Applying to Set Aside a Judgment Made at a Hearing

Setting Aside Judgment After a Small Claims Hearing

The rules governing small claims hearings specifically allow a party to apply to set aside a judgment made at a hearing. Part 27 of the Civil Procedure Rules (CPR) states that a party to a small claims case can apply to set aside a judgment made at a hearing if:

• He was not present at the hearing;
• He was not represented at the hearing; and,
• He had not previously written to the court asking them to decide the claim in his absence.

If a party wishes to make an application under this rule he must do so within 14 days of the judgment being served on him.

A party cannot apply to have judgment set aside under this rule if all parties had agreed that the court could decide the claim without a hearing.

The Legal Test

If a party makes an application to set aside a judgment made at a hearing they did not attend, the court will only set judgment aside if the party can satisfy the following legal test:

• He had a good reason for failing to attend or be represented at the hearing, or for his failure to make a written request that the claim be decided in his absence; and,
• He has a reasonable prospect of succeeding at a re-hearing.

To succeed the applicant must satisfy both parts of the test. The judge may want to see evidence to support the party’s explanation for his failure to attend. For example, if the party says that he could not attend because he was ill the judge may want to see a note from his doctor.

It is not enough for the party to simply show that he had a good reason for his failure to attend the hearing. There would be little point in setting aside a judgment which would inevitably be re-entered at a re-hearing of the claim due to the weakness of the party’s case. Therefore the party will have to prove, not just that he has a case which is plausible in law, but one which has a reasonable chance of winning.

The Result of a Successful Application to Set Aside a Small Claims Judgment

If judgment is set aside the court will set a new hearing date for the claim. The CPR permits the same judge who has just heard the application to set aside judgment to proceed immediately to re-hear the small claims case.

Appealing a Small Claims Judgment

If a party objects to a judgment made at a hearing which they attended they will almost certainly have to appeal the decision. Appeals in the small claims court are now treated, broadly, in the same way as appeals in any other type of claim. If a party wishes to appeal the judge’s decision they will have to ask for permission to appeal. To grant permission the court will have to be satisfied either that:

• The appeal has a real prospect of success; or,
• There is some other good reason why the party should be permitted to appeal.

Permission may be obtained from the judge who made the decision or from the appeal court. If a party asks the judge at the small claims hearing for permission to appeal and he refuses to grant it, the party may still ask the appeal court for permission. If the party did not attend the hearing, they will have to seek the permission of the appeal court in any event.

An appeal must generally be lodged within 14 days of the judgment being made. A reduced fee and simplified appeal form applies to appeals against small claims judgments.

The Legal Test for Appeals

The appeal court will only allow an appeal if it is satisfied that:

• The decision of the judge who heard the small claims trial was wrong in law; or
• The decision was unfair because of a serious irregularity in the small claims proceedings.

In other words a party will not be successful if they simply do not like the judge’s decision or think that another judge might have decided the case differently.

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