The law on setting aside default judgments can be found in Part 13 of the Civil Procedure Rules (CPR).
Definition of Default Judgment
Once a claim has been issued the defendant has 14 days in which to respond. If within that time they file an acknowledgement of service they are entitled to a further 14 days to return their defence. The law states that, if the defendant does not file an acknowledgment of service or defence, the claimant is entitled to ask the court for a default judgment. A default judgment is, therefore, a judgment entered without a trial after the defendant’s failure to defend the claim.
Irregular Default Judgments
The law distinguishes between two types of default judgments: “regular” and “irregular” judgments. A default judgment will be irregular if it has been entered when:
The defendant has filed an acknowledgement of service or a defence;
The time for filing the acknowledgement or defence has not yet expired;
The defendant has made an application to strike out the claim or for summary judgment;
The defendant paid off the whole claim, including any costs and interest, before judgment was entered;
The defendant has filed an admission to the debt and asked for time to pay.
A default judgment entered in any of these circumstances is not valid in law and the court must set it aside.
Regular Default Judgments
If the defendant fails to respond to a claim, which has been issued and served in accordance with the law, the claimant is entitled to apply for a default judgment. A default judgment entered in these circumstances is said to be “regular”.
The Law on Applying to Set Aside a Regular Default Judgment
If a defendant wants to set aside a default judgment he will have to make an application to the court. If the claim was not issued in the defendant’s local court the case will be transferred to that court and a hearing of the application will be listed.
To have a default judgment set aside the defendant will have to satisfy the following legal test found in Part 13 of the CPR:
He has a defence with a real prospect of success; or,
The judgment should be set aside for some other good reason; and,
The application to set aside the judgment was made promptly.
In deciding whether or not the defendant has acted promptly in making their application the relevant date is usually the date on which the defendant found out about the judgment. Judges have differing views on what constitutes a prompt application. Some say that anything over four weeks shows that the defendant has failed to act promptly – others will entertain applications made many months later.
The Merits of the Defence
The defendant will also have to convince the judge that he has a defence that has a real prospect of succeeding. It is not enough for the defendant to show merely that he has a defence that would be arguable in law. The defendant should support their application with evidence.
Setting Aside Default Judgments on Terms
In some circumstances the judge may agree to set the judgment aside provided that certain conditions are met. For example, a judge could order the defendant to pay the amount claimed into court. This might be done in the case of a defendant who is pursuing a tenuous defence simply because he cannot afford to pay the debt.
The Defendant Says That He Never Received the Claim Form
The law on service of court documents states that:
if the court sends the defendant a claim form at his usual or last known address; and,
it is subsequently returned to the court as un-delivered;
the claim form has still been validly served and the claimant is entitled to a regular default judgment.
Therefore, even if the defendant can persuade the judge that he never received the claim form, the judgment was still regular as a matter of law. However, it may provide an explanation for the defendant’s failure to respond to the claim.
The Judge’s Discretion
The law on default judgments provides judges with a wide discretion to set judgment aside. Justice demands that a judgment which has been entered with no, or little, regard to the merits of the claim should be set aside if the defendant has a good defence and made his application promptly. However, there is no point setting aside a default judgment if the defendant has no chance of defending the claim. It would be a waste of time and money because, ultimately, the claimant would simply obtain another judgment. The courts should be slow to deprive the claimant of a valid judgment obtained in accordance with the law.
Question, I won a small claims suit for my merchandise locked inside a condemned building. for over a year. It was to be returned to me like 6 months ago. Plaintiff defaulted. I know I can file for contempt. but at this point I have moved on and now in a different line of work. Is it possible to ask the judge to order a payment for the merchandise and leave the owner with it all for what ever he wants?
Keep it! - 13-Mar-19 @ 7:36 PM
A claim was issued against me on the 17th April. I filed an AoS on the 29th April online, which MCOL lists as received by the court on the 30th April (making my response date the 20th May) and I posted my defence by 1st class post on the 14th May. I've returned from a camping trip to find a judgement against me in default which states I have not responded to the claim. MCOL is not listing that the court has received my defence.
Should I apply to have the judgement set aside? And if I do, will I receive the fee back if the judge rules in my favour? Money is extremely tight. We're on a Debt Management Plan working hard to pay back all our creditors. This sets us back massively.
Any advice you can give is much appreciated.
pippan - 1-Jun-18 @ 6:25 PM
A warrant for a £460 debt owed to me, was issued by the courts 20 days ago. I've heard nothing since, how long should I need to wait to get a response from the bailiffs / court?
Jimboy - 19-Mar-18 @ 9:41 PM
Hi i obtained a judgement via mcol then bailiffs .. and the defendant paided in full backin dec... and now ihe is going for set aside? And today i had a missedcall of him obviouslyto gloat as it was court date. What happens if he gets set aside regardsto the payment as i cant find anything. Except i have to start again. But he paid so i have no need to . Can you help?
Dig - 20-Feb-18 @ 2:43 PM
We bought a catering trailer from a Company which has now dissolved, it was unfit for purpose when delivered but the delivery company refusd to take it back.An engineers report has condemed the trailer and it is untowable.The Company has never responded to any requests of exchange/money back and other than an initial repsonse of they are looking in to it, has never made contact again.Everything about the Company has disappeared.We started a small claims process after banging our heads against a brick wall with everyone Citizens Advice etc etc, who just didn't seem to want to help.We claimed against the Company and 'The Person' as we were unsure of what to do as the Company had disappeared. You get so far along in the process and then information doesn't seem to make sense.I have called court helplines, emailed them and they just direct me to the help booklet and don't want to help.We did everything online via MCOL - we 'Requested Judgement' and got a 'Notice of Judgement Entered' form it has been 5 weeks - how do we know when to go to the next step???
The next step seems to be Request of a Warrant - do we not get a hearing so we can put our case to a Judge???We have spent money (on the advice of CAB) getting Engineers Reports etc but for what reason if no-one sees them??
I am at my wits end with it all as this was inheritance money I used and I am stuck with something that I can't earn money from and £5k out of pocket.
Do I Request a Warrant against the Company that has disappeared or against 'The Person' - both have the same address by the way. There is no help anywhere or from anyone we speak to.Do hope you can advise - many thanks
loobelou - 22-Sep-17 @ 1:39 PM
YOUR FIRST BULLET POINT IN YOUR DEFINITION OF AN IRREGULAR DEFAULT JUDGEMENT IS MISLEADING
"The defendant has filed an acknowledgement of service or a defence;
The time for filing the acknowledgement or defence has not yet expired;"
It reads that a Default Judgement cannot be issued if EITHER the acknowledgement of Service OR a defence has been received. This is not true.You can apply after the time deadline for a response has expired for EITHER of these two if the item hasn't been received by the court. So the AOS may have been received but no defence was received by the deadline for that...
(1) The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.
(2) Judgment in default of defence may be obtained only –
(a) where an acknowledgement of service has been filed but a defence has not been filed;
Kate - 20-Sep-17 @ 11:00 PM
I've been ripped off by a cowboy builder, took him to court as he hadn't finished the job and had damaged some of my property.Had really hard evidence from quantity surveyor, building regs and photographic evidence.Judge went entirely with the builder, ignored all my evidence and wouldn't really let me get a word in edgeways.What does anyone's think has gone on?Too scared to appeal - never thought I lose the case so who knows what might happen next.I now paid in excess of £4,000 over the top of the initial invoice which was excessive anyway.I'm stunned.
Spikey - 8-Jun-17 @ 1:32 PM
While out of the country for several years a false claim was lodged against me, it turned out to be a mistaken identity, someone else with a similar name.
I didn't receive the CCJ until months later (mail forward). I contacted the claimant who acknowledged that he had made a mistake and wrote to the courts withdrawing his claim against me.
However, that was in 2013 and there is still a CCJ registered against me - I need to have this removed as I will be returning to the UK and need to remortgage.
What can I do to clear my records?
Jezz - 22-Apr-17 @ 7:12 PM
I am battling a Parking eye"parking notice" which contravenesthe BPA regulations.
I completed an on line AOS 18th January 2017 to be then issued with a "default" judgement against me. I had no idea the claim had been listed. The CCBC in Northampton say they acknowledged my AOS but not my request to defend the claim.
My option now is to pay the "notice" or set aside. The costs are similar. If I apply to set aside would I be able to have cost reimbursed?
Angelbee - 8-Mar-17 @ 4:30 PM
Paid a bailiff £300 then had the judgement set aside,can I get the money back?x
Max - 24-Feb-17 @ 2:15 AM
I applied for a CCJ against a garage that destroyed the engine of my car. I paid for an engineers report into the damage and took photographs whilst the car was still in the possession of the garage. The garage owner denies all responsibility and has no Independent report, but still filed a defence.
His defence was thrown out by default, and I obtained judgement. However, I gave the garage a chance to negotiate a settlement, and I allowed them to look at my Independent report (The report is damming). Now the garage has asked for judgement to be set aside!
Can the garage in question change its defence or do they have to use the original defence that was kicked out?
The garage owner has had dealings with Trading Standards previously that landed him in court and found guilty.
chris - 11-Feb-17 @ 7:55 AM
I take issue with your statement "The defendant has filed an acknowledgement of service or a defence;"
part 12.3.2(a) clearly states a default judgement may be obtained when an aos has been submitted but no defence has been.
Clearly this is important without it all I need to do is submit the aos and that would block the claimant getting a default judgement without ever having to submit a defence.
mercyblue - 13-Jul-16 @ 5:01 AM
the defendent wants a default judgement set aside and I want a result as I cannot afford a solicitor and the defendant can and has one and is using a lot of false claims in her draft defence what can I do as the court is to decide a hearing date I cannot afford to attend the hearing will or can the court help me to defend myself the defendent tried to settle out of court an offer I declined now saying it was a goodwill gesture
mike - 1-Apr-16 @ 11:16 PM
Can you please tell me if a defendant successfully gets a CCJ set aside, does the claimant get their court fees refunded? Or is it free to start the case all over again from the start? Or does the original claimant lose their fees and have to pay again? Many thanks
mrshiggens - 24-Nov-15 @ 5:58 PM
We went to court last week 11/11/15 about money a property letting firm said we owed judge sided with the rental firm but since that we have found out the estimates used which the judge used were not the real estimates another firm did work but used there higher estimates is there anything I can do to get back to small claims court and put this evidence forward
Pete - 19-Nov-15 @ 2:49 PM
P77 - Your Question:
I issued a claim against a Ltd company for £2,500. I had no response after 14 days, so requested a judgement by default. This was granted and the judgement issued to the company. I have now checked back on my MCOL account to request the judgement is enforced (I suspected bailiffs would have been needed ot get them to pay), but have seen thatthe defendant has put a bar in place. There is now no other option on the MCOL accoutn homepage for me to take any further action, e.g. request hearing, request judgement is enforced, other than to archive the claim or to set it aside.What is 'bar', and what are my options re next steps. I am prepared to fight this, but don't at this stage even see how I go about that.Thanks
You should be able to find the answer to your question via the guidance notes here. I hope this helps.
AboutSmallClaims - 17-Nov-15 @ 2:50 PM
I issued a claim against a Ltd company for £2,500.I had no response after 14 days, so requested a judgement by default.This was granted and the judgement issued to the company.I have now checked back on my MCOL account to request the judgement is enforced (I suspected bailiffs would have been needed ot get them to pay), but have seen thatthe defendant has put a bar in place.There is now no other option on the MCOL accoutn homepage for me to take any further action, e.g. request hearing, request judgement is enforced, other than to archive the claim or to set it aside.
What is'bar', and what are my options re next steps.I am prepared to fight this, but don't at this stage even see how I go about that.
P77 - 17-Nov-15 @ 12:17 PM
The UK legal system = COLLUSION. you cant win against big companies as they're in bed with the judges. A claimant can pay to issue a warrant but the defendant can have the case set aside after that warrant so the claimant loses money for the claim fee and warrant fee when the big business undoubtedly wins case. Corruption and tricks to extract more money from the British public.
Tom - 24-Feb-15 @ 8:34 AM
@Blossom - it is not up to your son to pay for their legal advice.
Will - 17-Feb-15 @ 2:49 PM
My son recently issued a County Court Claim of £700 against a Limited Company. The company have put in a defence and have also put that they have put a Bar in place.My son has withdrawn the claim.Will my son have to payany money to the Limited Company for any Legal Advice they have been given?
Blossom - 15-Feb-15 @ 7:50 PM
I would like some advice please regarding a Small Claims Court decision that was set aside. The case concerned service charge arrears and was brought by the Manager of a development of leasehold flats (the Claimant). The defendant (a leaseholder at the development) failed to attend the hearing which was heard in their absence. The defendant was ordered to pay £500 legal fees to the claimant, which they did. The defendant then successfully applied to have the decision set aside and took out a claim against the claimant (the Manager)via the Leasehold Valuation Tribunal.The tribunal found for the leaseholder and determined that the leaseholder was not liable for any of the Manager's costs. Should the original Court Order for £500.00 be reimbursed to the leaseholder as i) the court decision had been set aside and ii) the LVT found for the leaseholder suggesting the case should not have been brought.
susanebarnes - 2-Dec-14 @ 2:26 PM
Some one has taken judgement against me at my last business address, who Zi allowed to stay with me for a month on a temporary basis while she looked for more permanent accommodation, she refused to move out and pretended that he was a ast assured short hold tenant and sued me for damages, can I put a counterclaim at this point as I never received the application and the defence and counterclaim form.
Biba - 24-Jun-13 @ 12:37 PM
i have raised a ccj against someone which he didnt respond to so it became a default judgement.it has been 6 and half years, the bailiffs have been round he went through a iva which he defaulted on, he went out of the country and is back.i have found out recently that i could add his wife to the ccj but the judge advised i would have to set him aside add her then add him back on ..is this correct or do you suggest another way
ayesha - 12-Sep-12 @ 3:23 PM
I have made a claim against a no payer or work i have carried out on his property, the defendant is asking the court to set aside the judgment as he was out of the country on business, I have received a new court date for the 3/8/12 at 2.30, now the defendant is asking me to agree to set aside the judgment as he is out the country again and will not be able to attend, my question is can he ask to postpone again or will the courts take a dim view of this as I have already been awarded the judgment.
marko - 21-Jul-12 @ 3:07 PM
I have issuesd a warrant of execution against a sofa company and they have totally ignored all court correspondance...balliffs have gone in and where shown Insolvency act (section252) - what do I do now ??
Please help as this has been going on for over a year !
Ade - 7-Mar-12 @ 1:38 PM
Extremely useful as I am proceeding with a small claim.