Setting Aside a Default Judgment – 10 Things to Focus

What is Setting Aside a Default Judgment?

The process of setting aside a default judgment is a court decision, which was made without the merits of the claim being heard and without a valid response from the Defendant, is referred to as setting aside a default judgment. Applications to set aside default judgments are dealt with in Part 13 of the Civil Procedure Rules (CPR). Part 13 provides for mandatory grounds and discretionary grounds to a Court to set aside a default judgment”.

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What is Included?

  1. What is Setting Aside a Default Judgment?
  2. Mandatory Grounds for Setting Aside a Default Judgment
  3. Discretionary Grounds for Setting Aside a Default Judgment
  4. Time for issue the application
  5. Evidence of the application
  6. The outcome of the Application to Setting Aside a Default Judgment
  7. How to Apply to setting aside a default judgment
  8. Form for setting aside a default judgment
  9. Witness Statement
  10. Defence Statement and counterclaim
  11. Court Fee

Mandatory Grounds for Setting Aside a Default Judgment

In Civil Litigation under mandatory grounds, the court is obliged to set aside a default judgement which was entered wrongly but before

(1) The Defendant’s deadline for filing an acknowledgement of service or a defence (whichever is applicable) expired.

(2) A Default judgment entered after the claim was paid in full.

Discretionary Grounds for Setting Aside a Default Judgment

Under discretionary grounds, it is at the discretion of the court to either set aside a default judgment or vary it. The grounds to set aside are following

 (a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why—

     (i) the judgment should be set aside or varied; or

     (ii) the defendant should be allowed to defend the claim.

Time

The time is of the essence. The court will take account of the speed or swiftness of the defendant’s application to set aside, and it is therefore important that the Defendant should issue the application as soon as he becomes aware of the default judgment and does not waste any time.

It is important to note that it is not a condition that must be satisfied before the court can grant relief. However, time will always be a factor of considerable significance, and if there has been a marked failure to make the application promptly, the court may well be justified in refusing relief, notwithstanding the possibility that the defendant might succeed at trial.

Evidence

The application to the court must be on notice and must be supported by evidence. Lack of evidence may prove fatal and the application is likely to be refused.

Setting aside a default judgment
Setting Aside a Default Judgment

The outcome of the Application to Setting Aside a Default Judgment

 The court has to power to either set aside the default judgment, refuse the application or make a conditional order. Where the judgment is set aside, the court usually gives directions for the future management of the case. In respect of a conditional order, the normal condition is that the defendant pays into court the amount of the claim or such amount as he can reasonably afford (within a set time, otherwise the default judgment stands).  It is important to note the condition stated above is imposed in situations where application to set aside was made very late.

How to Apply to setting aside a default judgment

A Defendant as soon as he became aware of the default judgment for any goods and services, must apply to set aside the default judgement. The time is of the essence. Although time is not the decisive factor it is an important factor when it comes to the setting aside decision. The Defendant must use the following form

Form

Forms N244, Application Notice must be used to set aside a default judgment.

Witness Statement

The Application Notice must include a witness statement.

Defence Statement and counterclaim

Ideally, the Application Notice should also contain a defence statement in response to the particulars of the claim. The defence statement should be more than a mere admission or denial of the allegation in order to demonstrate to the court that there is a real prospect of a successful defence. The defendant, where appropriate, is allowed to file a counterclaim.

Court Fee

Court Fee is set at £255 as of the writing of this blog.

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