6. What happens if the defendant does not file an acknowledgment of service form or a defence?

6. What happens if the defendant does not file an acknowledgment of service form or a defence? 

If a defendant fails to take required steps within the prescribed time limits, the plaintiff may be entitled to obtain judgment in default without a full trial. 

In simple terms, if the defendant does not respond or does not file a defence, the court may allow the plaintiff to win the case automatically, or partly automatically, depending on the type of claim. 

This mechanism is designed to dispose of actions where there is no genuine dispute or where a party is unjustifiably delaying proceedings. This process occurs in two distinct stages: 

Stage 1: Failure to give notice of intention to defend 

A defendant must file an Acknowledgment of Service (“AoS”) within 14 days of being served with the writ of summons. If he fails to do so, or if he files the form stating he does not intend to contest the proceedings, the plaintiff may enter judgment in favour of his claim. In such a case, a full trial is not required. 

For standard claims, entering judgment is a purely administrative act performed by the Registrar. It does not require a court hearing or judicial discretion. 

To obtain judgment, the plaintiff must provide the court with proof of service, such as an affidavit/affirmation of due service of the writ of summons, the defendant's acknowledgment, or a solicitor’s indorsement accepting service. 

Stage 2: Failure to serve a defence 

If the defendant gives notice of intention to defend but then fails to serve a defence within the time limit (generally 28 days after the deadline for AoS or receipt of the Statement of Claim, whichever is later), the plaintiff can enter judgment in default of defence. 

Critically, if the defendant has filed an AoS, the plaintiff must give at least 2 clear days’ notice in writing of his intention to enter judgment in default of defence. This notice acts as a final warning and effectively extends the defendant's time to serve the pleading by 2 days. 

Types of claims and forms of judgment 

If the claim is related to a debt or liquidated damages (i.e. where the amount of the claim is fixed and ascertainable), such as an action on a dishonoured cheque, the plaintiff may enter final judgment for the amount claimed and the relevant legal costs. A final judgment is a decision that brings the proceedings to an end by disposing of the subject matter of the action, such that nothing remains for the court to determine, except perhaps ancillary matters like costs, and the plaintiff can take steps to enforce the judgment. 

Interlocutory judgment will be entered instead if the plaintiff is claiming for unliquidated damages (i.e. where the amount of damages has to be assessed by the court), for example, for loss of profits or damages for injury to person or property. In such a case, the plaintiff will have to appear in court so that a judge or a master can assess the amount of damages he is entitled to. This means the court accepts that the defendant is liable, but the amount of compensation still has to be decided later by a judge or master. 

If the claim is related to the delivery of goods, the plaintiff has the option to enter interlocutory judgment for the delivery of the goods or their value to be assessed or solely for their value to be assessed. To obtain specific delivery without the option of payment, the plaintiff must apply by summons supported by affidavit/affirmation. 

If the plaintiff is claiming possession of land, and the case is not a mortgage action, the plaintiff may enter final judgment for possession. 

If the writ includes multiple categories of claims (e.g., debt and damages), the plaintiff can enter a combination of final and interlocutory judgments as appropriate. 

Other claims 

If the claim involves remedies such as injunctions (i.e. an order requiring a party to perform or refrain from a specific act), specific performance (i.e. an order requiring a party to fulfil a contractual obligation), declarations (i.e. a formal court statement about the parties’ legal rights), or accounts (i.e. a detailed calculation of money or financial dealings between the parties), the plaintiff cannot obtain judgment if the defendant fails to file an AoS or files the form stating he does not intend to contest the proceedings. 

The plaintiff must proceed as if the defendant had defended the action. If a Statement of Claim was not served with the writ, the plaintiff must serve one on the defendant. If the defendant subsequently fails to serve a defence, the plaintiff may apply to the court for judgment in default of defence by summons. 

For these more complicated remedies, the court must still consider the matter before granting judgment. 

Actions requiring leave of court 

A default judgment may be entered in the following actions only with the court’s permission (leave): 

1. Actions against the Government;   
2. Mortgage actions;   
3. Moneylender actions; and   
4. Actions involving hire-purchase or conditional sale agreements. 

Excluded actions 

No default judgments may be entered against a defendant in the following types of actions: 

1. Admiralty actions in rem; 
2. Probate actions; 
3. Third party proceedings; and 

4. Actions against a person under disability unless the court has appointed a guardian ad litem.