The rights of the defaulting party in legal proceedings

21 / Jun

Default in a judicial proceeding refers to the situation in which the defendant does not attend the judicial proceeding after having been formally notified and summoned by the judge.

The situation of the so-called defaulting party is provided for in the law. Such a fact is not considered as a settlement (voluntary acceptance by the defendant of what is being requested in the opposing party’s claim) nor as an admission of the facts of the claim. Furthermore, the plaintiff still has to prove the facts constituting his claim.

The main consequences of default

  • No further notice takes place to the defaulting defendant, other than the decision terminating the proceedings;
  • The ability to take those actions appropriate to a defence are lost until the defendant appears in court.

And what rights does the defaulting defendant have?

It depends on the type of proceedings. In ordinary proceedings, a defaulting defendant can appear before the preliminary hearing and present evidence to dispute the plaintiff’s facts. So bear in mind that the defaulting defendant can appear at any stage of the proceedings and the law cannot prevent him or her from doing so.

In oral proceedings, if the defaulting defendant appears after the 10-day deadline to respond to the claim, the right to present evidence remains in the hands of the plaintiff, the judge or the co-defendants.

In general, however, if the defendant appears when he is still in a position to offer evidence, he may offer evidence that serves to dismiss the plaintiff’s allegations on the grounds of inaccuracy of the constituent facts, but he may not prove impeditive or extinguishing facts that have not been alleged.

In addition, there are certain remedies available to the defaulting party:

  • The defaulting party can apply for a nullity of the proceedings if he did not appear due to incorrect summons;
  • The defaulting party can also apply to have the final judgment set aside if the failure to appear was involuntary.

In short, procedural default implies the absence of the defendant from certain legal actions or the entire court proceedings, without relieving the plaintiff of his burden of proof, and the defaulting party still has certain rights and remedies at his disposal.

If you have any further questions on the status of default judgment, please do not hesitate to contact Lex Foris International Law.

Rafael Montes Velástegui