Often the first time a defendant becomes aware that they have received a default judgment is when they receive the result of a credit check.
They didn’t receive the claim form and so they had no opportunity to respond. They didn’t receive the judgment and so they were unable to pay it before it reached their credit record.
Why did the defendant not receive the claim form?
There could be a number of reasons why the claim form was not received.
For example, the original court papers may have been sent to the wrong address – perhaps a previous address. If this was the last address known to the claimant, the judgment will be valid unless they had reason to believe you had moved.
Another common situation is that the papers were sent to a company’s registered address but not forwarded to the trading address. Many companies have a registered address for purely administrative reasons. If court papers are sent to this address, they are deemed to be valid. That’s why it’s so important that proper forwarding facilities are in place.
It may even be that the papers were sent to the right address but arrived at a time when the defendant was away, for example during a holiday or a long trip abroad.
Whatever the reason for the defendant not replying, the judgment will be valid and enforceable if it was sent to a current address, a registered address or even the last address known to the claimant.
If it is not set aside, it will have to be paid and will continue to have a negative effect on the credit rating.
Applying to have judgment set aside
The court rules give the court a discretion to set aside a judgment if there is a good reason. This can include a situation where the defendant didn’t receive the papers.
The first step will be to make an application to have the judgment set aside. This is done on court form N244. The application must be made promptly and should be supported by a witness statement.
The court will need some explanation as to why the court papers were not received. They will also want some idea of whether or not you are likely to have a good defence to the claim. All this should be included in the witness statement.
Ideally, a defendant also explain how the default judgment has affected them. For example, the CCJ may mean they are unable to obtain a mortgage or it might have affected their job prospects.
What if the claimant consents to the judgment being set aside?
If the claimant consents to the judgment beings set aside, both parties can sign a court document known as a consent order.
Whether or not the judgment is set aside is still at the discretion of the court but a consent order makes it much more likely.
The consent order can be filed before or after the application to set aside judgment has been made.
