A default judgment is entered without a trial because the defendant did not file an acknowledgment of service or a defence in time (CPR 12.1 and 12.3). CPR Part 13 gives two ways to undo it. The court must set it aside if it was wrongly entered (CPR 13.2). In any other case it may set it aside or vary it if the defendant has a real prospect of successfully defending the claim, or there is some other good reason, having regard to whether the application was made promptly (CPR 13.3). And the Court of Appeal has applied the Denton tests for relief from sanctions to these applications since 2014; in 2023 it stated that they apply in their full rigour (FXF at [64] and [72]).

The free relief from sanctions checker works through the CPR 13.2 and 13.3 questions with your own dates and answers, and the set aside default judgment preset in our N244 application notice builder fills in the application. Neither predicts the outcome: setting aside under CPR 13.3 is for the court.

Jump to: CPR 13.2 · CPR 13.3 · promptness · Denton · the application and fee · costs

When the court must set it aside: CPR 13.2

The court must set aside a judgment entered under Part 12 if it was wrongly entered because (CPR 13.2):

  • for a judgment in default of an acknowledgment of service, a condition in CPR 12.3(1) or 12.3(3) was not satisfied: for example, the defendant had already filed an acknowledgment of service or a defence, or the time for doing so had not expired;
  • for a judgment in default of a defence, a condition in CPR 12.3(2) or 12.3(3) was not satisfied: for example, a defence had been filed, or the time for filing it had not expired; or
  • the whole of the claim was satisfied before judgment was entered.

CPR 12.3(3) adds that no default judgment may be obtained while the defendant’s application to strike out the claim or for summary judgment is undecided, where the defendant has satisfied the whole claim, including any claim for costs, or where the defendant has admitted liability for all the money claimed and asked for time to pay. CPR 13.2 says the court must set aside a judgment wrongly entered; it does not ask about the merits of the defence.

When the court may set it aside: CPR 13.3

In any other case, the court may set aside or vary the judgment if (CPR 13.3(1)):

  • 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 the judgment should be set aside or varied, or the defendant should be allowed to defend the claim.

A real prospect is one that is realistic rather than fanciful, and better than merely arguable. The test is close to the one for summary judgment, with one difference: on an application to set aside, the burden is on the defendant to satisfy the court that there is good reason why a judgment regularly obtained should be set aside (ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at [8] and [9]). The court will not conduct a mini-trial, but it need not accept without analysis everything a party says, particularly where contemporary documents contradict it (at [10]).

The court can attach conditions when it sets a judgment aside, including a condition to pay a sum of money into court (CPR 3.1(3)). Where the claimant abandoned another remedy in order to obtain the default judgment by request, that claim is restored when the judgment is set aside (CPR 13.6).

Promptness

The court must have regard to whether the application was made promptly (CPR 13.3(2)). The rule gives no number of days. Time runs from when the defendant received the judgment, or had, or could with reasonable diligence have obtained, enough knowledge of it to apply to set it aside (Gentry v Miller [2016] EWCA Civ 141 at [33]). In Gentry a delay of more than two months from that point, on those facts, meant the application was not made promptly (at [35]). Promptness counts twice: under CPR 13.3(2), and again among all the circumstances at the third Denton stage (at [24]).

The Denton stages apply too

A default judgment follows a failure to file an acknowledgment of service or a defence. In FXF v English Karate Federation Ltd [2023] EWCA Civ 891 the Court of Appeal stated that the Denton tests apply in their full rigour to applications to set aside default judgments (at [72]). The order of the analysis (FXF at [67]; Gentry at [24]):

  1. The express requirements of CPR 13.3: a real prospect of successfully defending the claim, or some other good reason, and whether the application was made promptly.
  2. How serious or significant the default was. This is the failure to file the acknowledgment of service or defence that led to the judgment, not the delay after it (Gentry at [24]).
  3. Why the default occurred.
  4. All the circumstances of the case, so as to deal justly with the application, including the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders (CPR 3.9(1); Denton v TH White Ltd [2014] EWCA Civ 906 at [24]). Promptness is weighed again here.

The outcomes show the rigour. In Gentry the insurer’s application, made after a delay of more than two months, ought to have been refused despite its allegations that the claim was fraudulent (at [38] and [42]). In FXF the default judgment stayed set aside, but the Court of Appeal said that the defendant which had applied should regard itself as extremely fortunate, and that parties who do not comply with the rules may expect no indulgence from the court (at [73]).

Making the application

  • The form and the fee. An application notice on Form N244. The court fee is £321 on notice (fee 2.4(a)), or £126 where the claimant consents (fee 2.5(a)). An order by consent setting aside an unsatisfied default judgment can be entered and sealed by a court officer where no party acts in person and no approval is needed (CPR 40.6(2) and (3)(b)(iv)).
  • The evidence. An application under CPR 13.3 must be supported by evidence (CPR 13.4(3)), usually a witness statement covering how and when the claim form was served, when the defendant learned of the judgment, why no acknowledgment of service or defence was filed, the defence and the facts behind it, and when and why the application was made. Exhibiting a draft defence is the usual way to show a real prospect of success; that is practice, not a rule.
  • Where it is heard. Where the claim is for a specified amount of money, the defendant is an individual and the judgment was obtained in a court which is not the defendant’s home court, the application is transferred or sent to the defendant’s home court, unless the claim was started in a specialist list (CPR 13.4(1) and (2)).
  • The statement of costs. At the end of a hearing lasting no more than a day, the general rule is that the court assesses the costs of the application summarily (PD 44 para 9.2). A party who intends to ask for its costs must file and serve a statement of costs at least 24 hours before the hearing (PD 44 para 9.5(4)(b)); the free N260 statement of costs builder fills it in.

The costs of the application

Who pays is for the court, which has a discretion as to whether costs are payable by one party to another, their amount and when they are paid (CPR 44.2(1)). Practice Direction 44 lists the costs orders the court commonly makes before trial. One is “costs thrown away”: where, for example, a judgment is set aside, the party in whose favour the order is made is entitled to the costs incurred as a consequence, including the costs of the hearing at which the judgment was made, of the hearing to set it aside and of any steps taken to enforce it (PD 44 para 4.2). The same table explains costs in the case, costs reserved and the other common orders, and the free costs order decoder says what each means for who pays. If the order does not mention costs, the general rule is that no party is entitled to costs in relation to it (CPR 44.10(1)). Our guide to Form N260 and summary assessment covers the statement of costs in detail.

Default costs certificates follow a different rule

Part 13 applies to judgments entered under Part 12 (CPR 13.1). A default costs certificate is set aside under CPR 47.12 instead: the court must set it aside if the receiving party was not entitled to it, and in any other case may set it aside or vary it if there is some good reason why the detailed assessment proceedings should continue. The application must be supported by evidence, the court has regard to whether it was made promptly, and as a general rule the applicant files a copy of the bill, the certificate and the draft points of dispute it would serve (PD 47 para 11.2). The fee is £152 (fee 5.5), and the N244 builder has a preset for it.

How DMD Costs can help

We do not conduct litigation, and we do not act on applications to set aside. DMD Costs prepares and negotiates claimant costs for solicitor firms in housing disrepair, clinical negligence and MoD NIHL claims, including bills for costs ordered to be assessed if not agreed. The fee is fixed and agreed before any work begins.

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