CHRISTOPHER GEORGE GREENE
DEFAULT OF PLEADINGS (Order 22)
In every action the plaintiff must file a statement of claim and the defendant a defence to that
statement of claim. And if the defendant makes a counterclaim the plaintiff must file a defence to
that counterclaim. These are the essential pleadings and if they are not filed, then the other side may
proceed in default.
PRINCIPLES
Dismissal for want of prosecution – The court does not make the decision to dismiss lightly. The
plaintiff must have been guilty of an inordinate and inexcusable delay in filing the statement of
claim which has given rise to a substantial risk that it is not possible to have a fair trial of the issues
in the action or that the defendant has been prejudiced in some way. And, where the court decides
to dismiss the action, the plaintiff may apply, that the order dismissing his action be set aside, and
the action restored. In his application he must show good and sufficient cause why the action should
be restored. And if the court is satisfied, it may order that the action be restored on such terms as it
thinks fit.
Setting Aside – See Default of Appearance. The effect of default of filing a defence or defence to
counterclaim is the same as that of default of appearance, i.e. that the defendant or plaintiff is
deemed to have admitted all the allegations contained in the statement of claim, or the counterclaim,
as the case may be (CRIBB V FREYBERGER, 1919).
PRACTICE
Statement of claim
Under Order 22, Rule 1 if the defendant enters appearance to a generally indorsed writ but the
plaintiff fails to file a statement of claim within 10 days as required by Order 21, Rule 1, or within
such time as the court may direct, then the defendant may make an application for the action to be
dismissed with costs for want of prosecution. And the court may grant the application or make such
order as it thinks fit.
Defence & Defence to Counterclaim
Judgment in default may be given under Order 22, Rules 2 – 8 against a defendant who has failed
to file a Defence, or under Order 22, Rule 9 against a plaintiff who fails to file a Defence to
Counterclaim. Or against a defendant whose defence has been struck out, for instance under Order
27, Rule 18, whereby the court may strike out the defendant’s defence for a flagrant non-compliance
with an order for general or specific discovery.
CHRISTOPHER GEORGE GREENE
Judgment may also be given in respect of particular claims or part of a claim if the defendant fails
to traverse them in his statement of defence, and proceedings will continue in respect of the claims
or part of the claim which is put in issue (Order 22, Rule 8 (1).
The type of judgment in default which is entered will depend on the individual claim. Where the
plaintiff has various claims, the judgment entered in respect of each claim will depend on the rules
governing judgment in default for that particular claim (Order 22, Rule 6).
Liquidated sum
If the claim is for a liquidated sum of money then the plaintiff can enter final judgment for the sum
claimed, interest and for costs (Order 22, Rule 2).
Unliquidated sum
If the claim is for an unliquidated sum of money, then the plaintiff can enter interlocutory judgment
for damages to be assessed and costs (Order 22, Rule 3).
Detinue
If the claim is in detinue, then under Order 22, Rule 4 the plaintiff has 3 options: (1) enter
interlocutory judgment in the alternative for delivery of the goods or their value to be assessed and
costs, (2) enter interlocutory judgment for the value of the goods to be assessed and costs, or (3)
apply by judge’s summons supported by affidavit for final judgment to be given for specific
delivery of the goods.
Land
If the claim is for possession of land, the plaintiff may enter final judgment for possession (Order
22, Rule 5 (1). If the claim for possession includes a claim(s) for mesne profits, arrears of rent, double
value, breach of contract or damage to premises, then the plaintiff can enter final judgment for the
possession as well as final or interlocutory judgment for the other claims (depending on whether
they are liquidated or unliquidated) (Order 22, Rule 5 (2). However, where there are multiple
defendants, the plaintiff cannot enforce judgment against one unless judgment has been given
against all of them.
Mortgage
If the claim is based on a mortgage, then the plaintiff must seek leave to enter judgment in default
of a defence (Order 22, Rule 10 (1) & Rule 5 (4). And, under Order 22, Rule 10 (2), the application
for leave must be supported by affidavit to which is exhibited evidence entitling the plaintiff to
CHRISTOPHER GEORGE GREENE
relief. And the court may direct that notice be given to the defendant or such other person the court
considers proper.
Other claims
It is impossible for Order 22 to list all the possible types of claims. So, under Order 22, Rule 7 if the
claim made by the plaintiff is not covered by Order 22, then the plaintiff must make an application
by summons or motion (subrule 3) to the court for leave to enter judgment with notice on the
defendant, and the Court will decide what judgment should be given.