Where a Defendant fails to properly respond to a Claim within prescribed periods the Claimant can apply for a “Default Judgment” against the Defendant e.g. if for a money claim, for the full amount claimed. The Judgment stands and is enforceable unless an application is made to set aside the Judgment, which is not always easily done.
But what happens if one co-Defendant files a Defence but the other doesn’t resulting in a Default Judgment being entered against him? Does this bind the other co-Defendant, because how can a Judgment be entered against one Defendant determining the case, but then the other Defendant continue to fight the case on the same facts?
Strangely enough, even though this is not an entirely uncommon occurrence, the Courts have never been asked to determine this question until the recent case of Page v Champion Financial Management Ltd (2014) EWHC 1778 QB.
In that case (which does not appear to have been the subject of an appeal), the Judge decided that a Default Judgment against one Defendant did not prevent his co-Defendant continuing to defend a case. It would be wrong to prevent the co-Defendant from putting forward his defence as the principles of Res Judicata (re-litigating previously decided matters) should not apply where there had been no determination of the facts of the case. The Judge also decided that it would be open to the co-Defendant to apply to set aside the Default Judgment even though not obtained against him.
This is obviously good news for co-Defendants who have properly defended cases, but weakens any tactical advantage that Claimants may have hoped to have gained where there are perceived differences or issues between Defendants.
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