Setting aside a default judgment in the parish court

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November 28, 2016

If a default judgment is entered against you due to the fact that you missed your court date in the parish court, you have the right to apply to the said court to set aside that judgment.

In the first place, the authority of the parish court judge to give a judgment in default of the defendant's appearance is allowed in Section 186 of the Parish Court Act.

The Act provides that: "If on the day so named in the summons, or at any continuation or adjournment of the court or cause in which the summons was issued, the defendant shall not appear or sufficiently excuse his absence, or shall neglect to answer when called in court, the magistrate, upon due proof of the service of the summons, may proceed to the hearing or trial of the cause on the part of the plaintiff only; and the judgment thereupon shall be as valid as if both parties had attended."

However, it is the proviso to Section 186 of the Act, which allows the parish court judge to "set aside any such judgment so given in the absence of the defendant and the execution thereon, and may grant a new trial of the cause, upon such terms as to costs or otherwise as he may think fit on sufficient cause shown to him for that purpose".

APPLICATION

FORNEWTRIAL

Order 28, Rule 1 of the Parish Court Rules sets out the procedure to be followed in an application for a new trial or to set aside a judgment.

The rules require the defendant, seven days before the application is heard, to file with the clerk and serve on the plaintiff, notice of his intention to set aside the judgment and also to set out the grounds of such an application.

It is important to note that the rules provide that such application does not operate as stay unless the judge specifically makes an order staying the proceedings. It is also worthy of note that if the notice is not given as provided above, no application to set aside shall be made unless with the leave of the court.

On top of what the Parish Court Act and the rules provide, case law has outlined additional requirements for the application to be made promptly, reasons must be given for any delay in making the application and there must be merit in the application, which is usually outlined in the affidavit in support of the application.

PROCEDURE KEY

So while the application to set aside a judgment made in default of appearance is allowed in law, the procedure must be followed and great care should be observed in drafting the application and making the presentation in court.

These applications are regularly made in the many parish courts in Jamaica, but mostly by attorneys-at-law.

Defendants who have difficulties in drafting and presenting the application to the parish judge should seek help from the clerk of court or just ask an attorney-at-law who has his practice in the parish, as there is no legal aid for civil matters.

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