Application to set aside a default judgment in the UK law, explained by Hesham Elrafei

 

Application to set aside a default judgment in the UK law, explained by Hesham Elrafei

In UK law, "setting aside default judgment" refers to the process by which a party seeks to have a default judgment overturned or set aside. A default judgment typically occurs when one party fails to respond to a claim, leading the court to automatically rule in favor of the other party who made the claim. Setting aside a default judgment effectively nullifies it, allowing the case to proceed as if the default judgment had never been made.

Who Can Make the Application?

Generally, the party against whom the default judgment has been made can apply to set it aside. This is usually the defendant in the case. The application must be made promptly after the default judgment is entered.

Test Applied by the Court

The court usually considers several factors when deciding whether to set aside a default judgment, as outlined in Civil Procedure Rule 13.3. According to this rule, the court may set aside or vary a default judgment if:

1. The applicant (usually the defendant) has a "real prospect of successfully defending the claim," or
2. There is some other good reason why the judgment should be set aside or varied, or why the defendant should be allowed to defend the claim.

Courts generally also consider whether the application to set aside the judgment has been made promptly.

Procedure

The procedure typically involves submitting an application notice and supporting evidence to the court. The applicant usually needs to provide a draft of the order they are seeking and may also need to provide evidence explaining:

• Why they failed to respond initially, leading to the default judgment, and
• Why they have a real prospect of successfully defending the claim, or some other good reason for setting aside the judgment.

The other party (usually the claimant) has the opportunity to respond, and the court may hold a hearing to determine the matter. If successful, the default judgment is set aside, and the case proceeds as if it had never occurred.

Decision

The decision to set aside a default judgment is at the court's discretion. If the judgment is set aside, the case usually returns to the stage before the default judgment, allowing the defendant to file their defense and proceed.