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?

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Produced in partnership with David Willink of Lamb Chambers

Published on: 02 July 2018

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

David Willink

Lamb Chambers

As a civil servant in the Lord Chancellor’s Department, now the Ministry of Justice, David gained extensive experience in government, including responsibility for civil law reform in the areas of contract, trusts and privacy & freedom of expression. He appeared before Select Committees in both Houses of Parliament, and represented the UK in Brussels, Luxembourg, Strasbourg and Salzburg. He was responsible for the defence of domestic libel law in Steel & Morris v United Kingdom [2005] ECHR 103 (‘McLibel’). He also held responsibility for advice on appointments to Queen's Counsel and senior judicial office.

At the Bar, he has maintained a broad civil practice, acting for claimants and defendants across the areas in which chambers practise. He accepts Direct Access instructions in appropriate cases. In addition, he has developed a practice in all aspects of ecclesiastical law, and is the Deputy Chancellor of the Dioceses of Salisbury and St Albans. He is also a Deputy District Judge.

He writes extensively, both for ��˾��ҹ�� and for other print and online publications.

Jurisdiction(s):

United Kingdom

Key definition:

Default judgment definition

What does Default judgment mean?

Judgment on a claim without a trial, where the defendant has failed to file either an acknowledgment of service or a defence.

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