In certain cases, when considering a civil proceeding, there is such a thing as trial in absentia or judgement in default. In this article, we will describe the meaning of these concepts, in which case a court decision is made in absentia and whether it is possible to appeal judgement in default?
A judgement in default is a court document drawn up and issued by a court based on the results of trial in absentia. The case is considered in absentia in the following cases:
- a defendant was duly notified on the time and place of a hearing, but did not appear;
- a defendant did not provide the valid reasons for the failure to appear and did not request that the case be considered in his/her absence;
- a plaintiff does not object to the trial in absentia.
If a plaintiff who appeared at a hearing does not agree to trial in absentia in the absence of a defendant, the court postpones the proceedings and sends a defendant a notice with the time and place of a new judicial hearing. In the event if appropriately notified defendant failed to appear for the second time, the court shall execute judgement in default regardless of the opinion of a plaintiff. If a defendant who didn’t appear at a hearing sent a statement on the consideration of the case without his/her participation, the case is subject to consideration in the general manner, and not as trial in absentia.
If a plaintiff changes the subject or basis of a claim or increases the claims, the court is not entitled to consider the case as trial in absentia in the court hearing. Consideration of the case is postponed for delivery of the statement of claim with the changed subject or basis of a claim or increased size of the claims to a defendant. In a new court hearing, the case may be considered as trial in absentia if there are grounds mentioned above.
When considering a trial in absentia, the court examines the evidence presented by the persons participating in the case, takes into account their arguments and makes a decision, which is called judgement in default. A copy of judgement in default shall be sent to a defendant as well as to a plaintiff who was not present at a hearing no later than three working days from the date of its delivery in final form using communication means ensuring the record of its receipt.
If a defendant does not agree with judgement in default, a defendant or his/her representative having authorities has the right to file an application with the court that issued the judgement in default to cancel the decision within five working days from the date of receipt of the copy of the judgement in default. The application should indicate the following:
- name of a court that issued the judgement in default;
- name of a party submitting an application;
- information on circumstances proving the validity of the reasons for a defendant's failure to appear at the hearing, and evidence confirming these circumstances, as well as evidence that may affect the content of the judgement in default;
- request of a party submitting an application;
- list of materials attached to an application.
An application for the cancellation of judgement in default is signed by a party or its authorized representative and submitted to a court with copies of an application and materials attached to it according to the number of persons participating in the case.
An application for the cancellation of judgement in default is considered by a court at a hearing within ten working days from the date of its receipt by a court. Failure of persons participating in the case, who were notified on the time and place of the court hearing, to appear does not preclude the consideration of an application. The court ruling on the cancellation of judgement in default or on the refusal to cancel judgement in default is not subject to review at the request of the prosecutor.
The judgement in default is subject to cancellation if a court establishes a combination of circumstances indicating that a defendant:
- failed to appear at a hearing for good reasons, although he/she was notified on the time and place of a hearing;
- presented evidence that may affect the content of judgement in default.
In case of refusal to fulfill an application, a defendant has the right to appeal the judgement in default on appeal within one month from the day the court renders a decision to refuse to fulfill an application.
See state duty rates in courts.
Last update: 30.09.2021