Setting aside a default judgment

A default judgment is a judgment entered against a defendant who has failed to respond to a claim within the required time. In most cases, this means the defendant did not file an acknowledgment of service or a defence within the time limits set out in the Civil Procedure Rules (CPR).

How default judgment arises:

When a claimant issues a claim, the defendant is served with the claim form and particulars of claim. The defendant then usually has 14 days from service to file an acknowledgment of service, and 14 days from service of the particulars of claim to file a defence (or 28 days if an acknowledgment of service is filed). If the defendant does nothing within those time limits, the claimant can apply for default judgment under CPR Part 12. In many cases involving a specified sum of money, the claimant can obtain default judgment simply by filing a request, without a hearing.

The effect is that the defendant is treated as having lost the case, and judgment is entered against them. This can include an order to pay damages, sometimes assessed by the court at a later hearing if the amount was not specified in the claim.

Setting aside a default judgment:

The rules on setting aside are found in CPR Part 13.

There are two routes.

1. Mandatory set aside under CPR 13.2. The court must set aside the default judgment if it was entered wrongly. This applies where, for example, the claim had already been paid in full, the defendant had already filed an acknowledgment of service or defence within time, or the time for responding had not yet expired when judgment was entered. In these situations the defendant has an automatic right to have the judgment set aside.

2. Discretionary set aside under CPR 13.3. Where the judgment was properly entered, the court has a discretion to set it aside. The court will consider whether the defendant has a real prospect of successfully defending the claim, or whether there is some other good reason why the judgment should be set aside or the defendant should be allowed to defend. The court must also have regard to whether the application was made promptly.

In practice, when considering a discretionary application the court looks at several factors. These include the strength of the proposed defence (the defendant usually needs to produce a draft defence or witness statement setting out the defence they would run), the reason for the failure to respond in time, how quickly the defendant applied to set aside after becoming aware of the judgment, and any prejudice to the claimant.

How to apply:

You make an application using form N244, supported by a witness statement or statement of truth. The application should explain clearly why you did not respond to the claim in time, set out the defence you propose to run, and exhibit any documents that support your position. You should also show that you acted promptly once you became aware of the default judgment.

There is a court fee for issuing the application, which at the time of writing is currently in the region of £275 for most general applications, but you should check the current fee schedule as fees do change.

When you file the application, you must serve it on the claimant, giving them proper notice of the hearing.

Practical considerations:

The single most important thing in a discretionary application is demonstrating a real prospect of successfully defending the claim. If your proposed defence is weak or vague, the court is unlikely to exercise its discretion in your favour, even if your reasons for delay are sympathetic. You should invest time in preparing a clear, detailed, and credible account of why you have a defence to the claim.

Speed also matters. The longer you wait after learning about the judgment, the harder it becomes to persuade the court. If you have just discovered a default judgment against you, act immediately.

If the judgment was entered in the County Court and you are concerned about enforcement action, such as a bailiff visit or an attachment of earnings order, you can ask the court to stay enforcement pending your application to set aside. This is not automatic and is at the court's discretion, but it is worth requesting.

One further point to be aware of: a default judgment will often be registered on your credit file if it involves a money claim, and even after a successful set aside the process of getting that record corrected can take some time. It is worth checking your credit file and following up separately with the relevant credit reference agencies once any set aside has been ordered.

If you let me know more about your specific situation, I can give you more tailored guidance on your prospects and the best way to frame your application.