CIVIL LITIGATION
Chapter 10.5 – Particular types of application
Applications to set aside a default judgment (Part 13)
Mandatory grounds
Rule 13.2 - court obliged to set aside a default judgment that was wrongly entered
before the defendant’s deadline for filing an acknowledgement of service or a defence
expired.
Court also obliged to set aside a default judgment entered after the claim was paid in
full.
Discretionary grounds
Rule 13.3(1) gives court power to set aside or vary a default judgment where:
(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.
Court will take account of promptness of defendant’s application as soon as he becomes
aware of the default judgment - overriding objective ensures that cases are dealt with
expeditiously and fairly - r 13.3(2) explicit requirement for the court to have regard to
whether the application was made promptly.
The application to the court must be on notice and must be supported by evidence.
Defendant should show a defence with real prospect of success to persuade the court to
exercise its discretion.
If default judgment set aside, defendant pay within 14 days.
Orders the court may make
The court may set aside the (1) default judgment, (2) refuse the application or (3) make
a conditional order.
Judgment is set aside - court gives directions for the future management of the case.
Conditional order - defendant pays into court the amount of the claim or such
amount as he can reasonably afford.
Costs
If application granted on a mandatory ground - claimant at fault for entering judgment
when he should not have done so, and claimant ordered to pay the defendant’s costs.
If discretionary ground of a good reason for the default then - neither side is at fault -
costs usually in the case.
If discretionary ground of a defence with a real prospect of success at trial, the
defendant is at fault in failing to deal with the proceedings and normally has to pay the
claimant’s costs.
If conditional order made due to a very late application then the defendant is normally
penalised by being ordered to pay the claimant’s costs.
Chapter 10.5 – Particular types of application
Applications to set aside a default judgment (Part 13)
Mandatory grounds
Rule 13.2 - court obliged to set aside a default judgment that was wrongly entered
before the defendant’s deadline for filing an acknowledgement of service or a defence
expired.
Court also obliged to set aside a default judgment entered after the claim was paid in
full.
Discretionary grounds
Rule 13.3(1) gives court power to set aside or vary a default judgment where:
(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.
Court will take account of promptness of defendant’s application as soon as he becomes
aware of the default judgment - overriding objective ensures that cases are dealt with
expeditiously and fairly - r 13.3(2) explicit requirement for the court to have regard to
whether the application was made promptly.
The application to the court must be on notice and must be supported by evidence.
Defendant should show a defence with real prospect of success to persuade the court to
exercise its discretion.
If default judgment set aside, defendant pay within 14 days.
Orders the court may make
The court may set aside the (1) default judgment, (2) refuse the application or (3) make
a conditional order.
Judgment is set aside - court gives directions for the future management of the case.
Conditional order - defendant pays into court the amount of the claim or such
amount as he can reasonably afford.
Costs
If application granted on a mandatory ground - claimant at fault for entering judgment
when he should not have done so, and claimant ordered to pay the defendant’s costs.
If discretionary ground of a good reason for the default then - neither side is at fault -
costs usually in the case.
If discretionary ground of a defence with a real prospect of success at trial, the
defendant is at fault in failing to deal with the proceedings and normally has to pay the
claimant’s costs.
If conditional order made due to a very late application then the defendant is normally
penalised by being ordered to pay the claimant’s costs.
