Default of Appearance in UK Law

Usually, once court proceedings have begun, a defendant will have to decide whether to ignore the proceedings or defend them or challenge the jurisdiction of the court. If, however, he decides to ignore the proceedings he will not lodge any formal document with the court; in that sense he will not have "appeared" but, if he has been served with the proceedings, he will be at risk of having an enforceable judgment being entered against him.

Once proceedings come before a court for a hearing a defendant will again have to choose whether to be present in court or not. If he does choose to be present he will, on any view, have "appeared"; if he chooses not to be present he will not, in one sense, have "appeared".

Mr Tavoulareas did not "appear" in either of the meanings of the word; he neither lodged any formal document with the court in Greece nor was he present when the proceedings came to trial. On any view, therefore, the judgment against him was given in default of appearance. In the Hendrickman case it was said that "appearance" should be given an autonomous meaning rather than the meaning given by any individual legal system.

One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.

The contention no doubt contains this element of truth, that from the nature of the case, no Judge could in exercising the discretion conferred on him by the rule, fail to consider both ( a) whether any useful purpose could be served by setting aside the judgment, and obviously no useful purpose would be served if there were no possible defence to the action; and ( b) how it came about that the applicant found himself bound by a judgment regularly obtained, to which he could have set up some serious defence.

The main question is whether the judgment is one to which, according to the current of English decisions, foreign courts of justice may be expected to give effect. The expectation is not one of fact depending on the probable conduct of the courts of this or that country, but is one of law, based upon the consideration for the judicial proceedings of other countries, which legal administration, wherever situated, ought to adopt and observe in the interest of justice generally.

On the other hand, if a man is entitled to one of two inconsistent rights it is fitting that when with full knowledge he has done an unequivocal act showing that he has chosen the one, he cannot afterwards pursue the other, which after the first choice is by reason of the inconsistency no longer his to choose.