Default Judgment: How It Works and How to Set One Aside

If someone is sued in the civil courts and does nothing, the claimant can ask the court to enter judgment against them without a trial. This is called default judgment. It is common in debt claims and other money cases where the defendant has ignored the paperwork, but it also applies more widely under the Civil Procedure Rules.

Default judgment is not the end of the road. If it has been entered wrongly, or if there is a genuine defence, the court can set it aside. The rules are strict though, and waiting too long or turning up without evidence can make things worse.

When a claimant can apply

Once a claim form has been served, the defendant normally has 14 days to respond. Filing an acknowledgment of service buys another 14 days, giving 28 days in total from service of the particulars of claim to file a defence. If the defendant files nothing, or files an acknowledgment but then fails to serve a defence in time, the claimant can apply for judgment in default under Part 12 of the Civil Procedure Rules.

There are two routes:

• Judgment in default of acknowledgment of service, where the defendant has not responded at all within the 14 day period.
• Judgment in default of defence, where the defendant acknowledged the claim but then missed the deadline to file a defence.

For money claims, the claimant can request judgment using a simple form (N225 for a specified sum, N226 for an unspecified sum) without a hearing. For other types of claim, such as those involving delivery of goods or claims against children and protected parties, an application under Part 23 is needed and a judge will decide.

The court will check that the time for responding has genuinely expired and that the claim was properly served before entering judgment. If judgment is entered, it usually orders the defendant to pay the sum claimed plus interest and fixed costs. For unspecified sums, judgment will be entered for an amount to be decided by the court at a later hearing, often called a disposal hearing.

Finding out judgment has been entered

The first a defendant sometimes hears about it is a judgment notice through the post, or a sudden entry on their credit file. County court judgments are registered on the Register of Judgments, Orders and Fines, which lenders check, so the practical effect can be immediate even before any enforcement begins. If the defendant wants to challenge the judgment, they need to act quickly. The options are to apply to set it aside, or in some cases to vary it. Setting aside is governed by CPR 13.

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Mandatory set aside under CPR 13.2

The court must set aside a default judgment if it was entered when it should not have been. The main situations in CPR 13.2 are:

• The time for filing an acknowledgment of service or defence had not actually expired when judgment was entered.
• The whole claim had been paid before judgment was entered.
• An acknowledgment or defence had in fact been filed in time, or an application to strike out or for summary judgment had been made, but judgment was entered anyway.

These are procedural errors. If one of them applies, the defendant does not need to show they have a defence on the merits. They just need to show the judgment should not have been entered, and the court has no discretion to refuse.

Discretionary set aside under CPR 13.3

Most applications fall under CPR 13.3, which gives the court discretion to set aside or vary a default judgment. The defendant must show either:

• that they have a real prospect of successfully defending the claim, or
• that there is some other good reason why the judgment should be set aside or varied, or why they should be allowed to defend.

"Real prospect of successfully defending" is the same test used for summary judgment. The defence has to be more than fanciful, but it does not have to be bound to succeed. The defendant needs to put forward something a court could realistically accept at trial, backed by evidence rather than bare assertion.

CPR 13.3 also says the court must have regard to whether the application was made promptly. Delay on its own can be fatal, even where the proposed defence looks arguable. A defendant who sits on their hands for months after finding out about the judgment will struggle, and the court will often treat the application as one for relief from sanctions, applying the Denton principles.

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How to apply

The application is made on form N244, filed at the court that entered the judgment. You will need to pay the application fee, or apply for help with fees if your income and savings are low. Check the current fee on GOV.UK, as it varies by the type of application.

The application must be supported by evidence, usually a witness statement with a statement of truth. The statement should cover:

• when and how the defendant first became aware of the claim and the judgment;
• why no acknowledgment or defence was filed in time;
• the basis of the proposed defence, set out in enough detail for the court to assess it;
• any documents that support the defence, exhibited to the statement, such as emails, letters, contracts, invoices or bank statements;
• why the application has been made when it has, particularly if there has been any delay.

A draft defence is often attached. It is not strictly required, but it helps the judge see that the defence is real and properly thought through.

The hearing and what follows

Most set aside applications are decided at a short hearing, often by telephone or video. The judge will look at the witness evidence, hear brief submissions, and decide whether the CPR 13 test is met. Possible outcomes are:

• setting the judgment aside unconditionally, so the case proceeds as a defended claim;
• setting it aside on conditions, such as paying money into court;
• refusing the application, in which case the judgment stands.

If the judgment is set aside, the court will usually give directions for the defence to be filed and for the claim to move forward through the usual track allocation. For a remote hearing, test the video or phone link in advance, find a quiet room with a reliable connection, and have your papers and draft defence to hand.

An unsuccessful application is expensive. The defendant will normally be ordered to pay the claimant's costs of attending, which can run into several hundred or several thousand pounds depending on the case. Those costs are added to the existing judgment debt.

If there is any doubt about whether a defence has real prospects, or about how to present the evidence, get advice before filing the N244. Citizens Advice, law centres and solicitors offering initial consultations can all help. A well prepared application, made promptly and backed by evidence, stands a far better chance than a rushed one with a thin excuse for delay.

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