Default Judgment Entered After a Late Appearance
On 4 March 2024, Sligo Engineering Ltd served a plenary summons on Declan Murphy claiming €180,000 for breach of a consultancy agreement. The summons stated that an appearance must be entered within 8 days. Mr Murphy's solicitor entered an appearance on 18 March 2024. On 20 March 2024, Sligo's solicitor, without checking the court file, filed a judgment in default of appearance. The judgment was entered on 21 March 2024. Mr Murphy's solicitor wrote on 25 March pointing out that an appearance had been entered. Sligo's solicitor says the appearance was late and that the judgment is valid. Mr Murphy now applies to set aside the judgment. He has not yet delivered a defence. Sligo says he has no defence and that the application is a delaying tactic. The amount is €180,000; the summons was served by registered post. The court has listed the set-aside application for 15 May 2024.
1. Was the default judgment regular? Explain the effect of the late appearance.
Read the worked answer
The judgment was not regular. Under Order 12, a defendant who has been served with a plenary summons must enter an appearance within the time stated, but a late appearance is still an appearance for the purpose of the action. The critical point is the state of the court file when judgment was entered. Mr Murphy's appearance was entered on 18 March 2024. Sligo filed for judgment in default of appearance on 20 March and the judgment was entered on 21 March. By then an appearance was on record. A plaintiff cannot enter judgment in default of appearance once an appearance has been entered, even if it was entered out of time, unless the court has struck out the appearance or given leave to enter judgment notwithstanding it. Sligo's solicitor failed to check the file. The judgment is therefore irregular and was entered without jurisdiction. The defendant does not need to show a defence to have an irregular judgment set aside; the court will set it aside as of right, ex debito justitiae, because the procedure was wrong.
2. What is the procedure and likely outcome? What costs order should the court make?
Read the worked answer
Mr Murphy should apply by motion on notice, grounded on an affidavit exhibiting the summons, the appearance, the default judgment and the correspondence. The application should be made promptly, as it has been, and should ask the court to set aside the judgment and to permit the defence to be delivered within a directed time. The likely outcome is that the judgment will be set aside. The fact that Sligo says Mr Murphy has no defence is not an answer to an irregular judgment; it is relevant only if Sligo later applies for summary judgment under Order 37 or for judgment in default of defence after the time for delivering a defence has expired. On costs, the court will ordinarily order Sligo to pay the costs of the set-aside application, because the judgment should never have been entered and the application was necessitated by Sligo's error. The court may direct that the defence be delivered within a short period and may give case-management directions. If Sligo wishes to pursue the claim, it should deliver a statement of claim if not already delivered, wait for the defence, and then consider a summary judgment motion.