Setting Aside Default Judgement

If a claimant in your case has recently obtained Default Judgement against, this blog is for you!

At Crate Jacobs we regularly help our clients secure Default Judgement, and help our clients get Default Judgement set aside wherever possible.

What is Default Judgement?

A Default Judgment is a judgment entered by the court without a trial. This is typically because the defendant has failed to file an acknowledgment of service or a defence within the time limits prescribed by the Civil Procedure Rules (“CPR”).

This type of judgment is a very useful tool in litigation. This is because it allows the claimant to obtain a decision in their favour without the need to proceed to a costly trial.Part 12 of the Civil Procedure Rules outlines Default Judgment and the circumstances under which a party can obtain judgment against another, without protracted litigation or court hearings.If one party enters Default Judgment, the other party can make an application to the court to have the same varied or set aside.

What reasons are typically accepted by the Court?

 CPR 13.3(1) outlines that the party subject to the Default Judgment can make an application to the court on the grounds that (i) the defendant has a real prospect of successfully defending the claim or (ii) it appears to the court there is some other good reason why:

1. the Default Judgement should be set aside or varied; or
2. the defendant should be allowed to defend the claim.

It is common practice for the following to be considered ‘some other good reason’:

• the defendant claims they never received the claim form;
• the Default Judgment was entered incorrectly;
• There is a realistic and strong defence to be heard; and/or
• Medical reasons apply.

In addition, CPR 13.3(2) confirms that the court must have regard to whether the person seeking to set aside or vary a Default Judgment entered under Part 12 made their application “promptly”. Lots of case law over the years has tried to clarify what “promptly” means.

How is ‘promptly’ defined?

Ultimately the sooner a defendant acts to set aside the judgement the better. Time is very much of the essence.

We have listed below some cases where the courts have considered this point:

• In Regency Rolls Ltd. v Murat Carnall [2000] EWCA (Civ) 379, the application to set aside was dismissed as 30 days was considered too long to be classed as acting ‘promptly’

 

• Whilst in Barons Bridging Finance Plc v Nnadiekwe [2012] EWHC 2817 (Comm), the application was permitted because there was evidence of conflict between the parties and the defendant was a victim of fraud.

 

• Avanesov v Shymkentpivo [2015] EWHC 394 (Comm) required applications to be made ‘as soon as could reasonably expected’ with 8 months deemed too lengthy in this case.

 

• However, Points of View v Erre DB Group SA [2021] 2 WLUK70 decided 26 days was too long to set aside, even though the claimant had a real prospect of success.

Overall, the emphasis is for the party subject to Default Judgment to act as quickly as possible to vary or set aside, ideally within a few days of receiving the Default Judgment.

How can we help?

We can assist Claimants and Defendants with applications regarding setting aside or varying Default Judgment.

Given that time is of the essence, we strongly advise that you seek independent legal advice at the earliest possible date to ensure we (and you) can act fast. If you have a matter you would like to discuss with us regarding the above, please feel free to contact us on 01737 339 618 or email us at info@cratejacobs.com and one of our team will happily assist you.

At Crate Jacobs we pride ourselves on getting to know our clients and their long-term commercial objectives so we can provide tailored, pragmatic and cost-effective legal advice.

Amy Jacobs

Partner – Crate Jacobs