Challenging Default Judgment: A Second Bite of the Cherry?
As we explained in our previous article, the court’s rules (the CPR) set out specific circumstances in which it must set aside a default judgment if has been ‘wrongly entered’.
If you don’t satisfy those however, all may not necessarily be lost. There may be a second bite of the cherry.
It may be possible to raise an alternative challenge, to set aside default judgment (this time under CPR Rule 13.3), provided that you can meet three key conditions (summarised below):
- the first condition is that as the defendant, you will need to satisfy the court that either:
i. You have a real prospect of successfully defending the claim; or
ii. That there is some other good reason why:
a. the default judgment against you should be set aside or varied; or
b. you should be allowed to defend the claim;
- the second condition is that you will need to satisfy the court that you have brought your application “promptly”; and
- finally, you must also persuade the court that you should be granted “relief from sanctions” (which is essentially the nature of the application).
Persuading a court that you be granted relief from sanctions is an important application to make, and each case will turn on its own facts. In assessing an application, the court will consider (under CPR Rule 3.9) all of the circumstances of the case, and several specific factors, including the need to enforce compliance with the rules.
The court’s power to order a set aside of default judgment is ultimately discretionary, so it’s important to present as persuasive an application as possible, supported by robust evidence.
Should you need any advice in respect of a default judgment that has been entered against you, or assistance in making an application, please contact our commercial litigation team here without delay (mindful of second condition: to make an application ‘promptly’!).