Chapter 5: Responding to Proceedings

Question 1

There are several possible steps that the defendant might take in response to the claim. The
defendant may (CPR 9.2):

Answer 1

• File or serve an admission (CPR 14)
• File a defence (CPR 15)
• File or serve an admission and file a defence, if it admits only part of the claim
• file an acknowledgment of service (CPR 10). This is the step to be taken if the defendant is
  unable to file a defence within the period initially allowed, or if it wishes to dispute the court’s
  jurisdiction (CPR 10.1).
  This section focuses on a defendant wishing to acknowledge service of proceedings and/or defend
  the proceedings. Admissions are addressed in a later section

Question 2

1.1 Acknowledgment of service
1.1.1 Why acknowledge service?

Answer 2

The defendant will file an acknowledgment of service either:
* if it is unable to file the defence in time and needs longer than 14 days from the deemed date of service of the particulars of claim in which to serve a defence; or
* if it wishes to dispute that the court has jurisdiction to hear the claim.

Question 3

1.1.1 Why acknowledge service?

Answer 3

In practice, it is common for the defendant to acknowledge service as the defence will often
require finalising, with further instructions from the client and possibly some additional
investigation being necessary.
It is still possible to file the defence (once it is ready) earlier than the extended deadline provided
by acknowledging service. Filing the acknowledgment of service first will not therefore cause any
unnecessary delay to the claim.

Question 4

1.1.2 When to acknowledge service

Answer 4

The general rule is that the period for filing an acknowledgment of service is:
* where the defendant is served with a claim form which states that the particulars are to follow,
14 days after service of the particulars of claim; and
* in any other case, 14 days after service of the claim form (CPR 10.3).

Question 5

1.1.2 When to acknowledge service

Answer 5

Acknowledging service is not a compulsory step in a claim and, if appropriate and the defence is
ready, the defendant could choose to defend instead straight away.
Note. In specialist divisions, the procedural rules can be different so it is important to check any
specialist court guides or rules.

Question 6

1.1.3 How to acknowledge service

Answer 6

The form for acknowledging service (Form N9) is sent to the defendant in the response pack.
The acknowledgment of service form is a simple form in which the defendant confirms their name
is correctly stated on the claim form and gives their address for service of documents. The defendant will also indicate, by ticking the appropriate box on the form, whether they intend
to defend all or part of the claim, or whether they intend to contest the jurisdiction of the court to
deal with the matter.

Question 7

1.1.4 Deadlines for defence and acknowledging service

Answer 7

Filing an acknowledgment of service extends the time for filing a defence (CPR 15.4):
* If the defendant does not file an acknowledgment of service, it must file and serve a defence
within 14 days of the deemed date of service of the particulars of claim.
* If the defendant does file an acknowledgment of service indicating an intention to defend the claim, it extends the deadline for serving the defence to 28 days after the deemed date of
service (DDS) of the particulars of claim

Question 8

1.1.5 After acknowledging service

Answer 8

Once the defendant has filed an acknowledgment of service, the court will notify the claimant in
writing that this has been done (CPR 10.4), and the defendant’s solicitors will often notify the
claimant / claimant’s solicitors directly as well. The parties will now be able to calculate and diarise the deadline for the filing and service of the defence:
* Defendants need to ensure that the defence is ready and filed by this date (or take further
action to extend this deadline if it is not).
* Claimants need to be ready to apply for judgment in default if the deadline expires and no
defence is filed and served.

Question 9

1.2 Defence
1.2.1 When to defend

Answer 9

A defendant contesting a claim must file a defence which sets out why the claim is disputed. A
defence must be filed at court and served on all parties (CPR 15.6) within the prescribed time
limits, as set out above (CPR 15.4(1)). In certain circumstances, a longer period for filing a defence might apply (CPR 15.4(2)):
* where the claim form has been served out of the jurisdiction, longer periods apply depending
on which other country is involved (see CPR 6.35/36);
* where a defendant makes an application disputing the court’s jurisdiction, the defendant need
not file a defence before the hearing of that application;

Question 10

1.2.1 When to defend

Answer 10

• where, before the defence is filed, the claimant applies for summary judgment, the defendant need not file a defence before the hearing of that application (CPR 24.4(2)); and
• where the court makes an order for service of a claim form on an agent of a principal who is
  overseas, the court will specify the period (see CPR 6.12).

Question 11

1.2.2 Extending time to serve defence by agreement 1.2.2 Extending time to serve defence by agreement

Answer 11

The defendant and claimant can agree an extension of time for serving the defence of up to 28
days (CPR 15.5), if (for example) the defendant needs more time to prepare the defence. This means that it is possible for the defendant to have up to 56 days from the deemed date of service of the particulars of claim to file the defence without having to apply to the court for permission to extend the time for service. If an extension of time is agreed, the court must be notified in writing (but no application to court
is required).

Question 12

1.2.3 Applications to court for extension of time to serve defence

Answer 12

It is not possible for the parties to agree an extension of more than 28 days. In this situation, the
defendant will need to apply to the court for a longer extension to be granted. Similarly, if a
claimant refuses to agree an extension of up to 28 days in accordance with CPR 15.5, the
defendant will need to apply to the court for an order allowing an extension of time.
The court will ensure that the overriding objective is furthered in deciding whether to grant an
extension of time. The reasons for the extension being needed and the impact of the extra time on
the conduct of the claim will be relevant to the court’s decision.

Question 13

1.3 Response of ‘money paid’

Answer 13

If the defendant is served with a claim for a specified amount of money (eg a debt claim), but has
already paid the claimant before receiving the claim, they will respond to the claim with a defence
which states that the debt has already been paid.

Question 14

The rules provide a simple procedure to deal with the claim in this situation (CPR 15.10):

Answer 14

• When the court receives this type of defence, it sends a notice to the claimant which, in effect,
  asks the claimant whether the defence is correct.
• The claimant must respond within 28 days and the claim is stayed if they do not do so.
• Whatever their response, the claimant must serve a copy of it on the defendant.
• If the claimant does not wish to continue that is the end of the case.
• If the claimant does wish to continue (because they do not agree that the debt has been paid
  or because, for example, they still wish to recover interest and costs) the claim will proceed as
  a defended claim.

Question 15

1.4 Summary

Answer 15

• A defendant who contests a claim must file a defence which sets out why the claim is disputed.
• In the first instance, the defence must be filed within 14 days of the deemed date of service of
  the particulars of claim.
• The defendant should file an acknowledgment of service if they need longer than 14 days to
  prepare their defence or wish to dispute the court’s jurisdiction.

Question 16

1.4 Summary

Answer 16

• The acknowledgement of service must be filed within 14 days of the deemed date of service of
  the claim form, or within 14 days of the deemed date of service of the particulars if the claim
  form indicates that particulars are to follow.
• Filing an acknowledgment of service extends the time for filing the defence to 28 days from the
  deemed date of service of the particulars of claim.
• The claimant and defendant can agree an extension of time for service of the defence between
  them for up to 28 extra days only. On the defendant’s application, the court can grant any
  extension it considers appropriate.

Question 17

2 Admitting the claim

Answer 17

Just as when advising a claimant client who has instructed you on a new claim, if instructed by a
defendant to a claim, you will conduct case analysis based on your client’s instructions and
advise your client on their chances of succeeding in defending the action. If the defendant does not wish to dispute the claim, or has been advised as a matter of law they have no defence to the claim and cannot dispute the claim, they may respond to the particulars
of claim by admitting either the whole or part of the claim. Admissions are dealt with in CPR 14 and PD 14. At the same time as admitting a claim, the
defendant might also ask for time to pay

Question 18

2.1 How and when to admit the claim

Answer 18

The admission form is contained in the response pack sent to the defendant with the particulars of
claim. There are different versions depending upon whether the claim is for a specified amount
(Form N9A), or is a claim for an unspecified amount, non-money or return of goods (Form N9C).
A defendant wishing to admit the whole or part of a claim completes the relevant admission form
and sends this to the court (or to the claimant directly if admitting a specified claim in full) within
14 days of deemed service of the particulars of claim.

Question 19

2.2 Admitting specified claims

Answer 19

If a claim for a specified sum is admitted, the amount of money that needs to be paid is already
known. Interest can also be calculated to the date of payment, the court fees are known and fixed
court costs will apply, so there are no obstacles to a prompt determination of the amount of the
claim. The defendant may admit the whole claim for a specified amount of money (CPR 14.4) or only
part of the claim (CPR 14.5)

Question 20

2.2 Admitting specified claims

Answer 20

The defendant will indicate, on Form N9A, whether the whole, or only part of the claim is admitted. Except where one of the parties is a child or protected party, the claimant will have the right to enter judgment against the defendant for the admitted sum, which will also include interest.

Question 21

2.2.1 Admitting the whole of a specified claim

Answer 21

If the whole of a specified claim is admitted, the exact amount due can be calculated immediately.

Question 22

2.2.2 Admitting part of a specified claim

Answer 22

In this situation, the defendant will state the amount of the claim that is admitted, and the balance will remain in dispute. The defendant will need to file a defence in relation to the unadmitted balance of the claim

Question 23

2.3 Admitting unspecified claims

Answer 23

If a claim for an unspecified sum is admitted, quantum ie the amount of money that needs to be
paid, and the amount of interest, is not yet known. Liability might now be resolved but quantum
needs to be decided before the defendant knows the amount they will pay.

The defendant may admit liability to pay the whole claim for an unspecified amount of money
(CPR 14.6) or may admit liability and offer a sum in satisfaction of the claim (CPR 14.7). The defendant will indicate, on Form N9C, which of these options they are taking and, if offering a sum in satisfaction, will state the sum offered

Question 24

2.3 Admitting unspecified claims

Answer 24

If the whole claim is admitted, following a request being made by the claimant, the court will enter
judgment for an amount to be decided later by the court and costs. Except where one of the
parties is a child or protected party, the claimant will have the right to enter judgment against the
defendant for any amount offered in satisfaction, if accepted by the claimant, or for an amount
to be decided later by the court (and costs).

Question 25

2.3.1 Admitting the whole of an unspecified claim

Answer 25

If the whole of an unspecified claim is admitted, judgment on liability can be given. This disposes
of liability only and there will be a subsequent hearing and judgment determining quantum.

Question 26

2.4 Requesting time to pay

Answer 26

If the admission amounts to a specified amount of money (ie whole/part of a specified claim or an
offer to pay an amount in satisfaction of an unspecified claim), the defendant may make a
request for time to pay (CPR 14.9(1)).

This request is, in effect, a proposal by the defendant to pay by a certain date or by instalments.
Both versions of the admission form (Forms N9A and N9C) make provision for this request to be
made at the same time as the admission and for the defendant to supply personal financial
information (income, outgoings, debts etc). If the defendant is unable to pay immediately, they
can also include the reasons for this.

Question 27

2.4 Requesting time to pay

Answer 27

If the claimant does not accept the defendant’s proposals for payment, the court will determine the rate of payment taking into account the information supplied by the defendant and the objections raised by the claimant (CPR 14.10).

Question 28

2.5 Entering judgment following the claim being admitted

Answer 28

The claimant will be notified of an admission and has the option to enter judgment against the
defendant. A judgment is a ‘final order’ which disposes of the claim. (In unspecified claims quantum will still need to be determined.) Judgment indicates that the claimant is, either completely or to some extent, the successful party. Claimants, therefore, will ordinarily prefer to have a judgment entered.

Question 29

Defendants do not prefer having judgements against them

Answer 29

Defendants usually prefer not to have a judgment against them to avoid the possibility of
enforcement proceedings, and because most judgments for money will be placed on a public,
searchable register (the Register of Judgments, Orders and Fines) for a period of six years, which
can have an impact on an individual’s credit rating.

Question 30

Conclude by way of settlement

Answer 30

Depending on the parties’ views (and bargaining positions), they might decide to conclude an
admitted claim by way of settlement instead of entering judgment, using an order that stops short of a judgment, such as a Tomlin Order, or by the claimant agreeing to withdraw the claim. If a
specified claim has been admitted and paid in full (with interest, court fee and costs) within the 14 day period for responding to the claim, it is unlikely that a judgment will also be entered.

Question 31

2.6 The amount of the judgment
2.6.1 Specified claims

Answer 31

In specified claims, the judgment will comprise:
* the amount of the claim / debt including interest to the date of issue of the claim;
* interest since the date of issue (using the daily rate from the particulars of claim);
* court fees (ie issue fee as shown on the claim form); and
* fixed costs, the amount of which are set out in the rules (CPR 45) – there will be an amount of
fixed costs as shown on the claim form and an additional amount to be added on entering judgment.
Credit will be given for any amounts paid by the defendant, leaving a net balance due.

Question 32

2.6.2 Unspecified claims

Answer 32

In unspecified claims, the judgment will be on liability only, so there will be no amount of damages recorded. Instead, the matter will be listed for a subsequent hearing where evidence will be heard
on the issue of quantum and the judge will hand down a judgment recording the amount due, including interest and provision for costs.

Question 33

2.6.2 Unspecified claims

Answer 33

Section 35A Senior Courts Act 1981 / section 69 County Courts Act 1984 provide the court with the
power to award simple interest on debts due where eg there is no other provision (such as a
contractual term) allowing for interest to run.

Question 34

2.7 How to enter judgment following a claim being admitted

Answer 34

Once the claimant has established that they are entitled to judgment, entering judgment for a specified sum following an admission is an administrative process. There will be no judicial involvement and the claimant simply files the correct paperwork which will be processed by the court staff. There is no hearing.

Question 35

2.7 How to enter judgment following a claim being admitted

Answer 35

The claimant completes a request for judgment and reply to admission form within 14 days of
receiving notice of the admission. On this form they will indicate the judgment amount, including
interest, court fees and fixed costs, as well as the amount of any payments made by the defendant.

Question 36

2.7 How to enter judgment following a claim being admitted

Answer 36

On receipt of the request for judgment, the court staff will enter judgment and send this to the
parties. Once judgment is entered following the admission and the amount payable has been determined, the claim is effectively concluded. Unless otherwise agreed or stated on it, the judgment is payable by the defendant within 14 days
(CPR 40.11). Enforcement proceedings can be taken against the defendant to secure payment of
any sums outstanding after this time.

Question 37

2.8 Summary

Answer 37

• The defendant admits a claim by completing (and filing/serving as required) the appropriate admission form, which is part of the response pack, within 14 days of service of the particulars
  of claim.
• If a specified claim is admitted in full, judgment can be entered for the debt, interest, court fees and fixed costs, and the claim will be concluded.
• If a specified claim is admitted in part, judgment can be entered in part but the defendant must file a defence for the unadmitted part which will continue to trial.

Question 38

2.8 Summary

Answer 38

• If an unspecified claim is admitted, judgment will be for liability only and there will be a
  subsequent hearing to determine quantum.
• The defendant may admit liability in an unspecified claim and offer to pay a sum in satisfaction of the claim. This is effectively an offer in relation to quantum which, if accepted by the claimant, will conclude the claim on those terms.
• The defendant may ask for time to pay when making an admission in relation to any specified amount of money. If the claimant does not accept this proposal, payment terms will be determined by the court.

Question 39

3 Counting time

Answer 39

Most stages of a claim involve important time limits – derived from the CPR, from PDs and from
court orders. For example, the defendant is required to respond to service of the claim form /
particulars of claim within a given time limit if they want to avoid the risk of judgment in default.
It is of critical importance that parties are able to calculate deadlines and time limits accurately in order to comply with them. This process of calculating deadlines is sometimes called ‘counting time’.

Question 40

3 Counting time- Guidance in relation to counting time

Answer 40

Guidance in relation to how to count time is contained in another rule (CPR 2.8) which includes
worked examples of some common scenarios in order to assist understanding. This section summarises the most important rules when counting time. There are four of them.

Question 41

3.1 Rule 1. Clear days – day on which period begins

Answer 41

Under the CPR, any reference to a number of days (such as “The general rule is that the period
for filing a defence is 14 days after service of the particulars of claim”) means ‘clear days’ as defined by the rules. Firstly, the day on which a period begins is never included so you would always start counting on the following day – you might find it useful when counting to call the day on which a period begins ‘day zero’ and start counting ‘day one’ from the following day

Question 42

Example: Rule 1

Answer 42

‘The general rule is that the period for filing a defence is 14 days after service of the particulars of
claim’ When counting the 14 days, you do not count the day on which the period begins ie the day on
which the particulars of claim are served. So, if the particulars of claim are served on Tuesday,
‘day one’ for the purposes of counting time is on Wednesday

Question 43

3.2 Rule 2. Clear days – end of period defined by reference to an event

Answer 43

Secondly, if the end of the period is defined by reference to an event (for example, a hearing or
trial), the day on which that event occurs is not included.

Question 44

Example: Rule 2

The general rule

Answer 44

Notice of an application must be served at least 3 days before the hearing’ The end of the period of time (3 days) is defined by reference to an event (the hearing). So the day of the hearing would not be included when counting. ‘The general rule is that the period for filing a defence is 14 days after service of the particulars of claim’

Question 45

The end of a period is not defined by reference to any event

Answer 45

In this example, the end of the period is not defined by reference to an event. Rather, the period of
time is defined by reference to an event at the start of the period – the service of the particulars of
the claim. So the rule 2 does not apply to this example

Question 46

3.3 Rule 3. Clear days – days which do not count

Answer 46

Thirdly, where the specified period is 5 days or less, any Saturdays, Sundays, Bank Holidays,
Christmas Days or Good Fridays in the time period do not count.

Question 47

Example: Rule 3

Answer 47

‘Notice of an application must be served at least 3 days before the hearing. The hearing is on
Monday 10 January.’ When counting back 3 days from Monday, Saturday 8 January and Sunday 9 January do not count.

Question 48

3.4 Rule 4. Deadlines on days on which the office is closed

Answer 48

The fourth and final rule is that:
(a) Where a deadline relates to doing any act at the court office (such as filing a document at
court); and
(b) Applying the first three rules explained in this section, the deadline for doing that act ends on
a day on which the court office is closed:
Then the act is treated as on time if done on the next day on which the court office is open.

Question 49

Example: Rule 4

Answer 49

‘Where the claimant serves particulars of claim, then unless a copy of the particulars has already
been filed, the claimant must, within 7 days of service on the defendant, file a copy of the
particulars’. The particulars are served on Monday 23 August. The deadline for filing a copy at court is
therefore Monday 30 August, which is a bank holiday, and the court office is closed. The particulars will be treated as having been filed on time if filed on Tuesday 31 August.

Question 50

3.5 Summary

Answer 50

• Deadlines from the CPR, PDs or court orders must be calculated accurately to ensure
  compliance.
• When counting time, the day on which a period begins is never included.
• If the end of the period is defined by reference to an event (for example, a hearing or trial), the
  day on which that event occurs is not included.

Question 51

3.5 Summary

Answer 51

• Where the specified period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count.
• Where a deadline relates to doing any act at the court office and the deadline for doing that act ends on a day on which the court office is closed, then the act is treated as on time if done on the next day on which the court office is open.

Question 52

4 Default judgment

Answer 52

This section explains how a claimant can obtain judgment when a defendant fails to respond to
proceedings as required, and how such a ‘default judgment’ can be set aside.

Question 53

4.1 What is default judgment?

Answer 53

Default judgment: Applying for judgment to be granted in the claimant’s favour without a trial
if the defendant has not responded to the claim by either serving an acknowledgment of service or a defence within the prescribed time limits (CPR 12.1). It is also referred to as judgment in default ie in default of the defendant doing something

Question 54

4.1 What is default judgment?

Answer 54

If the claimant is successful in its default judgment application, the claimant has won the case. It
is therefore very important to calculate time limits accurately when filing documents. There are
some types of claim in which default judgment may not be obtained (CPR 12.2):
* claims for delivery of goods subject to an agreement regulated by the Consumer Credit Act
1974
* Part 8 claims
* any other claims where a practice direction provides that the claimant may not obtain default judgment.

Question 55

4.2 What must the claimant show to obtain default judgment?

Answer 55

The conditions the claimant must satisfy are (CPR 12.3):
* At the date on which judgment is entered, time has expired for filing an acknowledgment of
service (and the defendant has not filed either an acknowledgment of service or a defence) or
time has expired for filing a defence (where the defendant has filed an acknowledgment of
service but not a defence).

Question 56

4.2 What must the claimant show to obtain default judgment?

Answer 56

• The claim has not been admitted or satisfied by the defendant.
• No application for summary judgment or strike out has been made has been made by the
  defendant.

Question 57

4.3 Difference between default judgment, strike out and summary judgment
4.3.1 Difference between default judgment and strike out

Answer 57

The court has the power to strike out a statement of case (CPR 3.4). Strike out focuses on a statement of case and so covers cases which do not amount to a legally recognisable claim or defence. Default judgment covers cases where the defendant has failed to respond to the claim and does not look at the contents of the statement of case.

Question 58

4.3.2 Difference between default judgment and summary judgment

Answer 58

Default judgment is the consequence of the defendant failing to respond to a claim. Default judgment is therefore procedural: if a defendant fails to file an acknowledgment of service and/or a defence in accordance with the CPR time limits, the claimant can apply for default judgment. The court does not consider the merits of the case when ordering default judgment. In contrast, summary judgment covers cases which are weak on the facts, so the court will consider the merits of the case.

Question 59

4.4 Procedure for obtaining default judgment
4.4.1 Money claims – specified sum

Answer 59

Provided the conditions mentioned previously are satisfied (CPR 12.3), the claimant may file a request for judgment on the specified form and the application will be dealt with on paper. The court will make a judgment for the amount sought, fixed costs and interest accrued to the date of judgment.

Question 60

4.4.2 Money claims - unspecified sum

Answer 60

Provided the conditions mentioned previously are satisfied (CPR 12.3), the claimant may file a request for judgment on the specified form and the application will be dealt with on paper. The court will enter a judgment for a sum to be decided by the court and will set a timetable leading up to a hearing at which the court will decide that sum.

Question 61

4.4.3 Non-money claims

Answer 61

Provided the conditions mentioned on previous pages are satisfied (CPR 12.3): Non-money applications for default judgment (together with a small number of other claims, which are beyond the scope of this section) cannot be decided on paper. Instead the claimant must apply for a default judgment hearing to be listed at which the court will hear from the
claimant as to why default judgment should be granted and what judgment should be given. The court will then give whatever judgment it considers appropriate.

Question 62

4.4.4 Interest

Answer 62

A default judgement on a claim for a specified amount of money may include the amount of interest claimed to the date of judgment (CPR 12.7) provided:
* The particulars of claim include details of the interest (as required by CPR 16.4);

Question 63

4.4.4 Interest

Answer 63

• Where statutory interest is claimed (under s.35A of the Supreme Court Act 1981 or s.69 of the County Courts Act 1984), the rate is no higher than the rate of interest payable on judgment
  debts at the date when the claim form was issued; and
• The claimant’s request for judgment includes a calculation of the interest claimed to the date
  of the request for judgment.
  In any other case, the amount of interest will be decided by the court

Question 64

4.4.5 Claim against more than one defendant

Answer 64

A claimant may obtain a default judgment against one or two or more defendants and proceed
with the claim against the other defendants if the claim can be dealt with separately from the claim against the other defendants (CPR 12.9). Sometimes the claim cannot be dealt with separately eg where the claim against the two defendants is ‘in the alternative’, meaning the claimant alleges one (and only one) of the defendants is liable, but does not know which.

Question 65

4.4.5 Claim against more than one defendant

Answer 65

The success of one claim and the failure of the other go hand in hand, so they cannot be dealt with
separately. So the court will deal with the application for default judgment against one defendant
at the same time as it disposes of the claim against the other defendants – quite possibly at trial.

Question 66

4.5 Setting aside default judgment

Answer 66

A default judgment can be set aside on an application by the defendant or by the court of its own
motion (CPR 13.2 or 13.3). The purpose of the provision to set aside is to avoid injustice. An application to set aside judgment will usually need to be determined at a hearing, unless the claimant consents to the judgment being set aside.

Question 67

4.5.1 May or must set aside?
There are two types of cases for setting aside default judgment:
Cases where the court must set aside judgment (CPR 13.2)

Answer 67

If judgment was wrongly
entered:

Reasons:
* The time limit for
acknowledging service or
serving a defence has not,
in fact, expired when
judgment was entered; or
* An acknowledgment of
service or defence had, in
fact, been filed on time; or
* Summary judgment or
strike out had been
applied for before
judgment was entered; or
* The defendant had, in
fact, satisfied the whole of
the claim before judgment
was entered or admitted
the claim or required time
to pay.

Question 68

Cases where the court
may set aside judgment
(CPR 13.3)
If judgment was correctly
entered

Answer 68

Reasons the court may
exercise its discretion:
* The defendant has a real
prospect of successfully
defending the claim; or
* It appears to the court
that there is some other
good reason why
judgment should be set
aside or varied or the
defendant should be
allowed to defend.

Question 69

4.5.2 Cases where the court ‘may’ set aside

Answer 69

This is an application which must be supported by evidence.
If relying on ‘a real prospect of success’, it is not enough for the defendant to show an ‘arguable’
defence. The defendant must show that it has ‘a real prospect of successfully defending the
claim’. In assessing prospects of success, the court must not conduct a mini trial, but neither
should it accept everything in the defendant’s witness statement without analysis.

Question 70

4.5.2 Cases where the court ‘may’ set aside

Answer 70

If relying on ‘some other good reason why judgment should be set aside’, examples of a good
reason might be that the claimant lulled the defendant into believing a claim was not forthcoming, the claimant failed to serve a response pack, or the claim raises issues which should be given a full and fair hearing in the public interest.
‘May’ set aside provides the court with a discretion and therefore it must act in accordance with
the overriding objective.

Question 71

4.5.3 Delay

Answer 71

The court must also consider how promptly the defendant made its application to set the judgment aside (CPR 13.3(2)). The need to comply with time limits and to act promptly is an important feature of the CPRs.

Question 72

4.5.4 Court’s approach to setting aside: relief from sanctions

Answer 72

An application to set aside a default judgment where the court has discretion to set aside is an
application ‘for relief from any sanction’ (CPR 3.9). Therefore, the tests for relief from sanctions
laid down in Denton and others v TH White Ltd and another, Decadent Vapours Ltd v Bevan and
others and Utilise TDS Limited v Davies and others [2014] EWCA Civ 906 (collectively known as
Denton) are also relevant

Question 73

4.5.5 Order

Answer 73

The court may set aside default judgment with conditions attached, eg that the defendant pays
the claimant’s costs of the hearing.

Question 74

4.6 Summary

Answer 74

Default judgment can be applied for by the claimant for judgment against the defendant
without trial where:
- the defendant has failed to file the acknowledgment of service and/or defence on time
- the claim has not been admitted by the defendant; and
- the defendant has not applied for summary judgment or strike out.

Answer 75

• The procedure is to file a specified form and seek default judgment without a hearing for
  money claims of a specified or non-specified sum. For non-money claims, there must be an
  application (rather than simply a request using the form) and a hearing.
• The defendant can apply to set aside default judgment.
• There are two types of cases for setting aside default judgment: where the court ‘must’ set
  aside and where the court ‘may’ set aside.
• Cases where the court ‘may’ set aside are treated as applications for relief from sanctions