Set aside / vary a default judgment Flashcards
What is a default judgment?
Where a court finds that the respondent has failed to do/not do something and so orders judgment against them
What parts of the CPR is default judgment dealt with?
Part 12 - Obtaining default judgment
Part 13 - Setting aside default judgment
C applies for a default judgment via a form - not an advocacy scenario
What parties can apply to set aside a default judgment?
The defendant only
Under Part 13, is the power of the court to set aside default judgment discretionary or mandatory?
Both - there are discretionary and mandatory grounds
Set out the test for mandatory setting aside of a default judgment
Note: there are 3 possible grounds
DJ must be set aside if it was wrongly entered because:
- the claim had already been settled before judgment was entered into
- the judgment was entered into on the grounds of the respondent not submitting the acknowledgement of service on time, even though they did; or
- the judgment was entered into on the grounds of the respondent not filing a defence on time, even though they did
Set out the test for discretionary setting aside of a default judgment
Note: there are 2 potential grounds
- D has a real prospect of successfully defending the claim; or
- it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) D should be allowed to defend the claim.
Must both limbs of the discretionary test be met?
No - it’s an either/or test.
What must the court bear in mind in their decision to set aside default judgment on discretionary grounds?
Whether the application to set it aside was made promptly.