This article deals with entering a Judgement in Default of a Defence. This is where a Defendant has entered a Memorandum of Appearance but after the relevant time period has passed, they have still failed to file a defence.
THE COURT’S RULE
Under the Order 19 of the Rules of Court 2012, a Plaintiff can enter a Judgement in Default where a Defendant has failed to file and serve their defence in time. Prior to entering a Judgement in Default, do check to see the type of relief sought. Liquidated damages[1] have different requirements in comparison to suits in which specific performance is sought.
A LAWYER’S ETIQUETTE
Usually, upon failure to follow the filing timelines, the Plaintiff can seek a “win” wherein they need not squabble about the merits of the case and obtain a judgement. This saves time, energy and most importantly costs.
However, if the Defendant is represented, the Plaintiff’s solicitor, as a practitioner, owes a duty to inform the Defendant of the deadline pursuant to Rule 56 of the Legal Profession (Practice and Etiquette) Rules (“LPPER”) 1978. These guidelines are placed to ensure that solicitors do not take advantage of a delay in filing pleadings[2] and to foster a fraternity of the members of the Bar wherein tactical moves are discouraged.
WHERE DOES THE COURT SIT?
When reading the two laws above, it would seem that there is a conflict. Would a solicitor, who owes a duty to his client, which includes taking all reasonable efforts to achieve his Client’s goal such as obtaining a Judgement in Default, have to subvert that duty in order to comply with the LPPER?
The Court has held that should a solicitor obtain a Judgement in Default without complying with the LPPER, the Plaintiff is still entitled to the Judgement in Default[3]. This is because the Rules of Court determine and effect court procedure[4] not the LPPER. Non-compliance of the LPPER would only affect the practitioner in their professional capacity and at most be grounds for disciplinary action.
As such, a practitioner need not provide the said notification to ensure the Judgement in Default is regular.
CONCLUSION
All this begs the question, is the notification necessary? Based on case law, no it is not.
However, as a solicitor, one has a duty to his fellow practitioners. While we have regretfully adopted the American Practice of win at all costs, as solicitors and advocates we should not forget the decorum, duties and etiquettes of the Bar. Therefore, this author humbly suggests to give your fellow solicitor that courtesy call just in case they may have been burdened with too much on their plate and just overlooked the filing.