If you are a defendant needing to apply to set aside a default judgment or a claimant with a default judgment which the defendant is seeking to set aside, our litigation team would be happy to assist you.
It is common for a defendant to claim that he, she or it did not receive the claim paperwork. Often, this is may be a mere delaying tactic but there are occasions where a defendant can show they are no longer at the address where the paperwork was sent.
If that is the case, as a claimant, you would be taking a big risk in seeking to dispute the necessity to start again. If you are a defendant who can clearly and unequivocally show that you are not at the address concerned and also explain how you became aware of a default judgment against you, you should first write to the claimant or lawyers appointed setting out the position. If you are then compelled to apply to court to set aside, you will probably be on very solid grounds and have good chances for claiming your legal costs (if any) from the claimant.
Under Rule 13.3(1) of the Civil Procedure Rules (CPR), the court can use its discretion to set aside or vary a default judgment if the applicant can show that:
It is also important for the defendant to make the application for default judgment to be set aside as soon as they become aware of the judgment, consistent with taking a county court judgment against them seriously and to avoid prejudice to the claimant, who believes that he, she or they have a valid judgment and may be spending time and money on considering how to enforce that judgment. The promptness of his application will be taken into account by the court. Any application must be submitted with supporting evidence.
In a recent case, the applicant had delayed 18 months in applying to set aside judgment. This very lengthy delay was based on the claim that the defendant’s mental health issues had caused the delay. That argument was initially accepted by the lower courts who accepted it based on a discretion in the relevant CPR rule (Rule 39), in turn, no doubt linked with the overriding objective and the defendant’s apparent ill health.
The case reached the Court of Appeal, which overturned the ruling. Firstly, that court found that whilst the defendant was on the one hand perhaps enduring some mental health issues, he was at the same time able to make other applications to the court on different issues, so he wasn’t out of action per se. Also, in pure legal terms, the court found that the lower Judge did not have the ability, under the wording of CPR 39, to exercise discretion unless the defendant had satisfied other tests first, which he couldn’t.
If you need experienced solicitors for advise on how to apply to set aside a County Court Judgment or are a Claimant and the defendant is threatening to or has applied to set aside your judgment, get on touch with us for expert legal advice.