"I received court papers but did not respond. Can I still defend the case?"

A business owner receives an envelope containing a writ and statement of claim.

He reads the amount demanded but does not understand the court procedure. He believes the claim is exaggerated and expects the plaintiff’s solicitor to contact him again.

Several weeks pass.

He then receives a letter stating that judgment has been entered against him because he failed to respond.

He asks:

“The Court never heard my side. Can the judgment still be challenged?”

Possibly - but immediate action is required.

Ignoring court papers can allow the opposing party to obtain a judgment without a full trial.

1. First, identify what was served

Court proceedings may begin or continue through different documents, including:-

• a writ;

• an originating summons;

• a statement of claim;

• a notice of application;

• an affidavit;

• a bankruptcy notice;

• a judgment debtor summons;

• a subpoena; or

• an order of the Court.

Each document serves a different purpose and may carry a different deadline.

Do not assume that every document is merely a request to attend court on the date printed on the front page.

Some steps must be taken before that date, including entering appearance, filing a defence or filing an affidavit in response.

The Rules of Court 2012 govern many aspects of civil proceedings in the High Court and Subordinate Courts.

2. What does entering appearance mean?

In an ordinary action commenced by writ, a defendant will generally need to enter appearance within the applicable period after service.

Entering appearance formally records that the defendant intends to participate in the proceedings.

It is not the same as filing a defence.

A defendant may therefore need to take at least two separate procedural steps:

1. enter appearance; and

2. file and serve the defence within the applicable time.

The precise deadline should be calculated from the documents, date and method of service and the applicable rules.

Calling the plaintiff, replying through WhatsApp or telling the plaintiff’s solicitor that the claim is disputed does not ordinarily replace the required court filing.

3. What happens if no appearance is entered?

Depending on the nature of the claim and compliance with the applicable procedural requirements, the plaintiff may seek judgment in default of appearance.

For a straightforward claim for a fixed sum, judgment may potentially be entered for the amount claimed together with interest and costs.

Other forms of relief may require different procedures or an assessment by the Court.

A default judgment does not necessarily mean that the Court conducted a full trial and rejected the defendant’s evidence.

It may mean that the procedural time for responding expired without the defendant formally participating.

Nevertheless, the judgment remains effective unless it is set aside, varied, stayed or otherwise dealt with by the Court.

4. What if appearance was entered but no defence was filed?

Entering appearance alone does not complete the defence of the action.

If the defendant fails to serve a defence within the prescribed period, the plaintiff may seek judgment in default of defence where the rules permit.

This sometimes occurs when a defendant enters appearance personally but assumes that the Court will later request his version of events.

Civil proceedings generally require the parties to file their respective cases according to the applicable timetable.

The Court does not prepare the defence for either party.

5. Can a default judgment be set aside?

The Rules of Court 2012 give the Court powers to set aside or vary default judgments in appropriate circumstances.

The outcome depends on matters that may include:-

• whether the judgment was regularly obtained;

• whether the originating process was properly served;

• whether the procedural requirements were followed;

• the reason for the defendant’s failure;

• how quickly the defendant acted after learning of the judgment;

• whether there is a defence with merit;

• prejudice to the parties; and

• the overall justice of the case.

A defendant should not assume that saying “I did not know what to do” will automatically result in the judgment being set aside.

The application should place the relevant facts and proposed defence before the Court through proper affidavit evidence.

6. Was service properly effected?

Service is often an important issue.

The defendant should establish:-

• what documents were received;

• who received them;

• when and where they were received;

• whether personal or substituted service was used;

• whether the documents were sent to an old or incorrect address;

• whether the recipient was authorised to receive them; and

• whether any court order concerning service had been obtained.

Keep the envelope, cover letter, acknowledgment of receipt and any messages relating to delivery.

However, avoiding or refusing to collect documents is not a reliable strategy. The rules allow alternative methods of service in appropriate circumstances.

A defendant should not deliberately evade service and later assume that the proceedings are invalid.

7. A possible defence must be explained properly

A defendant applying to set aside a regular default judgment will ordinarily need to demonstrate more than a general disagreement with the claim.

Statements such as the following are usually insufficient without supporting facts:-

• “The amount is wrong.”

• “I do not owe them anything.”

• “The plaintiff is lying.”

• “We had another agreement.”

• “I already paid.”

The defendant should identify:-

• the relevant agreement;

• the actual transaction;

• payments made;

• disputed invoices;

• failures by the plaintiff;

• applicable set-offs;

• supporting communications; and

• the defence that would be pleaded if the judgment were set aside.

The Court does not necessarily determine the entire trial during the setting-aside application. However, it must be able to see that the proposed defence is genuine and has sufficient merit to justify reopening the matter.

8. Delay can weaken the application

Once the defendant becomes aware of the judgment, time should not be wasted.

An unexplained delay may suggest that the defendant accepted the judgment or is only reacting because enforcement has begun.

Immediate steps may include:-

1. obtaining a complete copy of the court papers;

2. conducting a court file search;

3. confirming the date and basis of the judgment;

4. reviewing the affidavit or evidence of service;

5. collecting the defence documents;

6. preparing the proposed defence;

7. filing the appropriate application; and

8. considering whether a stay of execution is required.

Negotiating with the plaintiff does not necessarily suspend the judgment or enforcement process.

Any agreement to withhold enforcement should be recorded clearly.

9. Applying to set aside does not automatically stop enforcement

A judgment creditor may take enforcement steps while a judgment remains effective.

Depending on the judgment and available information, these may include proceedings directed at bank accounts, movable property, debts owed by third parties or examination of the judgment debtor.

Filing an application to set aside the judgment does not necessarily create an automatic stay.

If enforcement is imminent, the defendant may need to seek an appropriate stay and explain the urgency to the Court.

The defendant should also comply with any existing order unless and until the Court grants different directions.

10. Should the defendant contact the plaintiff directly?

A defendant may explore settlement, but communication should not replace compliance with court deadlines.

A hurried message could also contain an unintended admission or an offer inconsistent with the intended defence.

If discussions take place, distinguish between:-

• an open explanation of the defendant’s position;

• a request for an extension;

• a proposal to suspend enforcement; and

• a genuine settlement offer.

The plaintiff may agree to consent terms, instalments or an application to set aside. It is equally entitled to refuse and insist that the defendant make the appropriate court application.

Prepare for the procedural deadline even while negotiations continue.

11. What if the claim is partly correct?

The defendant’s position does not need to be entirely all-or-nothing.

It may admit a specific amount while disputing:-

• the balance;

• interest;

• penalties;

• particular invoices;

• the plaintiff’s performance;

• legal costs; or

• liability against one of several defendants.

A properly drafted defence can identify what is admitted, what is denied and what the plaintiff must prove.

If settlement is commercially preferable, the parties may consider recording payment terms through a settlement agreement or consent judgment.

The consequences of default under that arrangement should be understood before it is signed.

12. Do not wait for the Court to call again

The safest approach upon receiving any court document is to obtain advice immediately.

Bring:-

• every page received;

• the envelope or proof of delivery;

• the underlying contract;

• correspondence;

• invoices;

• payment records;

• relevant company documents; and

• a clear chronology.

The available response may depend on a deadline calculated from service. Several days spent deciding whether the document is serious can materially affect the options available.

Receiving a writ does not mean the plaintiff has already won.

Ignoring it, however, may allow the plaintiff to obtain judgment before the defendant’s case is ever presented.