Applying to Set Aside a Default Judgment? Don’t Make These Mistakes

Mistakes in Application to Set Aside JudgmentIf you’re making an application to set aside a judgment, the process is not always straightforward. There are a few mistakes that you’ll need to avoid.

Here are three of the most common pitfalls that people fall into.

1. Delaying Too Long

One of the key factors that a court will look at whether your application has been made promptly.

The word ‘prompt’ is not defined and every case will be judged on its own merits. However, don’t hang around. You must act quickly to maximise your prospects of success.

The judge may have some sympathy with you if you can show that you weren’t aware of the CCJ when it was issued. For example, you may have been out of the country or sick in hospital.

However, the courts are strict (and getting stricter). You shouldn’t presume that they will have any sympathy with a late application. We recommend that you apply straight away. You can submit any evidence later.

2. Not making the most of the witness statement

The Court has a discretion to set aside the default judgment. But they will need some persuading.

Ideally, you need to show that you have a real prospect of successfully defending the claim. This doesn’t mean that you have to prove your case at this stage but you do need to show that your defence is more than just fanciful.

Explain  in the witness statement why you should be allowed to defend the claim. Provide a draft defence as an exhibit. That helps the court to understand what the dispute is about and why they should allow the case to proceed to a proper trial.

If you don’t have a defence to the claim, don’t panic. The court can still remove the judgment in other circumstances but you do have to show a good reason.

The most common reason is the effect the CCJ has on your credit record. If you admit the claim but you didn’t pay it because you weren’t aware of it, then it would be unjust for you to have an adverse credit record for the next 6 years.

Explain in the witness statement the detriment that the default judgment is causing you and why you were unable to respond to the claim before the judgment was entered. Often a court will set the judgment aside, even though the claim is admitted.

3. Presuming that the Court will set aside the judgment if both parties agree

After you’ve issued the application, it’s sensible to try to negotiate with the claimant.

However, it sometimes comes as a surprise to find that a court refuses to set aside a judgment, even though both parties consent to it. You should still give the court a good reason. Consent, on its own, is not enough.