under Order 7 of C.I. 47, the proof required, and the distinction between regular and irregular default judgments.
Modes of service
- Personal service on an individual is the primary mode. Corporations are served at the registered office or on a director, secretary or principal officer; partnerships on a partner; the State through the Attorney-General.
- Where personal service is impractical, the plaintiff may seek substituted service - advertisement, service at a last known address, or delivery to a person apparently in control of the premises - but only on order of the court, supported by an affidavit showing the attempts made.
- Service out of the jurisdiction requires leave. Proof of service is by affidavit of service or the bailiff's return, and the record must contain it before default judgment is entered.
Default judgment (Order 11, C.I. 47)
- Where the defendant fails to enter appearance, or having appeared fails to file a defence within the time endorsed on the writ, the plaintiff may apply for default judgment.
- On a liquidated demand, judgment may be final for the sum claimed with costs. On unliquidated damages, judgment can only be interlocutory, with damages assessed later. Certain classes of case, and defendants under disability, are excluded.
Setting aside
A judgment entered without valid service or in breach of the rules is irregular and is set aside almost as of right, without conditions. A regular judgment is set aside on the court's discretion, the defendant showing an explanation for the default and a defence on the merits that raises a triable issue, sometimes on terms as to costs or payment into court.
Worked example
A writ is served by pushing it under the defendant's door, no appearance is entered, and the plaintiff signs judgment for a liquidated sum. Reasoning: unless the rules permit that mode of service or a substituted-service order was obtained, service is not effective; the judgment is irregular, and the court will set it aside as of right, leaving the plaintiff to serve properly and start the default clock again.
Traps that cost marks
Signing final judgment on an unliquidated claim; omitting the affidavit of service from the record; assuming service on a director's home is service on the company; forgetting that time for defence runs from valid service, not from issue; and treating an irregular judgment as requiring a merits defence before it is set aside.