Earl of Selborne LC: ‘When no defence has been put in, then, by Order XXIX, rule 10 of the Rules of 1875, the plaintiff may set down the action or motion for judgment, ‘and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled to.’ and ‘This means that the Court is to exercise some judgment in the case: it does not necessarily follow the prayer, but gives the plaintiff the relief to which, on the allegations in his statement of claim, he appears to be entitled; and if a defence has been put in, though irregularly, I think the Court would do right in attending to what it contains. If it were found to contain nothing, which, if provided, would be material by way of defence, the Court would disregard it. If, on the other hand, it discloses a substantial ground of defence, the Court will not take the circuitous course of giving a judgment without regard to it, and obliging the defendant to apply, under rule 14, to have that judgment set aside on terms, but will take steps to have the case properly tried on the merits.’ Cotton LJ: ‘I think it is the duty of a Judge, when an action comes before him on motion for decree in default of pleading, to look at everything the knowledge of which may enable him to do justice between the parties. The Plaintiff was entitled to move under Order XXIX, rule 10, but, especially having regard to rule 14, I do not think that where a defence has actually been put in, rule 10 can be construed as obliging the Court to pay no attention to it, because it was put in after time and without leave.’
Judges:
Earl of Selborne LC, Cotton LJ
Citations:
(1884) 26 Ch D 66
Statutes:
Rules of the Supreme Court 1875
Jurisdiction:
England and Wales
Cited by:
Cited – Anson (Trading As Party Planners) v Trump CA 7-Apr-1998
The defendant had asked the claimant to organise a substantial party. The account was more than anticipated, and the defendant refused to pay the full amount claimed. She sought leave to appeal judgment in default. The defendant had filed a defence . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 20 April 2022; Ref: scu.220244