Rescission of Judgments in the High Court
What is a judgment?
If you don’t defend a summons issued against you for payment of money or a claim for damages, etc, the person suing you (the plaintiff) will ask the court to grant a judgment against you (known as default judgment), which will remain valid for 30 years and which will have an affect your credit worthiness. This brief article focuses on rescission of judgments in the High Court and not the Magistrates’ Court which will be dealt with in a different article.
In the High Court
There are three ways in which a judgment can be rescinded in the High Court:-
- In terms of Rule 31 (2) (b); or
- In terms of Rule 42; or
- In terms of the common law.
Consent by the judgment creditor to the rescission is not enough, and you will have to satisfy the court that at the time that the judgment was taken against you, you had a valid defence and did not sit back and do nothing when the creditor sued you.
To rescind a judgment in the High Court, you need to show that you were not in “willful default” and “good cause” existed (that you had a good defence) at the time the Plaintiff sued you.
Before a person can be said to be in willful default, he must have known that an action was being brought against him, but deliberately refrained from entering an Appearance to Defend, although he was free to do so, because he really could not care less about the consequences of not dealing with the matter.
Accordingly, if the summons did not come to your attention and the first you learnt about the Judgment was when the Sheriff arrived at your house to make an attachment, you could not be said to have been in willful default. At present, the rules of our Courts do not require personal service, so that a summons is deemed to have been served, even if it is served on someone else on your behalf or is merely affixed to the front gate of your house. In these circumstances, it is possible and often likely that the summons will not be brought to your attention.
Another example would be where you dealt with the summons timeously by handing it to your attorney, but he inadvertently and not negligently misplaced the file in his office and it was through no fault of your own that Judgment was entered against you.
Good cause (bona fide defence)
Once you have satisfied the Court that you were not in willful default in allowing the Judgment to be entered against you, you must demonstrate that a substantial defence exists. It would be sufficient to show that you have a prima facie defence that is likely to succeed at trial.
Rule 42 of the High Court Rules, sets out the grounds for the variation and rescission of an order. Good cause exists where:
- an order or judgment was wrongly sought or granted in the absence of any affected party;
- there is an ambiguity, a patent error or omission to the extent of such ambiguity;
- an order or judgment was granted as a result of a mistake common to the parties.
If the judgment creditor does consent to the rescission, the court will take the following into account:
- reasonableness in the behaviour of the applicant (the person bringing the application);
- that the application is made in good faith; and that
- the applicant has a bona fide substantial legal defence (based on the merits of the case).
At the end of the day, whether or not a court will set a judgment aside is solely within the discretion of the judge that hears the application.