Set aside / vary a default judgment

Question 1

What is a default judgment?

Answer 1

Where a court finds that the respondent has failed to do/not do something and so orders judgment against them

Question 2

What parts of the CPR is default judgment dealt with?

Answer 2

Part 12 - Obtaining default judgment
Part 13 - Setting aside default judgment

C applies for a default judgment via a form - not an advocacy scenario

Question 3

What parties can apply to set aside a default judgment?

Answer 3

The defendant only

Question 4

Under Part 13, is the power of the court to set aside default judgment discretionary or mandatory?

Answer 4

Both - there are discretionary and mandatory grounds

Question 5

Set out the test for mandatory setting aside of a default judgment

Note: there are 3 possible grounds

Answer 5

DJ must be set aside if it was wrongly entered because:

1. the claim had already been settled before judgment was entered into
2. the judgment was entered into on the grounds of the respondent not submitting the acknowledgement of service on time, even though they did; or
3. the judgment was entered into on the grounds of the respondent not filing a defence on time, even though they did

Question 6

Set out the test for discretionary setting aside of a default judgment

Note: there are 2 potential grounds

Answer 6

1. D has a real prospect of successfully defending the claim; or
2. 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.

Question 7

Must both limbs of the discretionary test be met?

Answer 7

No - it’s an either/or test.

Question 8

What must the court bear in mind in their decision to set aside default judgment on discretionary grounds?

Answer 8

Whether the application to set it aside was made promptly.