WHAT TO DO IF A JUDGMENT IS ENTERED AGAINST YOU
It can be a very scary thing when a judgment has been given by the court against you. Most people find it easier to ignore it hoping that somehow the whole matter will simply go away or take care of itself. This is the worst thing you can do. All this will accomplish is making a bad situation much worse.
There are different ways in which a judgment for money or a non-money order can be made against you.
- You may have gone through an entire civil trial in court where witnesses were called, evidence taken and the law considered, and after weighing both sides of the story and looking at the relevant law the court would hand down a decision finding you responsible for paying or responsible for some other act that has offended the other side. That is a judgment by the court and the court will direct you to pay or act within a certain time or be liable to have that judgment enforced against you.
- You may be the defendant in a matter and filed a defence and the claimant may make an application to the court for summary judgment, that is, a judgment that does not require the matter to go to full trial because, based on the facts in your defence, it is quite clear to the court that you have no case. For example, if the parties have a boundary dispute as to land and a surveyors’ report has been produced or some other conclusive evidence establishing the boundary in favour of the claimant. In such an instance, the court will find for the claimant without the need for a full trial and enter summary judgment. This is another way in which a judgment may be entered against you.
- A claim was served on you and you did not file a defence in time and the claimant made an application to the court to enter a judgment against you in your absence. This is called a default judgment.
- A claim was served on you and you filed a defence but the claimant made an application to strike out your defence on the ground that you have failed to obey a rule or order of the court or for some other reason and the court may strike out your defence and enter judgment against you.
- You served a claim on the defendant and you failed to comply with a rule or an order of the court and the defendant made an application to the court to strike out your claim and enter judgment against you for costs and/or his counterclaim if the defendant had filed one together with his defence.
If you fall under any of these 5 situations you should visit your lawyer immediately for detailed advice on what you can do in the circumstance. For the purpose of this article we will look at only one of these instances (Default Judgment under number 3 above) and how you can best deal with it.
STEPS TO TAKE WHEN DEFAULT JUDGMENT ENTERED AGAINST YOU
If a default judgment has been entered against you the claimant can take no step until he has served a copy of that judgment on you. Avoiding personal service or refusing to take the document will not help you. It will simply allow the claimant to apply to the court for an order to serve you some other way, such as by advertisement in the newspaper or radio or by post or email. It is best to accept service so you can now take steps to control how the matter continues from there. Once you have the judgement in hand you should visit your lawyer at once. DO NOT DELAY. The court is unlikely to look favourably on you later on if you do.
At this point there are two decisions you can make:
- Should you try to make an offer to the other side to settle the amount either in full or by monthly instalments, or
- Do you have good reason to make an application to the court asking the court to set aside the order, that is, the judgment will be withdrawn by the court and you will be allowed to defend the case.
If you choose option 1 you or your lawyer should approach the other party or his/her lawyer and put your offer to them. If they accept then a consent order will be written up and sent to the court for its approval. Once approved you must obey this order as if it had been made by the court or else you can be brought before the court and punished. If the offer is not accepted by the other side, then you may have to proceed to option 2. If option 2 is not for you and you still wish to make payments then you can request a date from the court for an enforcement conference where you will be able to put your financial situation before the court in the presence of the other side, who will be able to question you on how you intend to pay. At the end of the conference the court will make an order as to whether you can pay and if you can pay, how much, and over what period of time. You must be sure to come to court with documents and any other information to prove your earnings and expenses monthly. Documents would include salary slips, bank statements for chequing and savings accounts, land documents, any shares owned in companies along with rental or mortgage receipts, utility bills, child maintenance etc.
If you have chosen option 2 [SEE: Civil Procedure Rules 2002, Rule 9.5] then you or your lawyer, without delay, must file an application with a sworn statement attached to set the default judgment aside. In your application you must give the court a good and strong reason why you did not defend the case and you must give details of the defence you intend to file by attaching a draft copy of the defence. Do not waste the court’s time with this application if you know very well that your reason for not defending is weak and you have no real defence to the case. You will only succeed in getting a further order for legal costs made against you.
If you succeed on your application the judgment will no longer be valid and the court will allow you to file a defence within a certain time and the case will proceed on the path to trial. Make sure that all directions from then on are obeyed by you promptly as the court will be less likely to look favourably upon you again. It is important to note that even though you may win your application you will still have to pay legal costs to the other side as the court views it as your fault that judgment was entered in the first place due to your inaction. Depending on the hearing and the arguments put forward and the time involved costs can range anywhere from VT10, 000 to VT30, 000 and that is not counting your private costs to your own personal lawyer if you have hired one.
In another article we will look at how judgments are enforced and how this can affect you.
DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.
If you have any questions or require clarification on the above please contact the writers at vanuatulaw@gmail.comor contact us at website www.pawthelaw.info