Q&As

Does a claimant’s claim continue, where the defendant has a counterclaim, the claimant has failed to file a defence to the counterclaim, or the defendant has applied for default judgment?

read titleRead full title
Produced in partnership with David Willink of Lamb Chambers
Published on LexisPSL on 02/07/2018

The following Dispute Resolution Q&A produced in partnership with David Willink of Lamb Chambers provides comprehensive and up to date legal information covering:

  • Does a claimant’s claim continue, where the defendant has a counterclaim, the claimant has failed to file a defence to the counterclaim, or the defendant has applied for default judgment?

Does a claimant’s claim continue, where the defendant has a counterclaim, the claimant has failed to file a defence to the counterclaim, or the defendant has applied for default judgment?

This Q&A considers the effect on a claim of default judgment on a counterclaim. This is not a question of procedure as such; it is a matter of res judicata and issue estoppel.

As a matter of form, the claim will survive the granting of default judgment on the counterclaim. However, a default judgment is regarded as conclusive of such matters as are strictly necessary for the decision. If the factual connection between the claim and the counterclaim is such that the default judgment on the counterclaim necessarily and with complete precision answers (in the defendant’s favour) the factual questions that the claimant needs to establish in order to prove his claim, then the defendant is able to obtain summary dismissal of the claim.

The question was recently discussed in detail, in the case of Goldcrest Distribution Ltd v McCole. See in particular the discussion of the authorities, at paragraphs 68-86; and the application of the principles to that case, at paragraphs 87-97.

The CPR does not give the court the power to award default judgment on a claim because of a default on a counterclaim, or vice versa; indeed, CPR 12.11(1) carefully provides:

‘Where the claimant makes an

Popular documents